ERFA’S QUEST CONTINUES — NO MEGATOWERS IN RESIDENTIAL NEIGHBORHOODS

Dear All,

The impressive participation at the July 12th Town Hall meeting showed our community’s unyielding commitment to TAKE ACTION to bring the 430 East 58th Street development site into compliance with the new zoning law that was enacted by the City Council last November. The developer should not be exempted from having to abide by the same law that now applies to everyone else in the neighborhood!

For those of you who could not attend, here’s an overall summary of the points that were made:

  • ERFA achieved a zoning change, enacted by the NYC City Council on November 30, 2017, to prevent the construction of megatowers in the East River Fifties.
  • The developer of the 430 East 58th Street site then applied to the Board of Standards & Appeals to be exempted from the new law and allowed to construct a megatower.
  • On June 26, 2018, the BSA granted the developer’s request for an exemption.
  • ERFA will commence a legal action known as an Article 78 proceeding in the Supreme Court of the State of New York seeking to reverse the BSA’s decision.
  • The community’s support is essential to achieving this goal. Please give to the cause, by following this link.

 At the Town Hall meeting on July 12th, we discussed the history of ERFA’s quest to save the East River Fifties and what the continuing fight will entail. Here are the answers to various questions that were covered:

Q. How did we get to the point where we are now?

A. In brief, the major events leading up to the present time are:

  • In 2015, when we became aware of a developer’s intention to construct a 1,000 ft. tall megatower at 430 East 58th Street, we realized that a 1960s-era zoning law posed a threat to our entire neighborhood. We began discussing possible solutions to the problem with the NYC Dept. of City Planning (“DCP”)
  • On January 21, 2016, after several months of discussion and analysis, ERFA submitted a proposal to DCP to re-zone the East River Fifties (the area from 51st Street to 59th Street, east of First Avenue) so as to prevent the construction of megatowers and provide for affordable housing.
  • Almost two years later, on November 15, 2017, after much additional discussion and negotiation with DCP — and our submission of hundreds of pages of supporting documents — the NYC Planning Commission (“CPC”) approved a zoning change applying tower-on-a-base (“TOB”) standards to new construction in the East River Fifties. (TOB standards serve as a “functional height limit” by imposing size and design requirements which, in effect, limit building heights.)
  • However — At the last minute before approving the zoning change, CPC inserted a “grandfathering” exception to allow construction of the megatower that had been planned by the developer of the 430 East 58th Street construction site — the same site that alerted us to the need for overall re-zoning in the first place. (See June 17, 2018, Daily News article, Law firm owed $300G by de Blasio lobbied mayor’s top aides, won big favor for high-rise developer””
  • The final step necessary to achieve the rezoning was a vote by the City Council. On November 30, 2017, the rezoning was enacted into law by a City Council vote of 45-0 (with one abstention). Importantly — In enacting the rezoning, the City Council specifically removed the grandfathering provision that had been inserted by CPC, thus making the developer subject to the new law.
  • In December 2017, the developer again sought to grandfather the 430 East 58th Street development site by applying to the Board of Standards & Appeals (“BSA”) for permission to do so. Under the NYC Zoning Resolution, the BSA may grant such permission if a developer made “substantial progress” on a building’s foundation prior to a zoning change and also met certain other requirements. The developer claimed that it had met those standards.
  • In hearings conducted by the BSA on April 10th and June 19th, 2018, ERFA presented a great deal of evidence and made numerous arguments why the BSA should NOT approve the developer’s application for grandfathering. As part of that presentation, ERFA provided compelling evidence that the Dept. of Buildings (“DOB”) and Dept. of Transportation (“DOT”) permits that had been issued to allow extensive after-hours (i.e., weekend) work on the foundation were invalid, and that therefore, the work performed pursuant to those permits – which included the pouring of 73% of the foundation’s concrete – should not be counted in the calculation of whether “substantial progress” had been made.
  • Despite the evidence we presented, the BSA voted on June 26, 2018 to approve the developer’s application. In other words, the BSA gave the developer a green light (in legal terminology, a “vested right”) to construct the above-ground portion of the building after completing the foundation. See June 26, 2018 Daily News article, Client of lobbyist law firm Mayor de Blasio owes big money to wins approval for tower from mayor-appointed board.”

 

Q. What is the next step?

A. Although the BSA voted in favor of the developer at its June 26th meeting, the matter is on hold – so to speak – until the BSA issues its written decision. Pending the written decision, the developer may not do any work at the site, nor may ERFA commence legal action to reverse the BSA decision. Based on the most recent information from the BSA, we expect the written decision will be issued at the end of July or beginning of August.

 

Q. ERFA has said it will go to court to challenge the BSA decision. How and when will that happen?

A. ERFA will file papers with the NY State Supreme Court to commence what is known as an Article 78 proceeding. The papers to start the proceeding (an “Article 78 petition”) can’t be filed until the BSA issues its written decision. Once the BSA’s decision is issued, the deadline for filing the Article 78 petition will be 30 days after that.

 

Q. What exactly is an Article 78 proceeding?

A. Article 78 is the portion of the New York State Civil Practice Law and Rules (CPLR) – the rules governing all civil actions in New York courts — that sets out the legal procedure for challenging determinations of administrative agencies or other governmental bodies. The person challenging a determination is called the “Petitioner” and the person defending the determination is called the “Respondent.”  In our case, ERFA will file an “Article 78 petition” to challenge the BSA’s decision to grandfather the 430 East 58th Street project. We will argue that in issuing that decision, the BSA failed to comply with the applicable law (the requirements of the Zoning Resolution), and we will ask the court to reverse the BSA decision.

 

Q. What is the timing for an Article 78 proceeding?

A. Article 78 proceedings can vary in length from a few months to several years, depending upon the subject matter and the arguments that are made by the parties. Based on currently available information, we anticipate that our Article 78 proceeding will last for one or two years.

 

Q. What is the name of the lawyer who will represent ERFA at the Article 78 proceeding?

A. Michael Hiller, Esq. represented ERFA at the BSA hearings and will also represent ERFA at the Article 78 proceeding.

 

Q. Can the developer continue constructing the building while the Article 78 proceeding is ongoing?

A. Once the BSA issues its written decision, the developer will have the legal right to renew its building permit with the DOB and continue construction. We don’t know whether or how soon the developer would actually take that step. If the developer does resume construction, we intend to immediately apply to the court for a Temporary Restraining Order and then a Preliminary Injunction to prohibit further construction until the Article 78 proceeding is completed.

 

Q. If ERFA is not granted a Preliminary Injunction and the developer continues construction, what will happen if ERFA ultimately wins the Article 78 proceeding?

A.The law provides that the developer would have to remove the newly-built structure if it does not comply with the zoning that was enacted by the City Council on November 30th.

 

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