BSA grandfathers partially completed developments

Controversial West Village developments go forward. After the City rezoned the Far West Village in October 2005, several developers were forced to stop construction on projects inconsistent with the new zoning. Developers of two projects, a 12,325-square-foot project at 163 Charles Street and a two-story addition to a six-story garage at 164 Perry Street, sought BSA approval to grandfather their development plans and continue work. Each developer filed two appeals with BSA, arguing to continue construction under the City’s zoning resolution and claiming that the permit had vested because of substantial time and money spent. BSA allowed the dual appeals.

The developer of 163 Charles Street, a proposed seven-story structure with a penthouse, argued that it met the City’s grandfather provision since it completed excavation and poured 87 percent of the foundation. Alternatively, the developer argued that the permit had vested since it spent $4.5 million for construction materials and fees, equaling 60 percent of the total construction costs, and had demolished the building on the site down to its foundation walls. If it were forced to build a code-compliant building, a new foundation would be needed at added cost.

With the 164 Perry Street project, the developer, West Perry LLC, claimed to have incurred about 47 percent of its total construction cost and only 50 to 60 days of construction remained. Although West Perry had completed only 29 days of construction prior to the zoning’s enactment, it argued that BSA should grandfather the permit because the work done prior to the new zoning was more complex than the work remaining.

The community and Council Member Christine Quinn strongly opposed both developments since they believed that the developers worked illegally and under unsafe conditions to complete sufficient work before the rezoning. With 163 Charles Street, the community had tried but failed to get the City to landmark the 1832 stable on the site before construction started. The developer demolished the stable down to its foundation prior to any action by the City to extend a historic district to the site.

At the BSA hearing, the community claimed that both developers had illegally completed work on weekends and nights. With the Perry Street construction, the community explained that West Perry worked under unsafe conditions that resulted in City violations. West Perry then added the costs to comply with the safety violations into the total construction costs submitted to BSA. BSA, they argued, should not reward developers working illegally or under unsafe work conditions.

BSA grandfathered both projects under the City’s resolution and found the permits vested. With 164 Perry Street, BSA noted that a comparison between the completed construction days and remaining time was only a gauge and was not dispositive. In this case, BSA found the work done prior to the rezoning more complex. Even if the costs spent to comply with the safety violations were subtracted, BSA ruled that West Perry’s incurred costs remained substantial. BSA also agreed with the developers that soft costs, such as architectural and contractors fees should be considered in vested rights cases but not under the City’s zoning resolution.

BSA: 163 Charles Street (326-05-BZY), (328-05-A) (January 31, 2006); BSA: 164/72 Perry Street (324-05-BZY), (348- 05-A) (January 31, 2006). CITYADMIN

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