In a last-ditch effort to block what would be the Upper West Side’s tallest building, opponents have revived their challenge against a 69-story tower’s underlying zoning and are filing a request to revoke its permits.
Landmark West and the City Club of New York brought their case to the city’s Board of Standards and Appeals (BSA) on Tuesday, arguing that the Extell-developed, Snøhetta-designed limestone and bronze tower rises higher than the area’s special district allows.
“It is just so frustrating,” City Council member Helen Rosenthal testified. “As I, and other local elected officials have pointed out repeatedly, the building permits relies on a flawed interpretation of the zoning resolution.”
For the last three years, community advocates, Rosenthal, and Manhattan Borough President Gale Brewer have charged that the tower at 50 West 66th Street, which is propped up by a series of controversial mechanical voids, violates the Special Lincoln Square District and that the area’s zoning is not properly applied across the project’s split lot.
But Extell’s zoning lawyer David Karnovsky, the former general counsel to the Department of City Planning, points to a specific provision in the area’s zoning that allows for a slim tower of unlimited height so long as 60 percent of the building’s bulk is in a podium no higher than 150 feet tall. The neighborhood is currently dotted with buildings that do not rise higher than the realm of 30 stories.
Much of Tuesday’s debate centered around the special district’s language and whether it bars such towers even if it does not explicitly say so in the zoning resolution. Attorney John Low-Beer, representing the City Club, asserts that the literal language is “contrary to the obvious purpose” of the zoning text and says the exact wording should not be followed if that means green-lighting a building that is out of context with the neighborhood.
That argument, Karnovsky argues, is a moot point that shouldn’t stifle unforeseen buildings.
“As we all know, the drafters never had a perfect crystal ball and the fact that development occurs which may have not been anticipated by the drafters is not a basis for having this board rewrite the zoning,” says Karnovsky.
The Department of Buildings is of a similar mind, stressing that “absent clear and unambiguous language” determining the intent is “only really speculation,” charges the Department of Building’s (DOB) assistant general counsel Michael Zoltan. Without that clear language, Zoltan says, DOB cannot revoke the tower’s permits.
In a declaration that does not bode well for opponents, the chair of the BSA, Margery Perlmutter, expressed misgivings about inferring meaning from the city’s zoning where it isn’t explicitly stated in the actual resolution.
“Laws are made for us to follow and when they’re clear we follow them and when we don’t have a question about them we don’t ask the question,” says Perlmutter. “It’s only when the language is ambiguous that you look at legislative intent.”
The challenge will return to the BSA on September 10 where the board will either quash the challenge or continue to mull the merits of the case.
Tuesday’s hearing was far from the first obstacle Extell’s tower has faced. The DOB threatened to pull the project’s permits in January unless the plans were amended to accommodate zoning and safety concerns. Changes were made and the city approved the new plans weeks later.
The move prompted an April state Supreme Court lawsuit from the City Club, but Justice Barbara Jaffe shot down the challenge when she dismissed the case in June. The club is in the midst of appealing the ruling.