Developer sought variance after Buildings revoked permit for twelvestory project. Wai Sun Realty obtained a permit to build a twelvestory, mixed-use building on a narrow through-block lot at 183 East Broadway in Manhattan’s Lower East Side. The bottleneck-shaped lot has approximately 26 feet of frontage along East Broadway and 44 feet of frontage along Henry Street. The project site is zoned R7-2 with a partial C1-5 commercial overlay.
Wai Sun demolished a five-story building to make way for the proposed twelve-story building. Wai Sun had erected a 91-foot, sevenstory steel and concrete shell when it received a stop work order from Buildings. Buildings revoked the permit after determining that the building would violate the sliver law, which applies in certain zoning districts and limits the height of buildings with widths less than 45 feet.
Wai Sun altered its project and proposed a seven-story building that retained the existing shell. Wai Sun needed a variance from BSA because the proposal would exceed the R7-2 district’s maximum floor area, building height, and lot coverage regulations. During the BSA hearing process, Wai Sun agreed to modify the project by eliminating the seventh floor which reduced the project’s height by ten feet.
Wai Sun argued that the narrow lot’s irregular shape and the site’s poor soil conditions made developing a complying building difficult. Wai Sun claimed that the sliver law, when applied to a through-block lot, required the construction of two buildings because it required a 60- foot rear yard equivalent in the center of the lot. According to Wai Sun, developing two residential buildings would increase development costs by $525,000. Wai Sun submitted asurvey indicating that none of the seven other nearby through-block lots were subject to the sliver law. Wai Sun also claimed that it had to demolish the pre-existing five-story building because it was unstable and could not be restored.
In its original variance application, Wai Sun asserted that a hardship in developing the site arose from a good faith reliance on Buildings’ approval of the original twelve-story project. However, Wai Sun abandoned this claim after BSA pointed out that the sliver law was unambiguous, and therefore the developer had constructive notice that the regulation applied to the site.
BSA granted the variance, finding that the lot’s conditions created practical difficulties in developing a complying structure. Noting that Wai Sun submitted five different development scenarios, BSA also found that no proposal built in strict conformance with the zoning resolution would generate a reasonable economic return. As to Wai Sun’s need to demolish the pre-existing building, BSA stated that the building’s poor condition and structural instability were not unique to the site and were problems associated with many nearby properties.
BSA: 183 East Broadway, Manhattan (July 19, 2011) (James Chin, for Wai Sun).