Judges’ suck-up to the NIMBY mob puts even existing NYC buildings at risk

STEVE CUOZZO

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Upper West Side mob rule scuttled a 52-story condo tower — not one in the planning or wish-list stages, but one nearly finished. State Supreme Court Judge W. Franc Perry caved last week to obstructionistswho didn’t like the project at 200 Amsterdam Ave. on typical NIMBY grounds. They feared the shadows and Times Square-like crowds that its 112 apartments would have brought to the sidewalks.

Plus, it’s “grossly out of scale with the neighborhood,” said Olive Freud, president of the Committee for Environmentally Sound Development. Ahem — the Empire State Building was grossly out of scale with its neighborhood in 1930 and remains so today. Another local bafflingly whined on NY1 that 200 Amsterdam was “right behind a school.”

Perry ruled last week that 200 Amsterdam must be chopped from its current 668 feet to an unspecified lower height because it violates zoning rules. He decided that using air-rights transfers from “partial” adjoining lots, as the developer had, is illegal, even though no such prohibition exists and the Department of Buildings has allowed them since 1978.

Even so, the DOB took the objections seriously. It carefully weighed them after a lawsuit was filed in 2017. It even temporarily stopped work on the project for four months to give the matter the fairest deliberation.

But DOB regulators eventually decided that to deny a permit would be “arbitrary and capricious,” because they had allowed partial-lot transfers for 40 years. A second city agency, the Board of Standards and Appeals, which interprets zoning law, agreed. Perry sent the matter back to the BSA for a second look in 2018 — and in June 2019, it affirmed the DOB’s finding for a second time.

But howling from the Municipal Art Society, preservation group Landmark West!, Manhattan Borough President Gale Brewer and other “progressive” pols seemed to sway the judge.

In ordering the DOB to rescind the permit it gave to developer SJP Properties three years ago, Perry relied on a recent internal DOB memo that merely suggested the agency reconsider the 1978 rules on air rights.

Such internal discussions, common at every agency, carry no legal weight. Perry nonetheless cited the toothless discussion point to scuttle a $325 million project and shatter plans of condo buyers who already put down deposits.

SJP has been demonized beyond reason. Contrary to The New York Times, SJP and partner Mitsui Fudosan USA didn’t “create a ‘gerrymandered,’ highly unusual 39-sided zoning lot” to exploit air rights. All the rights were assembled by previous owners and inherited by SJP when it bought the land in 2015.https://nypost.com/2018/03/26/residents-pulling-out-all-the-stops-to-block-51-story-uws-apartment-tower/

The company didn’t build at its “own peril,” as plaintiffs’ lawyer Richard Emery claimed — it had every right to trust approvals by the DOB and the BSA.

Indeed, if Perry’s ruling stands, the cost of shrinking the tower should be borne not by the developer but by City Hall, which enabled it at every turn.

The situation has nothing in common with a supposed “precedent” of a 12-story haircut given to an East 96th Street building in 1991. That project blatantly violated the law by relying on an out-of-date zoning map. SJP built 200 Amsterdam on the strength of a current permit.

The court decision could ruin SJP, a reputable company that developed the fine office tower Eleven Times Square. The notion to take down part of 200 Amsterdam — how much of it, and by what means? — plunges its fate into indefinite limbo.

It also threatens to torpedo projects by other developers that are going up. Councilmember Ben Kallos wants to chop down a condo tower at 430 East 58th St., because, like 200 Amsterdam, its assembly is based on air-rights transfers from partial tax lots.

It could even nix permits and certificates of occupancy for existing buildings constructed with the help of partial-tax-lot transfers — and with consequences nobody can imagine. They include at least 20 structures around town — four in next-door Lincoln Towers — and even the giant Met Life Building at 200 Park Ave.

Perry’s ruling invites unchecked judicial meddling in future projects and emboldens those who think that every new building rises too high.

SJP might prevail on appeal. But given the courts’ current leftward, anti-development mood, it might be too tall an order.

Wednesday, February 19, 2020