Trump SoHo defeats new permit challenge

Community group argued developer improperly deducted elevator shafts on mechanical floor from floor area calculations. In May 2007, Buildings issued a building permit to the BayRock/Sapir Organization LLC to build a 42-story condominium hotel, known as Trump SoHo, at 246 Spring Street in Manhattan. The lot’s M1-6 zoning prohibited residential development. Therefore, Buildings’ approval required that the developer file a restrictive declaration prohibiting anyone from living in any of the building’s units for more than 29 consecutive days in any 36-day period or for a total of more than 120 days in a calendar year. Later that year, the SoHo Alliance community group unsuccessfully appealed the issuance of the permit, claiming that the building would violate the zoning resolution’s regulations for transient hotels. 5 CityLand 74 (June 15, 2008).

In August 2008, Buildings approved the developer’s plan to add a 43rd and 44th floor to the building. The Alliance challenged Buildings’ issuance of the permit, arguing that the project exceeded the maximum floor-area regulations. Buildings refused to revoke the permit, and the Alliance appealed to BSA.

At BSA, the Alliance argued that the developers improperly deducted portions of the building from floor area calculations, including the elevator shafts and stairwells on a floor that was used entirely as mechanical space. The zoning resolution explicitly includes elevator shafts and stairwells in its definition of floor area, but it excludes floor space used for mechanical equipment. Following a longstanding practice, Buildings permits the exemption of mechanical-floor elevator shafts and stairwells from floor area calculations. The Alliance argued that Buildings did not have the authority to narrow the zoning resolution’s definition, and that an informal past practice should not legitimize an incorrect interpretation of the zoning resolution.

BSA denied the appeal, finding that the project did not exceed the floor area limitations and that Buildings was within its authority to permit the developer to exclude the mechanical-floor elevator shafts and stairwells from its floor area calculation. BSA agreed with Buildings and the developer’s assertion that it would be unreasonable to exclude all the mechanical space on a floor but include the voids left by the stairs and elevators. That Buildings had not memorialized its policy was not a compelling reason to nullify its rational interpretation of the zoning resolution.

BSA: 246 Spring St., Manhattan (315- 08-A) (Oct. 5, 2010) (Stuart A. Klein for SoHo Alliance).


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