Local residents claimed that all open space on a multiple building zoning lot must be accessible to all occupants of the zoning lot. 808 Columbus Avenue LLC obtained a permit from Buildings to construct a 29-story, mixed-use building within Park West Village on Manhattan’s Upper West Side. The new building would share a zoning lot with three 16-story residential buildings located on a superblock bounded by West 100th Street on the north, Columbus Avenue on the west, West 97th Street on the south, and Central Park West on the east. Local residents challenged the permit approval, but Buildings’ Manhattan Borough Commissioner upheld the permit. The residents appealed to BSA seeking to revoke the permit.

The residents claimed that open space requirements of the Zoning Resolution had been violated because some of the proposed building’s open space would not be accessible to residents living in the other three buildings within the zoning lot. The residents also claimed that the 56,000 sq. ft. Whole Foods supermarket slated for the first floor and cellar should have been classified as a variety or department store rather than a food store because of its proposed size, location, and delivery requirements. Variety stores could not exceed 10,000 sq. ft. and department stores were prohibited in the C1-5 district. Manhattan Borough President Scott Stringer argued that Buildings had recently classified a Costco store in Queens as a department store, and that, like Whole Foods, Costco primarily sold food and food-related items. The residents also asserted that an environmental review of the project’s potential impacts was required before Buildings could issue a permit.

BSA upheld the issuance of the permit, finding that the Zoning Resolution did not require all open space on the zoning lot to be shared by all of its occupants. BSA determined that the open space requirements were applicable to individual buildings and not the zoning lot; thus, a building could reserve open space for its own residents even though it shared a zoning lot with other buildings. BSA also ruled that the Whole Foods supermarket was a permitted use because Buildings had consistently characterized Whole Foods as a Use Group 6 food store and the Zoning Resolution did not allow Buildings to use size to disqualify supermarkets from Use Group 6. BSA also noted that there was insufficient evidence to determine that Whole Foods more closely resembled a variety or department store than a food store. Lastly, BSA concluded that an environmental review was not required since Buildings’ decision did not qualify as a “discretionary decision” under City and state environmental law.

BSA: 808 Columbus Ave. (149-08-A) (Feb. 3, 2009). CITYADMIN