The proposal would allow for a two-wing through block building with two floors of retail in the Ladies Mile Historic District. On September 7, 2016, the City Council’s Subcommittee on Zoning and Franchises heard testimony on an application for a special permit to facilitate the development in Chelsea neighborhood. The developer would restore and maintain two landmark buildings on site—one of which contains the Adorama camera store. The remainder of the lot—currently a parking lot abutting both West 18th Street and 17th Street—is where the proposed building would be constructed. Despite strong support for applying Mandatory Inclusionary Housing from both Manhattan Community Board 5 and Manhattan Borough President Gale Brewer, the City Planning Commission voted unanimously to approve the special permit without applying affordable housing. For CityLand’s previous coverage on the development, click here.
Zoning Resolution Section 74-32 states that where a special permit application would allow a “significant increase in residential floor area,” Mandatory Inclusionary Housing must be applied. The developer and the City Planning Commission agreed that Mandatory Inclusionary Housing was only applicable to special permits which increase the maximum Floor Area Ratio allowed under the Zoning Resolution. The Zoning Resolution permits up to a 10.0 Floor Area Ratio on the proposed site, while the project would use 8.61. Therefore, they both agreed that Mandatory Inclusionary Housing did not apply to the project.
Proponents of applying Mandatory Inclusionary Housing to the project contended, however, that the special permit would allow for additional residential floor area that would not otherwise be permitted according to the as-of-right scenario proposed in the Environmental Assessment Statement. They argued that while the project would not increase the total Floor Area Ratio permitted by the Zoning Resolution, the site was further restricted by landmark law which prohibited the developer from building up to a 10.0 Floor Area Ratio. The special permit would allow the developer to build additional residential floor area beyond the landmark limitation and, therefore, Mandatory Inclusionary Housing should have been triggered.
At the September 7 hearing, Council Member Corey Johnson, who represents Manhattan Community Board 3, spoke against the proposal. According to Council Member Johnson, he received a twelve page legal memo from the developer’s attorney the previous night which he characterized as “galling.” The memo in question described the City Council’s authority to review the special permit as limited and stated that the law made it “clear that it would be improper and illegal for the Council to interfere with the [City Planning] Commission’s decision to issue the special permit.” In response, Council Member Johnson said that while he would have been happy to have a conversation about the applicability of affordable housing to the project, he found the memo offensive and an attempt to cut out the legs of the City Council.
Jeffrey L. Braun, of Kramer Levin and author of the legal memo, argued that applicants seeking a special permit under Section 74-711 of the Zoning Resolution need only meet specific requirements set forth in the statute. Braun noted that the City Planning Commission, which has initial jurisdiction on the matter, had already made the determination that the requirements for this development were met when it voted to grant the special permit. Further, he argued that unlike other special permits, Section 74-711 has very specific criteria and therefore does not allow for the City Council to consider broader public policy issues regarding the permit.
Council Member Johnson then questioned why the City Charter sent the permit before the City Council. He noted that there are some special permits and some ULURP applications that do not go to the City Council once the City Planning Commission makes certain findings and approves. In response, Valerie Campbell, of Kramer Levin, responded that the City Council should only review whether the statutory requirements had been met, and not consider broader policy decisions.
Chairperson Donovan Richards agreed with Council Member Johnson, calling the memo heavy-handed. Further, he noted that the City Council could vote down the special permit regardless of what the memo said.
Edith Hsu-Chen, Director of the City Planning Manhattan Office, spoke in support of the application. She posited that attempts to exceed the bounds of Mandatory Inclusionary Housing would place the over 1,800 affordable housing units currently in the pipeline at risk. Director Hsu-Chen reiterated the City Planning Commission’s position that the affordable housing law would only apply to special permits which increase the total Floor Area Ratio permitted under the Zoning Resolution.
City Council Member David Greenfield, Chair of the Committee on Land Use, seeking to clarify City Planning’s position, questioned whether the Commission considered that due to the landmark status of the buildings on the site the developer was legally restricted from building to the maximum Floor Area Ratio for the lot. Therefore, there was an increase in floor area because the special permit would allow the developer to build beyond what is permitted by landmark law, even if permitted by the Zoning Resolution. Director Hsu-Chen acknowledged that historic buildings can pose restrictions on developers, however regarding the application of affordable housing City Planning’s position remained that Mandatory Inclusionary Housing would only be triggered by an increase in the permissible Floor Area Ratio for the lot.
The application was laid over until the Subcommittee’s next scheduled meeting.
CC: 38-42 West 18th Street, Manhattan (LU 0432-2016) (Sept. 7, 2016).
UPDATE: On September 23, 2016, the City Council’s Subcommittee on Zoning and Franchises voted 5-0 to approve the application and referred the application to the Committee on Land Use. Chairperson Donovan Richards, in recalling the proposal for a vote, laid out two reasons for why the Subcommittee did not believe Mandatory Inclusionary Housing should apply. First, the maximum floor area permitted on the site by the zoning resolution would not change as a result of the special permit. Second, the developer had shown that as much or more residential floor area could be built without the special permit as-of-right. Council Member Corey Johnson stated that while he was disappointed that the Council was unable to apply affordable housing to the site, he was glad for the developer’s financial contribution to the affordable housing fund and recommended approval of the application.
By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).