Extell Development won a major ruling against Landmark West last week, when the NYC Board of Standards and Appeals ended deadlocked in a 2-2 tie vote over the fate of a potential high rise going up at 50 West 66th Street, between Columbus Avenue and Central Park West. Landmark West was denied its appeal without a majority decision at the BSA — where a tie vote is awarded to the developer. There was no opportunity for community input during the proceedings. For now, the ruling gives Extell the green light to move forward with its 39-story (775-foot) residential building. Once raised, the structure would be the tallest in Manhattan north of Central Park South.
We reached out to Landmark West to give us the full breakdown of what this all means for the Upper West Side, and if any further action can be taken. We also inquired about Extell Development acquiring the remaining ABC Campus back in February, which sits at Columbus Avenue between West 66th and 67th streets. These parcels include 149-155 Columbus Avenue (7 Lincoln Square), where “Live With Kelly and Ryan” is filmed, and 147 Columbus Ave, which hosts ABC News. The Barbara Walters Building and ABC Inc. Headquarters at 47 West 66th St. are also included.
With lots of potential construction on the horizon, if nothing changes, could the Upper West Side become home to Billionaire’s Row 2.0?
Bobby Panza: Would you please help bring everyone up to speed on the 2-2 tie last week and where that leaves us with 50 West 66th Street?
Sean Khorsandi, Executive Director of Landmark West: We received the latest response last week from the courts denying the Supreme Court appeal, which was frustrating for many reasons. The main underlying premise being that we’ve never really gotten to argue the points about the developer’s abuse of mechanical space deductions that fell on deaf ears at the Board of Standards and Appeals (BSA). And when you’re at the BSA making your arguments, there’s a bit of a shrug. “Well, if you really care, you’ll escalate this [to an Article 78 appeal].” And it’s a very disingenuous thing to do, right?
How many people in the general public are paying attention to land-use issues, and of those, how many are paying attention and care to react or do something? The Upper West Side is unique. We have a highly educated, engaged and motivated group of neighbors.
This is a case where the community has been vigilant. They’ve paid attention. We followed all the zoning filings religiously, we met every deadline of going to the Department of Buildings for a challenge, going to the BSA for an appeal, getting the experts involved, and following the process to wind up with this anomaly of a 2-2 tie. And their point is, well, if you want to argue it further, you escalate it. And we did, to an Article 78, and then the Supreme Court appeals, but we still didn’t get to argue the content at those levels.
What we only got to do was have the judge say, “Well, the BSA gave you a 2-2 tie, and in a 2-2 tie, the tie goes to a developer because, for your appeal to be granted, you need to have a majority and you have 50%.” And that’s where the frustration lies. Because we’re currently in a situation where, the BSA, which is largely a mayoral-appointed agency, has the final say, which makes the courts and the appeal process moot.
Because, if the courts are just going to say, “Well, we defer to the city who has the experts,” but the experts were not able to come to a definitive answer, we just got a default. There really shouldn’t be an Article 78 process or these other appeals processes in place, because they’re meaningless if it all just goes back to the fact that we’re not going to hear an argument and it falls on a 2-2 tie at a lower level in a quasi-judicial body of the BSA.
So, the news of the moment is, everybody presumes everything was over on the last appeal, we weren’t going to do anything more. And we got several calls in the wake of the decision in our posting of the news. And everybody was saying, “What else can you do? Can you do anything more?” And, in all honesty, there’s one more thing we can do and that is to file a motion for leave. It’s a very big long shot, but at the same point, if everybody’s going to rest easy saying we did everything we possibly could, that’s something we would need to do in order to say that with a clear conscience.
Bobby Panza: What is a motion for leave?
Mikhail Y. Sheynker, Esq.: The court, for reasons that I really don’t understand; they basically decided both the lower court and the appellate court use what’s called “deference” to the Board of Standards and Appeals and said, “We will defer to the determination of the Board of Standards and Appeals.” We’re not going to intervene and review the corresponding arguments that led to the deadlocked decision. If you take a look at the appellate court’s decision, it’s a page and a half.
They [the panel of five judges] didn’t even review the substance of the arguments that caused the BSA to split [the vote]. The BSA itself was not able to reach a determination on how to read the language of the Zoning Resolution that concerns the floor area deduction for use of mechanical equipment. Frankly, it is not clear what it is that the Appellate Division is deferring to. The courts have basically said whatever happens at the BSA cannot be disturbed on review in court. Such a hands-off approach is nothing short of an abdication by the courts of their constitutional duty to be the final arbiter of all legal questions.
Before this case, there hasn’t been any other judicial case, court case, that involved the review of a tie-vote at BSA [New York City BSA]. And so, in my view, it’s a case of first impression and I do want to file a motion with the Court of Appeals, which is the highest state appellate court, for permission to appeal to review the [intermediate] Appellate Division’s denial of Landmark West’s appeal.
We will at the same time make a “motion to reargue” in the Appellate Division as well. The appeal to the highest court, the Court of Appeals, is discretionary. So that court may agree to accept the appeal, or they may not.
You know, the Court of Appeals is very selective in terms of the cases that it decides to review. But there have been many cases that it did take on and reverse.
And I feel there may be a chance that we’re looking at the situation, looking at a case of first impression, that was not previously reviewed by the highest court. The Court of Appeals may decide to opine on the matter. And hopefully it will, and maybe we will undo the Appellate Division’s denial of our appeal.
Bobby Panza: Thank you for the breakdown. Do you have a timetable for these next steps?
Mikhail Y. Sheynker, Esq.: I think within the next 30 days, make the motion to reargue and the motion for permission to appeal to the Court of Appeals.
BP: Is there anything that the community can do while this motion process is taking place?
Sean Khorsandi: To be honest, the lawyer is pursuing this because he’s knee-deep in this already. The community shouldn’t need to do anything. That’s at the root of the problem here. The community has already paid their taxes, which pays for the Department of Buildings to interpret the zoning resolution which they also paid for because they fund city planning. And they paid for the Board of Standards and Appeals and all of those salaries — that whole agency. And that’s what’s unfortunate: that the community is paying and paying and paying for these agencies which are supposed to be concerned with the safety of the City but then to fight for their own rights, the neighbors again have to pay out of pocket to hire lawyers. So, it’s a sad case, but it’s the reality of what we’re seeing time and again.
But, we did see that, in this instance, there was some fruit borne of it. The developer in this case had followed zoning to the point where he had to have 60% of his floor area below 150 feet. And they did that. But the remainder of the floor area, there was really no defined limit on it.
So, essentially, that 40% of the building starts again after a gap, once it clears the roof of the tallest neighbor, which is 10 West 66th Street. And that was permitted, because, at the time, there was no limit to the vertical rise of mechanical heights. Few districts have floor-to-ceiling height limits. And that means you could have a small, legal living space or you could have a palatial ballroom if you choose to build it.
Zoning didn’t really care in this instance. But what we’ve done and managed to do with city planning, in response to buildings such as this, was limit the mechanical height. So, mechanical height spaces are now restricted to 25 feet (before they count against floor area ratio), which is still very generous, essentially two-and-a-half stories. And those can repeat every 75 feet.
But what the community can do right now, I think, is twofold. One is, you need to be able to look in your own neighborhood. And this is greater than the Upper West Side, because we’re standing on the benefits of other people’s prior challenges. One thing that West 66th Street benefited from at the BSA was a prior case called Sky House, I believe it was on East 33rd Street. And that case challenged some of these mechanical spaces, but they didn’t have an engineer on record and they lost. In this case, we were able to get a licensed engineer on record and we tied. So, hopefully, collectively, we’re moving the ball forward down the field toward rational zoning.
Because none of this is anti-development. This building is two lots from Central Park. Of course, a building should be built there. We just want a building that follows the zoning intent. We’re not anti-development in the least.
So, the other thing they can do besides paying attention is to take action. The immediate neighbors on the Upper West Side must take the threat of what’s going to happen at the Walt Disney Corporation’s ABC Campus seriously. The fight on 66th Street is already informing that. We now know that the same developer of 66th Street has purchased the ABC Campus and he could have done something similar there. But, even more, with even fewer restrictions, because that building, that block does not lie within the Lincoln Square special zoning district. However, we also know that we have the benefit now of having regulations and new laws on the books; namely, mechanical height limits, so it’s less lucrative to keep building mechanical floor after mechanical floor.
In the meantime, it’s been very clear that the city has said mechanical deductions are meant to be the minimum. This is not news, but further clarification of law. And that’s one of the key points we wanted to get to argue on appeal that we never got to. The BSA lost its appetite for talking about lateral mechanical spaces when they voted, and that’s what we’re hoping to be able to challenge, because it’s a nominal amount of floor area that’s used for mechanical equipment and access points to it. We’ve proven that, typically, much of this equipment can be hung from a ceiling, such as plumbing runs and mechanical ductwork.
However, the developer in this case took entire floors of his tower as deductions. So much that they account for over 37% of the building’s height. And there’s more and more case law clarifying the deduction is intended as the minimum. So, when ABC does move downtown and those 2.6 acres are redeveloped, the developer will know that the entire community is watching, but we also need to be vigilant about all these mechanical spaces and other loopholes.
So many of the rules that were written were written so you can challenge a project within a certain amount of time. And a lot of those were too limiting. We had a case where a different ZD-1 for a different building was filed. This had a different composition, and was just the northern portion of the site, before Jewish Guild for the Blind (250 West 64th) was acquired. And the site quickly expanded. In the meantime, they were clearing the buildings, preparing foundations, digging for things and, by the time their new ZD-1 was filed, much work was underway. For the community to challenge something successfully, it must be challenged before the developer completes their foundations, which makes them vested. The sequence of filings left little to challenge early on.
So, there’s an inherent issue with the challenge process for the community. As soon as the developer completes their foundations, you deal with it. But the process also allows filings of different buildings in the interim that may throw the watchful community off. So, it doesn’t matter how timely you are or how many facts you have behind you, you really have to have a war chest to fight this at every level to move the laws forward.
Bobby Panza: Because we’re probably, if this is approved to move forward, we’re going to be seeing a lot of construction, a lot of scaffolding, a lot of trucks, a lot of noise. Sean, is the plan to completely demolish the ABC buildings and build something new, or are they going to build something on top of it?
Sean Khorsandi: So, the ABC site is a composition of several buildings. I believe two of them are in the historic district: the former Durland Riding Academy and 30 West 67th St. But 47 West 66 St., also known as the Barbara Walters Building, the ABC headquarters building, the WABC-TV building, and 7 Lincoln Square, all have zero landmarks protections.
All those buildings were designed by the firm Kohn, Pedersen, Fox (KPF). And it’s our expectation that, in time, all of those will be demolished. Partly because of the way the zoning lies where the bulk can sit. And even conversion of the office tower is unlikely because the floor plates don’t make sense for a residential adaptive reuse.
Bobby Panza: Is there anything else that we’re leaving out that we should talk about right now?
Sean Khorsandi: Well, you were asking one thing about what the community could do now and I think what everybody really needs to do is double down and focus their attention on the American Broadcasting Company site and our upcoming ULURP process, the Uniform Land Use Review Procedure application. Because, if we can get that site, as has been underway for months now, incorporated into the Lincoln Square Special District, it gives us another layer of protection.
And it doesn’t take a square inch of floor area away from the developer, it just better informs the massing of how those buildings can be realized on the site. And it’s a key thing because, as we know, lawyers are expensive. We’re trying to work with the system and be smarter about it and be proactive; we don’t want to be on the defensive all the time.
The reality is, in a development of this scale, which the Upper West Side has not seen since the midcentury urban renewal era; it really should go through a public process. The community board should be involved, the community should be involved. And, unfortunately, as our planning situation has said, this would all be realized as of right development unless they go for something beyond the underlying zoning if they are looking to move bulk in certain ways. So, there’s a path of least resistance for a developer and, unfortunately, that cuts the community out and, hopefully, there’s a way for the community to stay involved and be part of the decision-making for their own neighborhood.
We’ve reached out to Extell Development for comment and will update this article if and when we hear back from them. Learn more about Landmark West’s initiatives at 50 West 66th Street and the ABC Campus here.