Thank you to Chair Perlmutter and the members of the Board of Standards and Appeals for the opportunity to testify today.
We are here to strongly oppose Sutton 58 Holding Company LLC’s request to exempt its development at 428-432 East 58th Street from zoning text that is the result of a community-led grassroots zoning text change approved by Community Board 6, Manhattan Borough President Gale Brewer, the City Planning Commission, and the City Council.
We are proud to represent the community surrounding the site that is the subject of today’s hearing.
The effort by a the East River Fifties Alliance, a community group with over 2600 members, to rezone the narrow streets east of First Avenue between 51st and 59th Streets and the progress being made in the ULURP proceeding for that rezoning were publicly known to the developers, not only before they began laying their foundation, or before they applied for the permits, but before they even purchased the property.
As the Board is aware, the vesting provisions of the Zoning Resolution are designed to protect owners of real estate from unforeseen zoning changes which unfairly restrict development after properties are acquired. In this instance, however, the applicant acquired the property with full knowledge of the planned zoning restrictions, and thereafter, rather than slowing construction activity to avoid potential prejudice, increased it, often working beyond the hours permitted by existing permits. The applicant is seeking to turn the vesting provisions of the Zoning Resolution upside down.
Section 11-331 of the Zoning Resolution, which allows construction under certain conditions, is being subverted by the applicant for the purpose of creating an unfairness. After the zoning change was adopted, the applicant continued to perform construction work on the building, proceeding at its own risk and in bad faith, even though a full stop work order had been served on December 1, 2017.
This zoning change was intended to cover this property. As you may know, the City Planning Commission approved the ERFA application with a grandfather clause exempting this particular building, but this clause was resoundingly City Council overturned by the City Council, with a vote of 45 in favor, 0 against, and 1 abstention. At the Council vote, I stated, “We removed the grandfathering provision that the City Planning Commission has added erroneously.”
The applicant has since argued that I intended for the developer to seek recourse through the appeal process to the BSA under the vesting provisions of ZR 11-331, as they have done. The intent of this comment was only to state that it was the developer’s right to appeal to the BSA, and in no way an endorsement of the validity of such an appeal, which I am here today to wholeheartedly oppose.
This work to complete this foundation was done with illegal After Hours Work Variances. After Hours Work Authorization may only be granted for one of five reasons specifically enumerated under §24-223(e) of the Administrative Code. The After Hours Variance applications in this case cited a reason of “Public Safety” and were approved for “Other,” but the description of work included only work that does not qualify for “Public Safety” and which was also done during regular hours.
The Board of Standards and Appeals must make a finding of fact as to each of the After Hours Work Variances. It must determine whether such authorizations were properly based on any of the five enumerated reasons. Any work authorized for “Public Safety” reasons must not include work that is also done during regular hours without that same public safety concern. Finally, any foundation work done under an After Hours Variance in violation of the law may not be counted for the purposes of establishing a foundation.
Given the facts, the Board should find that none of the After Hours Variances were properly issued, thereby disqualifying any and all of the foundation built during those illegal After Hours Variances.
Once the rezoning application was nearing a final vote, the developers began to take last resort actions in an attempt to convince this board that their property should be exempted from the impending rules. These actions included doing work for hours after their permits expired and simply doing work with no permit at all.
The issue of fact in this proceeding is whether the foundation is substantially complete, and the Board of Standards and Appeals has a long tradition of independently inspecting sites. However, while the developer was preparing their appeal to the Board of Standards and Appeals, and even after filing this appeal, the developer continued work on the building in question, concealing, altering and destroying the physical evidence of progress at the time of the zoning change.
In light of the concealment and alteration of the physical evidence of the building’s construction on the day of the rezoning preventing any independent evaluation and analysis, the BSA must not reward this act, and must assume that the building was not substantially complete. Should the BSA not make this assumption, it must require that the developer provide details and supporting documentation for all work done since adoption.
This Board serves a crucial purpose, to ensure New York City’s Zoning Resolution is not so rigid that commonsense and fairness are erased by rules for rules’ sake. Specifically, the power to vest properties into the zoning code as written at the time the building’s foundation is completed is an important way of ensuring that developers are not surprised by changes to city law, finding themselves in a situation where they have just poured their savings into something they can no longer afford.
The scenario you are considering today is a distortion of the spirit of this law. The developers did not find themselves stuck with a foundation they could do nothing with. They poured their foundation illegally, partially in the final hour and partially after midnight, as a last-ditch effort to convince this Board that they were stuck with it and should thus receive special dispensation. A total of 1701 cubic yards of this foundation was poured utilizing unpermitted street closures. Of that, 180 cubic yards of cement was poured after the applicant’s permit expired. An additional 300 cubic yards was poured on the day of the zoning change’s adoption, and so it is not considered. Only 93 cubic yards of cement was poured without cutting any corners, with the permission of our city’s agencies. All the while, the developer did work utilizing illegally granted After Hours Variances.
This is not substantial completion of a foundation. This is an attempt to avoid the law. Please vote against approving this applicant’s request, in order to maintain the integrity of the zoning code and of this residential neighborhood.
