Developer planned a 19-story dormitory building without an existing school affiliation. BSA denied developer Gregg Singer’s appeal from a Department of Buildings determination rejecting Singer’s application to build a 1 9- story, 222-unit student dormitory building on the site of former P.S. 64, located at 609 East 9th Street in the East Village. Singer had acquired the five-story, former elementary school from the City for $3.15 million at a 1 998 auction. The existing building served as a school until the 1970’s, after which it housed the CHARAS/EI Bohio community center. The auction sparked three years of litigation through which CHARAS tried, but failed to regain control of the property

The property is located in a residential zoning district (R7-2) and is subject to a deed restriction limiting it to community facility use. Singer applied to Buildings to construct a student dormitory, a permitted community facility use, but Buildings denied his application on March 21, 2005 based on Singer’s failure to submit enough information to establish “an institutional nexus;” a showing that required an educational institution to have some control over the property evidenced by a deed or lease. Buildings required an institutional nexus to distinguish the intended student dormitory use, which is entitled to a floor area bonus up to a 6.5 FAR, from other types of housing that are restricted to an FAR of 3.44.

The property is located in a residential zoning district (R7-2) and is subject to a deed restriction limiting it to community facility use. Singer applied to Buildings to construct a student dormitory, a permitted community facility use, but Buildings denied his application on March 21, 2005 based on Singer’s failure to submit enough information to establish “an institutional nexus;” a showing that required an educational institution to have some control over the property evidenced by a deed or lease. Buildings required an institutional nexus to distinguish the intended student dormitory use, which is entitled to a floor area bonus up to a 6.5 FAR, from other types of housing that are restricted to an FAR of 3.44.

At the August 16, 2005 BSA hearing, Buildings’ Deputy General Counsel Felicia R. Miller testified that Buildings could not issue a permit based on Singer’s claim that, following construction and before the certificate of occupancy, some qualified institution would emerge. Singer’s attorney, Jeffrey E. Glen, argued that a “college or school student dormitory,” as defined in the Zoning Resolution, does not require proof of institutional control and conditions on the management and rental of the dorm could be set later in the C of O. Glen further testified that Singer planned to run the proposed dormitory through a not-for-profit, which would lease space in the building to a variety of schools as needed.

Commissioner Joel A. Miele expressed his fear that the City could be signing off on a building that could turn into a “white elephant” if no schools were interested in leasing it. Glen replied that it was not Buildings’ role to hypothesize on whether a building built as of right would fail economically.

Several witnesses testified in opposition of the proposed dormitory, including Council Member Margarita Lopez, Assembly Member Deborah J. Glick and Congresswoman Nydia Velazquez; members of Community Board 3, the East Village Community Coalition, and the adjacent condo building Christodora House.

BSA rejected Singer’s arguments and upheld Buildings’ denial of the permit application, finding that the requirement of institutional control prior to issuance of a permit was necessary in light of the community facility use floor area bonus. Without some proof of an affiliation, a developer would receive a windfall. BSA also ruled that Buildings’ prepermit requirements were a reasonable exercise of its authority and were consistent with the language of the Zoning Resolution.

Since the filing of Singer’s appeal, Buildings enacted a rule clarifying the requirements to establish student dormitory use. The rule, which became effective June 15, 2005, requires proof of an institutional nexus.

BSA: 609 E. 9th Street (95-05-A) (October 18, 2005) (Jeffrey E. Glen, for Gregg Singer; Felicia R. Miller, for Buildings; Howard Zipser, for Christo dora House) . CITYADMIN

CITYLAND Comment: On October 18, 2005, the Landmarks Preservation Commission calendared P.S. 64 for a designation hearing. Singer, however, had already obtained permits to demolish certain parts of the building’s facade and can act on those permits even if P.S. 64 is landmarked.