Stuart Beckerman testifies before the Board of Standards and Appeals. Image credit: BSA

Board found the tunnel approach qualified as an “arterial highway” under the Zoning Resolution.  On July 21, 2015 the Board of Standards and Appeals voted to deny an appeal by 121 Varick St. Corp. of a previous Department of Buildings determination that their advertising sign was not established as a lawful non-conforming use.  The sign is a 75′ by 75′ illuminated advertising sign placed fifty feet above curb level on 121 Varick Street, Manhattan, facing onto the intersection of Varick and Dominick Streets.

On August 28, 2013 the Department of Buildings revoked a previously-granted permit for the sign.  In its final determination, Buildings stated the sign was within two hundred feet of multiple approaches to the Holland Tunnel, an arterial highway, and such placement was prohibited by Zoning Resolution §42-55.  On September 27, 2013 the applicant appealed the decision.

The Board held a public hearing on September 9, 2014 with continued hearings on January 27, 2015, April 14, 2015, and May 19, 2015.  In the hearing, counsel for the applicant Stuart Beckerman argued the Buildings revocation was made in error because there are no approaches to the Holland Tunnel.  Mr. Beckerman further argued that even if there were approaches to the Tunnel, the approaches do not qualify as a “designated arterial highway” under the Zoning Resolution, and even if the approaches do so qualify, the applicant’s sign is not within two hundred feet of the approaches.

Buildings argued the Holland Tunnel is explicitly named by the Zoning Resolution as an arterial highway subject to ZR §42-55 and under the City Planning Commission’s Master Plan, the location of the Tunnel approaches was left to Buildings’ determination.  Buildings had designated one approach as beginning at the intersections of Varick and Broome Streets, and the sign is within two hundred feet of that approach.

On July 21, 2015 the Board voted 4-0 to deny the appeal.  In its final decision, the Board agreed with Buildings that the sign was within two hundred feet of the Holland Tunnel, citing a letter dated April 23, 2013 where the applicant conceded the fact.  The Board agreed with Buildings’ long-standing interpretations as to what were the approaches to the Holland Tunnel, noting the applicant failed to refute those interpretations.  The Board applied a 360 degrees standard under which a sign is within view if it can be viewed from a specific point on an arterial highway in any direction and found the sign was within view of the tunnel approach.

BSA: 121 Varick Street (278-13-A) (Jul. 21, 2015) ( Isaac Szpilzinger, Esq., for 121 Varick St. Corp., owner).

By:  Michael Twomey (Michael is the CityLaw Fellow and a New York Law School graduate, Class of 2014).

Part of Park West Village. Image Credit: Google Maps

On December 17, 2020, by a 4-3 decision and over a strong dissent, the Court of Appeals reversed the decision of the Appellate Division in Peyton v. NYC Board of Standards and Appeals, 2020 N.Y. Slip Op. 07662.  The decision is an unseemly show of deference to the Board of Standards and Appeals, a body that is widely viewed as captive to the real estate industry, on a pure question of law as to which no deference is owed.  The City Council should follow the lead of the U.S. Congress, which, in the Dodd-Frank Act, legislated a less deferential standard of review for certain actions of an agency widely deemed captive to the industry it is supposed to regulate. (more…)

Eugene Travers. Image Credit: Eugene Travers/Kramer Levin

Governor Andrew Cuomo’s executive orders issued in response to the COVID-19 public health emergency halted non-essential construction throughout the City of New York. Many of the halted construction projects enjoyed land use approvals granted by City agencies, and the Governor’s orders did not toll the expiration dates of these approvals. (Update:) Subsequent to the construction shutdown, Mayor Bill de Blasio on April 29, 2020 issued an emergency executive order tolling the expiration dates of certain City land use approvals “for the duration of the [COVID-19] emergency.”  It remains to be seen if legislation will be adopted to provide a more permanent solution to address the time lost during the construction shutdown and the eventual remobilization period.  The New York State Senate passed a bill on May 27, 2020 that would allow the City to extend certain land use approvals issued before March 7, 2020 for up to 120 days beyond their stated expiration dates.*

Even with these measures, with limited exceptions, the approvals will expire after a period of time unless proactive measures are taken.  Developers and lenders should confirm the status of existing approvals, note their expiration dates (subject to any tolling), and apply for renewals as necessary.

This article describes the requirements to preserve the rights granted by some common land use approvals, and summarizes the expiration dates and renewal procedures for such approvals. (more…)

Director of DCP Marisa Lago holds review session as the sole Commissioner in physical attendance on March 16, 2020.  Other Commissioners attended the meeting remotely, in an attempt to keep the ULURP process moving before Mayor de Blasio’s Executive Order was signed. Image Credit: NYC CPC

The executive order freezes land use applications so public meetings do not need to occur. On March 16, 2020, Mayor Bill de Blasio signed Emergency Executive Order #100, which laid out several steps of the City’s response to the coronavirus outbreak. In the interest of limiting public gatherings to reduce the spread of the coronavirus, Emergency Executive Order #100 freezes land use applications that have a timed review or vote requirement. This includes applications within the Uniform Land Use Review Procedure (ULURP) as well as applications before the Landmarks Preservation Commission. The Emergency Executive Order also waived the City Charter’s requirement to hold at least two City Council stated meetings per month. As a result, Landmarks, community boards, Borough Presidents, the City Planning Commission and the City Council do not have to meet to take action on active land use applications.  (more…)

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.

(more…)