Pending Further Order of the Court, No Construction at 428-432 East 58th St. Will Be Permitted Above 80 Feet Until At Least February 26, 2019

By Team ERFA,

New York, December 18, 2018 – The East River Fifties Alliance (ERFA), represented by co-counsels Michael Hiller and New York City Council Member Ben Kallos, have negotiated a Court-Ordered Stipulation that requires the developer trying to build an 800-foot-tall mega-tower on East 58th St. to notify the Court when the building reaches a height of 80 feet above grade level, at which time, the Court will schedule a hearing to determine whether any further construction will be permitted.

In its lawsuit, ERFA has argued, among other things, that the City’s Board of Standards and Appeals (BSA) illegally granted the developer a special exception to current zoning in order to build a supertall tower that would be filled with luxury apartments and would not provide for any affordable housing. Under the current zoning, which the developer seeks to avoid, the tower would have to be several hundred feet shorter and would be conducive to affordable housing.

The Court-Ordered Stipulation was negotiated while attorneys for ERFA, the developer and the BSA appeared in front of State Supreme Court Judge Debra A. James on December 11 for a hearing on the community group’s Article 78 proceeding against the BSA. At that time, the Developer’s lawyers represented to the Court that the 85-foot mark would constitute the point of no return for the proposed tower; according to the Developer’s lawyers, once the proposed tower were to exceed that height, it could not be built in conformity with current zoning.

During the December 11th hearing, the Court seemed to be receptive to ERFA’s argument that New York does not permit “grandfathering” exceptions to current zoning where the developer has engaged in construction activities that violate the law. ERFA has argued that the developer violated Department of Transportation and Department of Buildings permit requirements, creating hazards to the community, all in an effort to rush to complete the construction work.

Alan Kersh, ERFA President, said, “We know that the developer did not comply with all aspects of the law and, that the BSA did not act properly in granting an exception to proceed with construction of a supertall. Today’s stipulation is a significant milestone for a citizens’ group fighting overdevelopment in New York City.”

Mr. Hiller was critical of the City’s priorities, commenting: “I still cannot understand why the City would continue its efforts to twist the law into a pretzel in order to approve yet another luxury mega-tower at the expense of affordable housing.”

He added, “We are fortunate that the Judge in our case took the time during the hearing to focus on the issues and ask probing questions of the lawyers for the City and the developer in the court’s search for the truth. While there are certainly no guarantees as to the outcome, we remain optimistic that, owing to the strength of our case, the rule of law will prevail.”

“Developers can’t keep getting away with breaking the law. Public safety was endangered by after-hours variances and street closure permits that were issued under false pretenses and then not even complied with by the developer. We are in court to finally stop developers from perverting the law to harm communities when those laws were originally intended to protect residents,” said Council Member Ben Kallos, Pro Bono Co-Counsel for ERFA and a petitioner. “Thank you Michael Hiller for a strong argument for applying the law as written. Judge Debra A. James is a credit to our judiciary with her ability to handle diverse cases, digging into a complex subject matter, and asking tough questions that really got to the heart of the matter.”

If constructed, the proposed mega-tower would dwarf adjacent structures, which mostly consist of 5-6 story townhouses and small apartment buildings to the south. Neighborhood residents and every public official to have commented on the project have opposed it as wildly out-of-scale and part of a larger, unfortunate trend in the City to favor the interests of well-connected real-estate developers over the needs of the community.

Public officials who oppose the project include City Councilmembers Ben Kallos and Keith Powers, Manhattan Borough President Gale Brewer, State Senator Liz Krueger, State Assemblymember Dan Quart and Member of the House of Representatives, Carolyn Maloney.

The next court appearance has been scheduled for February 26, 2019.

December Decision Update

By Team ERFA,

As revealed to all who attended the Town Hall on Thursday, December 13, 2018, ERFA continues to blaze a trail and maintain protections against megatowers and supertalls for our beloved Sutton Place neighborhood.

As many people know, ERFA appeared in front of Judge Debra A. James in New York State Supreme Court on Tuesday, the 11th of December.

The details of our Article 78 case were strongly represented by attorney Michael Hiller and Councilmember Ben Kallos, demonstrating that no developer should be granted a zoning “grandfathering” exception when it has not abided by all aspects of the law. In our case, we know that all aspects of the law were not followed by the developer and, that the Board of Standards & Appeals did not act properly in granting them an exception to proceed. If you wish to read the transcript of our hearing, we will be posting it on ERFA.NYC as soon as it is available.

Finally, in view of the fact that this case is being reviewed by New York State Supreme Court and not a City government agency, we are optimistic that both the strength of our case and, the rule of law shall prevail and therefore, this is our way of wishing you all a very happy holiday season.

WHAT TO EXPECT:  “Build it Right” 
The newly adopted zoning measure (enacted in November 2017) calls for Tower on a Base which is a contextual, neighborhood zoning specification and allows for developers to build, but not in a configuration that exceeds Tower on a Base requirements.

Under those requirements, the lowest 85 feet of a building would not necessarily be shaped differently from the lowest 85 feet of the megatower the developer is trying to construct. Therefore, the restriction that was put in place last October limiting construction to a height of 16 feet has been loosened to allow for construction up to a height of 80 feet.


At that point — when construction is near the 85 foot height at which it would become inconsistent with Tower on a Base zoning– if the judge has not already reached her decision on our Article 78 appeal — she will decide whether the developer should be allowed to do any additional construction while the case is still pending.

Note: The building height is to be calculated as a measurement from the ground up. You can expect continued activity on the site, but it should not exceed the 80 foot height which would trigger review by the judge.

In the true spirit of “if you see something, say something,” please continue to notify 311 of any obvious traffic, construction, safety or unlawful activity that you witness. We are greatly appreciative of the community’s efforts toward those protections.

Have a beautiful, happy, healthy and safe holiday season.
We expect 2019 will be a successful year for The East River Fifties

The ERFA Leadership Committee

P.S. We continue to rely on your generosity, concern and commitment. Please consider making a donation on behalf of the neighborhood you know and love.

December Town Hall

By Team ERFA,

Come to this week’s Town Hall and and hear the status of ERFA’s work to protect the East River Fifties.


WHEN:            December 13, 2018

WHERE:          Morso Restaurant

420 East 59th Street

TIME:              8-9 a.m.

Come hear an update on what happens in court before Judge Debra A. James on December 11th, when she hears arguments on the Article 78 appeal — in which ERFA is petitioning the Court to reverse the Board of Standards & Appeals decision to “grandfather” the megatower.

You’ll remember from our last update that in a significant win for ERFA, Gamma Real Estate (the developer that is trying to build the 800-foot-tall megatower on East 58th Street) has been restricted, pending further order of the Court, from constructing a building unless it is accordance with the new zoning enacted by the City Council on November 30, 2017.
On the 11th, Judge James will also face the issue of whether to extend restrictions on the developer while the case proceeds.
Since several months may elapse before she issues a decision on the Article 78 appeal, it is important for us to extend the restrictions on construction during that time.

After hearing both sides on the 11th, Judge James will likely issue a final decision in approximately 12-16 weeks .

Stay with us. Come hear the update in person, keep your neighbors informed, and help ERFA address the costly nature of this undertaking by making a donation today.