Paul Selver testifies before the Board of Standards and Appeals. Image credit: BSA

Board distinguished the application from relevant case law.  On July 28th, the Board of Standards and Appeals voted to reopen and amend a variance for the applicant, 124 West 24th Street Condominium, to facilitate the conveyance of unused development rights.  The site from which the rights were to be transferred was the subject of a previous Board variance and could not be transferred without Board approval.

The Board held a public hearing on March 10, 2015 with a continued hearing on June 23.  Paul Selver of Kramer Levin testified for the applicant that amending the variance to facilitate transfer of the rights did not undermine the integrity of the Board’s findings in granting the original variance.  Mr. Selver argued the valuation of the rights at the time of the original variance, while high, was done at a time when the transfer market was limited and a conforming development would not yield a reasonable rate of return.  Mr. Selver also argued because the subject site and the proposed transfer site are under separate and unrelated ownership, and have been since the time of the original variance, the matter at hand is distinguishable from the court decision in Bella Vista v. Bennett (89 N.Y. 2d 565 (1997)), permitting the amendment.

On July 28, 2015 the Board voted 4-0 to reopen and amend the variance to allow for transfer of the development rights.  In its finding, the Board recognized the application was distinguishable from the Bella Vista holding in that the proposed use of the development rights was not foreseeable by either the applicant or the Board at the time of the original variance.

BSA:  124 West 24th Street (174-04-BZ) (July 28, 2015) (Kramer Levin Naftalis & Franked LLP, for 124 West 24th Street Condominium, owner).

By: Jessica Soultanian-Braunstein (Jessica is the CityLaw Fellow and a New York Law School Graduate, Class of 2015)