Trump SoHo wins another appeal. Image: Handel Architects.

Court finds that BSA’s decision to uphold DOB permits was supported by substantial evidence. The New York City Department of Buildings issued permits for a transient hotel at 246 Spring Street in Manhattan. Believing that the design amounted to an unpermitted residential building in an M1-6 zoning district, SoHo Alliance appealed DOB’s decision to BSA. BSA denied the appeal, 5 CityLand 74 (June 15, 2008), and SoHo Alliance filed an article 78 petition challenging BSA’s decision.

SoHo Alliance claimed that BSA had varied the terms of the Zoning Resolution so that the proposed development could be construed as a transient hotel. SoHo Alliance argued that, in order for a building to qualify as a transient hotel, the guestrooms would have to be rented on a daily basis; here, the hotel condominium offered private ownership and permitted a unit owner, or any other individual, to occupy a room for 29 days in any 36-day period and for 120 days in a calendar year. SoHo Alliance also claimed that, since the building was residential in character and within a manufacturing district, the desired separation of manufacturing uses from residential had been undermined. SoHo Alliance further claimed that the presence of owner-controlled closets in guestrooms was evidence of the building’s residential character, and that such closets were not among the enumerated accessory uses permitted for transient hotels.

Justice Kibbie F. Payne denied the petition, ruling that BSA did not vary the terms of the Zoning Resolution. Payne rejected SoHo Alliance’s claim that transient hotels’ guestrooms needed to be rented on a daily basis because the plain language of the Zoning Resolution allowed, but did not mandate, daily rental. The court further determined that the separation of manufacturing uses from residential had not been undermined because there was enough evidence for BSA to determine that the building was a transient hotel, especially since the building contained kitchenless guestrooms and lacked mailboxes and common garbage chutes. The court also found that owner-controlled closets could be considered an accessory use since the Zoning Resolution did not contain a finite list of permitted accessory uses for transient hotels and allowed case-by-case determinations. Finally, the court agreed with BSA that a permit cannot be revoked based on the possibility of illegal use in the future.

SoHo Alliance, Inc. v. City of New York, Index No. 108064/08 (N.Y.Cty.Sup.Ct. Dec. 19, 2008) (Payne, J.) (Attorneys: Stuart Klein, for Alliance; Michael A. Cardozo, Virginia Waters, Gabriel Taussig, for NYC).