200 Amsterdam Avenue Rendering Image Credit: SJP Properties

Advocates applaud decision while developers find decision deeply flawed. On February 15, 2020, the Committee for Environmentally Sound Development and the Municipal Art Society of New York,  won an Article 78 case regarding the construction of a 668 foot, 52-story condominium building located at 200 Amsterdam Avenue on the Upper West Side of Manhattan. New York County Supreme Court Justice W. Franc Perry’s ruling requires the Department of Buildings to revoke the building permit and compel the developers, SJP Properties and Mitsui Fudosan America, to remove the floors that exceed what is permitted under the Zoning Resolution.

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Park West Village superblock on the Upper West Side of Manhattan. (808 Columbus Ave, center). Image Credit: Google Maps.

Appellate Division finds that Buildings improperly issued construction permit for nursing home after misinterpreting the zoning resolution. Park West Village is a complex located on a superblock bounded by West 100^th Street to the north, West 97^th Street to the south, Columbus Avenue to the east, and Amsterdam Avenue to the west on the Upper West Side of Manhattan. The complex was built in the 1950s and 1960s as part of a federally subsidized middle-income urban renewal project, and includes residential buildings, a parking lot, a school, a church, a public library, a health center, and commercial buildings. Three original 16-story residential buildings remain on the eastern portion of the superblock at 784, 788, and 792 Columbus Avenue. The Park West Village buildings all exist on the same zoning lot. (more…)

Court rejected neighbors’ article 78 challenge to nine-story mixed-use building adjacent to landmarked synagogue. Congregation Shearith Israel applied to BSA for a variance to build a nine-story mixed-used building adjacent to its landmarked synagogue at the corner of West 70th Street and Central Park West in the Upper West Side-Central Park West Historic District. In addition to the synagogue, Shearith Israel owns a four-story parsonage house to the south of the synagogue along Central Park West and a four-story community house to the west of the synagogue along West 70th Street. Shearith Israel planned to demolish the community house to build the project. The proposed building’s first four floors would be occupied by community facility uses, including adult education classrooms, a Jewish day school, and a synagogue reception and banquet area. The top five floors would be developed into five market-rate condominiums.

The majority of Shearith Israel’s zoning lot is zoned R10A, but a portion of the lot along West 70th Street is zoned R8B. Shearith Israel needed the variance because the 105-foot building would violate, among other things, the zoning resolution’s maximum building height and setback regulations. Prior to applying to BSA, Shearith Israel obtained approval from Landmarks to demolish the community house and build the proposed mixed-use development.  (more…)

Sanitation proposed to reopen marine waste transfer station near Asphalt Green and Bobby Wagner Walk. After the Fresh Kills landfill on Staten Island closed in 2001, the Department of Sanitation contracted with privately-owned transfer stations, landfills, and waste-to-energy facilities to dispose of residential waste. Sanitation now delivers a large percentage of waste to transfer stations within the City, where tractor- trailers pick up the waste and drive it to landfills in other states.

In 2004, Mayor Bloomberg announced a new 20-year solid waste management plan. The City’s marine waste transfer stations would containerize solid waste onsite, and private companies would transport it by barge or rail, thereby reducing truck traffic and long-term costs. The marine waste transfer station at East 91st Street, bounded by the East River to the north and east, Carl Schurz Park to the south, and FDR Drive to the west, would be redeveloped to containerize waste generated in Manhattan. Sanitation trucks would access the transfer station using an elevated ramp that crossed over Asphalt Green, a sports and recreational complex located between York Avenue and FDR Drive. (more…)

345 West 70th Street in Manhattan. Image Credit: CityLaw

Buildings charged that owner unlawfully converted basement into additional rental apartment. In 2013 the Department of Buildings charged the owner of 345 W 70th Street, a multiple dwelling, with creating an illegal apartment in the basement. At the administrative hearing, Buildings submitted three I-cards for the building from 1916, 1938 and 1945. Before 1938, the Department of Housing Preservation and Development used I-cards to record the occupancy and arrangement of the buildings HPD had inspected. Certificates of occupancy were not required until 1938. The 1916 and 1938 I-cards both showed that the building had a basement apartment. The 1945 I-card, however, did not show a dwelling unit in the basement. Buildings argued that the 1945 I-card, as the most recent documentation, established the legal occupancy of the premises. The owner defended that the 1945 inspector may have missed the apartment.

The administrative law judge found the apartment was illegal and imposed a $1,200 civil penalty. The Environmental Control Board sustained the decision. The owner filed an article 78 petition.

The Second Department annulled the determination and fine, ruling that the decision was not supported by substantial evidence and was based on an error of law. The 1916 and 1938 I-cards indicated that the basement was in use as a dwelling, thereby establishing the apartment’s legal use prior to the establishment of certificates of occupancy. Buildings failed to present evidence of a subsequent change in the basement’s legal use. Even if the basement were not in use at the time, the 1945 I-card was insufficient to establish a change in the apartment’s legal use.

West 70th Tenants Corp. v. ECB2016 NY Slip Op 07099 (1st Dep’t Oct. 27, 2016) (Attorneys: Daniel Richland, for owner; Zachary W. Carter, Jeremy Shweder, for ECB).

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Ansonia condo owner placed illuminated “Peace” sign in 17th floor window. In 2010 Brigitte Vosse placed an illuminated “Peace” sign in the window of her seventeenth-floor condo in The Ansonia at 2109 Broadway in the Upper West Side of Manhattan. The Department of Buildings fined her $800 for violating the Zoning Resolution which prohibits illuminated signs in her neighborhood at heights above forty feet. Vosse appealed, arguing that the City had placed an unlawful content-based restriction on her speech, citing an exemption in the Zoning Resolution for flags, banners, or pennants of a civic, philanthropic, educational, or religious nature. Vosse also argued that even if content-neutral, the regulation was an unreasonable “time, place, and manner” restriction on her speech.

On November 18, 2015, District Judge Jed Rakoff ruled for the City and dismissed Vosse’s complaint. The Zoning Resolution did not prohibit all signs forty feet or more above curb level, but allowed non-illuminated signs twelve square feet in size or less. The sign limitation was narrowly tailored to achieve the City’s interest and allowed for adequate alternatives to communicate the same message. Had Vosse’s sign been non-illuminated, the judge held, she could have displayed it in the same manner and not been in violation of the Resolution.

On October 14, 2016, the Second Circuit affirmed Judge Rakoff’s decision dismissing Vosse’s case. The Court ruled that “maintaining an aesthetically pleasing cityscape and preserving neighborhood character” were legitimate government objectives. The Court found that Vosse failed to show how the regulations were not narrowly tailored—noting that narrowly tailored does not mean the least restrictive or least intrusive. Further, the Court ruled that there were ample alternative channels for communication. Vosse could legally display the same “Peace” sign—just not illuminated.

An earlier Second Circuit case had also affirmed the dismissal of Vosse’s constitutional claim of content-based discrimination. See CityLaw’s coverage of that decision in the November/December 2015 edition.

Vosse v. NYC, 2016 WL 6037372 (2nd Cir. Oct. 4, 2016) (Attorneys: Daniel Richland, for owner; Elizabeth S. Natrella, Assistant Corporation Counsel (Richard Dearing, Pamela Seider Dolgow, Of Counsel, on the brief) for Zachary W. Carter, Jeremy Shweder, for ECB).

By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).