NYC challenges height cut to contested Upper West Side condo tower

New York City is challenging an exceptional ruling by a State Supreme Court judge that would reduce the height of a nearly completed Upper West Side condo tower.

In February, Judge W. Franc Perry ordered that the Department of Buildings revoke permits for 200 Amsterdam Avenue—the neighborhood’s tallest tower at 52-stories—and remove all floors that exceed the area’s zoning limit. The ruling came out of a lawsuit by opponents who argue that the developers, SJP Properties and Mitsui Fudosan America, abused zoning rules with a “gerrymandered” 39-sided zoning lot that takes advantage of unused development rights from nearby properties. The result is a tower that rises well beyond the roughly 20 stories that would have normally been allowed to rise on the lot.

This week, the Department of Buildings (DOB) issued a bulletin effectively banning the use of partial tax lots to bulk up the allowable footprint of a property. The clarification took effect immediately and is not retroactive, meaning it won’t apply to 200 Amsterdam Avenue but will apply to developments looking to use the same technique in the future. Now, in a somewhat convoluted but not entirely surprising twist, the city has filed an appeal seeking to overturn the court ordered height chop at 200 Amsterdam Avenue, arguing that while the city will prevent abuse of zoning laws in the future, the building is currently legal.

“We closed the loophole that allowed the developers of 200 Amsterdam to legally gerrymander a 39-sided zoning lot to construct a luxury tower. Now, we are challenging the judge’s ruling that the building violated zoning laws,” City Hall spokesperson Jane Meyer said in a Tuesday statement. “It is the City’s responsibility to fix flawed policy—not the Court’s—and we must appeal this decision because of its far reaching implications for how policy is shaped.”

Since its inception, the project has faced fierce opposition from local elected officials, preservationist groups, and civic organizations with arguments that the building flouts the city’s zoning rules because developers cobbled together the tower’s zoning lot. Opponents have filed several lawsuits, restraining orders, and motions to the Board of Standards and Appeals, which sided with the developers multiple times (most recently in June), in an effort to stop the project from rising.

In a last ditch attempt, the Municipal Art Society and the Committee for Environmentally Sound Development jointly filed an Article 78 petition against the project last year, alleging that the Board of Standards and Appeals failed to reexamine the case in accordance with the city’s zoning code. And this time, Perry sided with the plaintiffs.

Lawyers for the developers insist that the project is legally sound and have repeatedly pointed to a 1978 DOB rule known as the “Minkin Memo” that says a zoning lot could consist of partial tax lots. The new DOB bulletin eliminates that precedent, plainly stating “a zoning lot may not consist of parts of tax lots” but crucially adds, “unless a permit has been issued in reliance on such zoning lots prior to the date of this bulletin.”

In a statement, Nicole Kolinsky, a spokesperson for the developers of 200 Amsterdam Avenue said that DOB’s new bulletin “clearly states previous applications of the Minkin Memo relying on partial tax lots, which includes numerous existing buildings in the city, are permissible, which includes our permit issued in 2017.”

“Zoning regulations should be interpreted and enforced lawfully and transparently through the proper administrative and legislative process,” said Kolinsky. “Without that, New York City’s economic growth will suffer at a time when the City is already facing a critical housing shortage. We will continue to vigorously appeal this ruling in partnership with the City and are confident that the facts and justice will prevail.”