A recent ruling on 200 Amsterdam Ave was made public on Thursday, and included a statement from Justice W. Franc Perry that the developers “must bear the responsibility for any harsh results arising from the invalidation of the permit.”
The ruling noted that the previous decision by the Board of Standards and Appeals, which sided with the developers, had relied on the “Minkin Memo,” which states that “a single zoning lot… may consist of one or more tax lots or parts of tax lots.” This was interpreted to mean that the developers assembled the lot they built on out of more than one tax lot. This has been a loophole used by developers since 1978. When the BSA granted the permit they argued that there was no hard law in place against this practice and so moved forward.
In his ruling the judge wrote that the “DOB properly exercised its authority by identifying an erroneous interpretation of the zoning resolution and by publishing a proposed amendment to correct the error… [The] BSA, however, balked in its duty.”
The developers were shocked that this new position would have a retroactive effect.
The two developers, SJP Properties and Mitsui Fudosan America, have vowed to appeal the ruling. In a statement to Architect’s Newspaper, they wrote:
“This ruling is a shocking loss for New York City and its residents. It defies more than 40 years of precedent in the city’s zoning laws. It also ignores the thoughtful decision of the DOB to grant the permit which was upheld by the BSA following exhaustive document review and testimony over a two-year period. Both of those decisions recognized that retroactively applying new interpretations of the city’s zoning to previously approved projects undermines the stability of the regulatory environment needed to support the investment that is critical to New York City’s economy, tax base, housing stock and services. We will appeal this decision vigorously in court and are confident that we, and the City, will prevail on the merits.”
The Department of Buildings, who issued the permit to the developers, have not commented on whether or not they will join the appeal. Now that the ruling has been finalized, their decision should be forthcoming.
In the meantime, construction on the building has moved forward. Lawyers for the opponents, and Manhattan Borough President Gale Brewer, stated they are working to halt any further work, and are asking the DOB to step in and issue a stop-work order.
According to legal expert Richard Epstein,
“It should be evident that if affirmed on appeal, Judge Perry’s order with respect to the Amsterdam building will create chaos. It is no simple matter to lop off the top of a building while trying to leave everything else intact. At a minimum, count on huge expense, noise, confusion and congestion, danger of serious accidents, contractual spats with contractors and pre-completion unit purchasers, and a fresh round of zoning and traffic disputes. Architects will have to reconfigure every internal system – heat, air conditioning, plumbing and more. The developer, therefore, is back at square one. If some penalty to the developer is needed, a hefty fine is surely preferable to this administrative and logistical nightmare.”
Epstein argues that the “legal mess” of this ruling goes beyond just this case. Making a developer take down work which was completed after permits were obtained begs the question of what “legally issued permits” will look like in the future. He argues that retroactive illegality is a dangerous principle to follow.
Those who are happy with the ruling believe that it was clear that the legal battle was not over and so the developers should have waited to continue work.
“We certainly hoped they would stop,” said Elizabeth Goldstein, president of the Municipal Art Society of New York. “It’s been very clear right from the beginning that they intended to appeal so it’s not a surprise that they are eking out as much construction as they can in the meantime.”