Q. What is the East River 50s Alliance (ERFA)?
A.The East River 50s Alliance is a nonprofit 501(c)(4) corporation founded in 2015 by East River Fifties (the area between East 51st Street and East 59th Street, east of First Avenue) residents, co-operatives, and condominiums. The group’s aim is to prevent out of scale development within the abovementioned area. The threat of such inappropriate development became apparent when the Bauhouse Group publicized a plan to construct a 1,000-foot megatower on East 58th Street between First Avenue and Sutton Place. Residents of the community realized that such a grossly out-of-scale building and similar “pencil tower” buildings that might be proposed by other developers on “soft sites” would threaten the fabric of this residential neighborhood.
Q. What is a megatower?
A. A “megatower” or “supertower” is a building that is extremely tall in relation to the size of its footprint. Such buildings are also sometimes referred to as “pencil towers” or “needle towers” due to their shape and their extremely disproportionate height in comparison with surrounding buildings. A number of megatowers — 432 Park Avenue and 157 West 57th St. for example — can now be seen in the area just south of Central Park.
Q. Why did megatowers suddenly appear on the cityscape?
A. New engineering technologies have made the construction of such buildings possible, and they are very profitable for developers because very wealthy people are willing to pay tens of millions of dollars per apartment on the high floors.
Q. Why was the East River Fifties more vulnerable to construction of megatowers than other residential neighborhoods?
A. The East River Fifties had the highest-density zoning designation (R10) that the city allows for residential communities. That high-density zoning, coupled with developers’ ability to purchase development rights (a/k/a air rights) from numerous buildings on a block and aggregate them, without any limitation, to count toward allowable floor area for a single building on one small plot on that large block, allowed construction of megatowers that would not otherwise be possible. The East River Fifties’ unique vulnerability was due to a 1960s-era zoning law which had been updated in other communities, but not ours. Before the East River Fifties was rezoned, it was the only residential community in the entire city where R10 zoning had not been modified to protect side streets from the potential for such overdevelopment.
Q. Why does ERFA object to construction of megatowers in the East River Fifties?
A. Construction of any megatower in the midst of our quiet neighborhood of predominantly mid-rise buildings would distort the character and sense of place of this iconic and well-loved residential community and would discourage the community diversity we value. The potential problems, both during the construction phase and after completion, are especially pronounced if the building were to be erected on a narrow side street, such as the area on East 58th Street where three multi-family buildings were recently demolished by a developer seeking to construct a megatower in their place. ERFA proposed a zoning change to encourage the construction of housing on those lots and other nearby soft sites which would serve as residences for people who actually live and work in the city – real housing for real people — rather than as real estate holdings for absentee owners who would leave the apartments unoccupied most of the time (such as what has happened with megatowers elsewhere in the city). Although the proposed zoning change recently became law, the possibility that a megatower may be constructed at the 58th Street site still remains because the developer had begun construction of a foundation before the new zoning law was adopted and is now claiming that, notwithstanding the new zoning law, the degree of alleged progress made prior to its enactment entitles the developer to construct the full building. Our evidence confirms that the degree of work completed on the foundation prior to enactment of the new zoning law does not justify the construction of a megatower building.
Q. What has ERFA done to keep megatowers out of the neighborhood and keep the community livable?
A. ERFA commissioned outstanding lawyers, planners and land-use experts to prepare and submit a proposal to the NYC Department of City Planning to create new zoning regulations for the East River Fifties area. The proposal called for modifying the existing R10 zoning — which did not impose height limits on residential development — so as to apply tower-on-a-base (“TOB”) requirements throughout the East River Fifties. ERFA’s proposal was approved by the City Planning Commission and then enacted into law by the City Council on November 30, 2017. Under the previous zoning, TOB requirements applied only to avenues and wide streets, not narrow streets.
Q. How does the new zoning prevent megatowers?
A. The new zoning law applies tower-on-a-base (“TOB”) requirements throughout the East River Fifties. Although TOB rules do not dictate a specific height limit, they create what is known as a “functional height limit” by imposing a variety of rules that govern the sizes and shapes of buildings. TOB’s so-called “packing rules” that normally apply to the avenues and wide streets have been modified to make them suitable for narrow streets. Those modified rules provide, among other things, that at least 45% of the total floor area permitted on a zoning lot must be located in stories located either partially or entirely below a height of 150 feet. The height of buildings will also be controlled by TOB rules governing “tower coverage.” Further, TOB imposes rules and limitations on a developer’s ability to assemble air rights through the use of zoning lot mergers. ERFA’s planners estimate that the modified TOB rules will result in buildings that are no more than 31-35 stories tall.
Q. Does the new zoning allow commercial development?”
A.No. Like the previous R10 zoning, the new zoning rules allow only residential uses and community uses, like day care centers and medical offices, keeping the residential and non-commercial nature of the district intact.
Q. What is a 'soft site?'
A. Soft sites are lots that are vacant or built out at far below what existing zoning would allow, and therefore tend to be the most viable lots for redevelopment (according to NYU’s Furman Center).These sites may not have a specific development planned, but may reasonably be expected to be developed in the not too distant future.
Q. What does the City’s adoption of ERFA’s rezoning plan mean for the community?
A. The rezoning protects the East River 50s community from excessively tall buildings. No megatower can be constructed within the area extending roughly from 51st to 59th Street, east of 1st Avenue. Notwithstanding the foregoing, the developer is seeking to “grandfather” its building on East 58th St. under the old zoning based upon an arcane provision of the Zoning Resolution known as a “statutory vesting provision,” designed to protect developers who are unexpectedly sandbagged by a re-zoning after work has already begun. The record in this dispute confirms that the developer for this project acquired the property and began work only after learning of the planned re-zoning. Thus, the statutory vesting provision should never have been invoked by the developer. Furthermore, even if the statutory vesting provision were to apply (and it doesn’t), the developer doesn’t even meet its requirements. Accordingly, the Board of Standards and Appeals should have rejected the developer’s application.
Q. Doesn’t the City usually take the lead to rezone areas that no longer seem appropriately zoned?
A.Yes. In fact, during the Bloomberg administration, around 10% of the city was rezoned through the initiative of the Department of City Planning. But any individual, group, or developer can also propose a change in a zoning designation. ERFA did exactly that, and ERFA’s proposed rezoning of the East River Fifties became law when it was adopted by the City Council on November 30, 2017.
Q. What made ERFA’s rezoning proposal so special?
A. ERFA’s rezoning proposal was a landmark in community-based planning. It is one of the few instances where a nonprofit, community-based organization proposed, commissioned and financed such considerable legal, planning, environmental, zoning, urban design, and public awareness efforts for the purpose of advancing a rezoning proposal.
Q. How has ERFA built support for this cause?
A. ERFA’s goals have been endorsed by the owners of 45 buildings in the community (co-op boards, condo boards, and other building owners) and over 2,700 individuals residing in more than 550 buildings both within and outside of the proposed rezoning area. In addition, ERFA has gotten the endorsement of such important civic organizations as Sutton Area Community Inc., the Municipal Art Society of New York, Friends of the Upper East Side Historic Districts, Kips Bay Association, CIVITAS and LANDMARKWEST!. ERFA continues to build such support by running an active community awareness and public education program. ERFA’s website, erfa.nyc is an important source of information and updates.
Q. Did elected officials support ERFA’s rezoning effort?
A. Not only did elected officials support ERFA’s rezoning plan, four elected officials actually signed on to the plan – which was very unusual – and showed particularly robust support for the plan. Manhattan Borough President Gale A. Brewer, Council Member Ben Kallos, Council Member Dan Garodnick and State Senator Liz Krueger all signed on to the proposal. ERFA’s efforts were additionally endorsed by Congresswoman Carolyn Maloney and Assemblyman Dan Quart.
Q. Where can I learn more about the City’s Zoning Resolution and specific zoning sites?
A. The City’s Zoning and Land Use website, www.nyc.gov/zoning, is a great source of information and includes zoning and land use maps and other information for every part of the city.
Q. There have been reports that Gamma Real Estate has acquired the 58th Street site where the Bauhouse Group was planning to construct the 1,000 ft. megatower. Is there still reason to be concerned that a megatower might be built there?
A.Yes, absolutely! The threat is as great as ever. After acquiring the property, Gamma proceeded with efforts to develop it. Gamma demolished three existing buildings and began constructing a foundation for a megatower on the site. The BSA granted the developer’s application to grandfather its work under the old zoning by invoking a so-called statutory vesting provision described above. ERFA has filed an Article 78 petition with the NYS Supreme Court seeking to reverse the BSA decision.
Q. Was ERFA’s proposal to apply “tower-on-a-base zoning requirements to the East River Fifties the first rezoning proposal that ERFA submitted to the City?
A. No. The application to apply “tower-on-a-base” zoning requirements to the East River Fifties replaced an earlier application in which ERFA had sought a rezoning that would have set an absolute height limit of 260 feet for new construction and would have required developers to produce more affordable housing in exchange for receiving bonus floor area than was required under the then-existing zoning. That application was certified by the City Planning Commission (“CPC”) on June 5, 2017. However, certification is only an acknowledgement by the Commission that an application is complete; it does not provide assurance that the Commission will ultimately vote in favor of approving it. At the time the application was certified, the Department of City Planning (“DCP”), which serves as the Commission’s staff, expressed numerous concerns and indicated that they would likely recommend against approval of the application when it later came up for a vote. Although ERFA did not agree with DCP’s analysis, it became clear to ERFA’s leadership, as well as the elected officials who were co-applicants on the proposal, that the application faced likely rejection by CPC if it were to be brought to a vote. Following public feedback from CPC Chair Marisa Lago illustrating a path forward, ERFA submitted a new application to DCP calling for tower-on-a-base requirements rather than an absolute height limit. The four elected officials who were co-applicants on the earlier application were also co-applicants on the new application. After the new application was certified on October 2, 2017, ERFA’s original, related application, about which DCP had raised concerns, was withdrawn.
Q. ERFA has said it will go to court to challenge the Board of Standards and Appeals decision. How and when will that happen?
A. The lawsuit has already begun. On August 26, 2018, ERFA filed papers with the NYS Supreme Court to commence what is known as an Article 78 proceeding.
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 filed an “Article 78 petition” to challenge the BSA’s decision to grandfather the 430 East 58th Street project. ERFA 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.