Fight against Super-Tower in Sutton Area Continues as Council Member Kallos, the East River Fifties Alliance and East Side Electeds Oppose Appeal filed by Developer
Developer Requests Exemption from Zoning Change and More Time to Work Despite City Council’s Mandate to Remove Grandfathering Clause
New York, NY- Council Member Ben Kallos testified Tuesday before the Board of Standards and Appeals (BSA) in opposition to the construction of a mega-tower in the recently rezoned East Fifties residential neighborhood. Despite the rezoning, which was the result of a grassroots effort by the local community and elected officials, the developer, Gamma Real Estate, is appealing to the BSA in an effort to exempt its property from the new rules. Council Member Kallos joined fellow elected officials, civic groups, and dozens of members of the East River Fifties Alliance (ERFA) in opposing this application for a super-tall building in a residential neighborhood.
In November of last year, the City Planning Commission approved the ERFA application, but included a grandfathering clause designed to exempt 428-432 East 58th Street, the Gamma building, from the new rezoning. All of the rezoning’s co-applicants called for the grandfathering clause to be removed by the City Council, however, and the Council removed the exemption in the zoning text with a resounding 45 in favor, 0 against, and 1 abstention, leading the developer to appeal to the BSA.
At the hearing, Council Member Kallos presented testimony on behalf of Senator Liz Krueger, Council Member Keith Powers, and himself, arguing that efforts to rezone the Sutton area by the community were underway and known to the developer prior to them even purchasing the property, and so no special accommodation should be made. While the BSA has the power to allow construction to continue in cases when the zoning changes, catching by surprise a developer who has begun work on a building, in this case the developer bought the property at a discount knowing about the planned zoning changes and instead of slowing construction activity to ensure compliance with the Zoning Resolution, they hastened it, relying heavily on illegally granted After Hours Variances and even doing work at times without permits.
“If the BSA is going to live up to its purpose which is to grant relief to developers when there is undue hardship, it cannot grant this exemption because these developers knew exactly what they were doing at all times and decided to assume risk despite the clear and present intentions and efforts of the community, “said Council Member Ben Kallos.
Kallos’ arguments against this appeal are based on the timeline of events and his claims that the developers broke the law and worked without permits to vest the foundation.
Illegal After Hours Work Variances (AHVs)
Council Member Kallos argued that once the race was on to get the foundation for the building poured in time ahead of the rezoning the developer was so far behind he resorted to illegal methods to attempt at catching up. From Saturday June 3, 2017 to Saturday January 27, 2018 the developers obtained 30 After Hours Work Variances (AHV) allowing them to work totaling a full month during weekends nights and even holidays. The AHV’s were all filed claiming the work had to be done after hours for public safety reasons. However none of these reasons qualify for “Public Safety” AHVs that could not otherwise occur during regular hours.
A Scofflaw Foundation
Furthermore according to testimony filed by Council Member. At several points developers began to do work even after permits had expired or with no permit at all. Once such occasion recounted in the testimony occurred when on November 11, 2017 developers closed 58th Street with a permit in order to pour 880 cubic yards of cement. On November 18, 2017 it happened again cement was poured on this day from 7am to 10pm with no permit for work during those hours pouring 893 cubic yards of cement. Council Member Kallos and those against the structure argue that “while the developer was preparing their appeal to the Board of Standards and Appeals, and even after filing this appeal, the developer continued work on the building in question, concealing, altering and destroying the physical evidence of progress at the time of the zoning change.” As a result of that concealment preventing any independent evaluation and analysis, the BSA must not reward this act, and must assume that the building was not substantially complete by the time the rezoning went into effect.
Also providing testimony at Tuesday’s hearing were counsels from the applicant (the developer) and the East River Fifties Alliance, as well as civic organizations who opposed the development.
The BSA will consider the matter again at its June 19 hearing. Testimony from the public can still be provided by mailing it to:
Hon. Chair Margery Perlmutter
Board of Standards & Appeals
250 Broadway, 29th floor
New York, NY 10007
Last year’s rezoning was the result of a community led grassroots effort by the East River Fifties Alliance, whose member include 45 buildings, represented by co-op boards, condo boards and individual owners, and over 2,600 individual supporters living in more than 500 buildings within and beyond the rezoning area. Manhattan Borough President Gale Brewer, Senator Liz Krueger, and Council Members Ben Kallos and Dan Garodnick were co-applicants on the rezoning application. They were joined in support by Congress Member Carolyn Maloney, Council Member Keith Powers, Community Board 6, and numerous civic organizations including the Sutton Area Community, CIVITAS, Friends of the Upper East Side Historic Districts, and the Municipal Arts Society.