BSA hears dispute over interpretation of Sliver Law

Neighbors claimed that two Manhattan developments violated the height limit. On July 17, 2007, BSA held public hearings on the Department of Buildings’ issuance of permits for two projects: a one-story penthouse addition to 515 East Fifth Street and a one-story mechanical room addition to 441 East 57th Street. Local residents claimed that the penthouse and the mechanical room violated Section 23-692 of the zoning resolution, also known as the Sliver Law.

The City enacted the Sliver Law in 1983 to limit the height of buildings in certain zoning districts to either the width of the street, or to the height of an abutting structure if the abutting structure was taller than the street’s width. In 2005, the owner of 515 East Fifth Street added a sixth story and an additional penthouse set back from the street. While the sixth story did not exceed 60 feet, the width of East Fifth Street, local residents claimed that the nine-foot high penthouse did. Similarly, residents argued that the mechanical penthouse at 441 East 57th Street clearly violated the limit.

At BSA, Kevin Finnegan, representing the tenants association at 515 East Fifth Street, criticized Buildings’ reasoning for granting the permits. Calling it a very simple case dealing with a completely unambiguous statute, Finnegan disagreed with Buildings’ argument that the Sliver Law was an aesthetic piece of legislation, designed only to address the visual impact that tall skinny buildings would pose on certain neighborhoods. Buildings should simply enforce the law as written, rather than interpret it to fit what it believed to be the intent behind the law.

Stephen P. Kramer, Buildings’ Senior Counsel, noted that the Sliver Law did not specifically define building height. This was done purposely, according to Kramer, for situations like this, where the building is consistent with the character of the neighborhood and the penthouse is setback from the front of the building and cannot be seen from the sidewalk. Kramer also claimed that Buildings’ practical construction of the Sliver Law made it applicable to the “real world.”

BSA Chair Meenakshi Srinivasan stated that she appreciated Buildings’ sympathy towards homeowners attempting to develop their land, but she remained troubled by its attempt to find a way around the clear language of the law. Commissioner Dara Ottley-Brown commented that Buildings was taking a clear standard and actually “muddling” it. Ottley-Brown questioned Buildings’ interpretation of the law, which she described as, “As long as you don’t see it, it’s okay.”

Marvin B. Mitzner, the attorney for the property owner of 515 East Fifth Street, argued that statutory intent is always relevant, whether or not the statute is plain or ambiguous. 515 East Fifth Street is not a “sore thumb,” commented Mitzner, nor is it a sliver such as the kind the Sliver Law was meant to prevent. Looking to the actual language of the law, Mitzner noted that the law differentiates “building or other structure” from “building.” Mitzner argued that the penthouse was an “other structure,” separate from the building, and should not be included in determining the building height. Commissioner Susan Hinkson questioned the characterization of the penthouse as a structure separate from the building, especially when it shares mechanical systems, stairs and plumbing with the building.

Several local residents testified against Buildings’ interpretation, as did representatives for Borough President Scott Stringer, City Council Member Rosie Mendez, State Senator Martin Connor and State Assemblyman Sheldon Silver.

BSA closed the public hearings on both buildings and set September 11, 2007 as the decision date on both cases.

BSA: Hearing on 515 East Fifth Street (67-07-A), July 17, 2007 (Kevin Finnegan, for residents; Stephen P. Kramer, for DOB; Marvin B. Mitzner, for 515 East Fifth Street LLC); Hearing on 441 East 57th Street (154-07-A), July 17, 2007 (Caroline Harris, for 435 E. 57th St. Condo Corporation).


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