93rd Street: Penthouse Owner's Desperate 'Hail Mary' Sails Way out of Bounds
From the 93rd Street Beautification Association:
Please cut & paste & send the message below to BSA prior to March 18, 2009 by Regular Mail; Fax: 212.788.8769 (attention Mr. Ron Rizzotti) or Email: http://www.nyc.gov/html/mail/html/mailbsa.html
Ms. Meenakshi Srinivasan
Chair, NYC BSA
40 Rector Street, 9th Floor
New York, NY 10006-1705
Attention: Mr. Ron Rizzotti
Re: Calendar Number 162-08-BZ – 150 East 93rd Street – Manhattan
Dear Madame Chair,
For the last eight months, the applicant in the above captioned case has openly testified to various NYC city agencies and boards, as well as to the public, as to the dimensions of his proposed vertical addition for which he seeks a Special Permit to construct a whole new floor on top of the structure that already sits atop the roof of 150 East 93rd Street on historic Marx Brothers Place in Carnegie Hill.
Carrying his plans from meeting to meeting since last summer, applicant has persistently argued that, despite the fact that the dimensions of his proposed vertical addition are beyond the legal limits of the NYC zoning resolution, he is nonetheless entitled to a Special Permit. But applicant’s proposal has been met with fierce opposition as it poses threats to the character of the neighborhood; threats to the environment and will cause shadows and a loss of privacy for numerous residents in the community.
So now, after realizing that he can not prove his proposed addition would not have a negative impact on the character of the neighborhood; and after realizing that he can not prove his proposed addition may not have any impacts on the environment – and faced with the stark reality that the community and its elected officials vigorously oppose his project – applicant suddenly claims to have had a calculation epiphany (a dramatic mathematical error applicant claims to have only just discovered and which he blames solely on his architect – the same firm he proposes to engage to build his dream-duplex-perch) which he hopes will free him from the rigorous scrutiny attendant to any reasonable review of whether to grant a Special Permit.
But applicant’s eleventh hour argument is nothing more than a transparent attempt to circumvent the law by flouting its vital requirements. To argue that somehow BSA need only consider the impacts of 54.8 square feet, which applicant now claims is the amount that would extend beyond what’s legal under the applicable NYC zoning resolution and not the larger figure he has broadcast for the past 8 months, is absurd on its face.
Setting aside the fact that it has already been proven that applicant dramatically misrepresented the history of the extant structure atop which he now wants to build his dream-duplex-perch, and that all assertions proffered by applicant are, therefore, suspect, his latest argument is wholly without merit and should be dismissed in its entirety.
For, as a matter of law (and logic), whether the proposed vertical addition is 54.8 square feet beyond the FAR, or 154.8 square feet beyond the FAR, the process of review attendant to an application for a Special Permit remains the same.
Applicant now argues that BSA should only have to consider the impacts of the select 54.8 square feet which he claims is the area that extends beyond what is legally allowed. But applicant’s argument would render absurd the Special Permit process as an unreasonable interpretation of the law with no basis in reality. For the 54.8 square feet, upon which applicant rests his argument, do not exist independent of the whole of the proposed vertical addition. And it is the impacts of the whole addition that must be considered as a matter of law.
Applicant promotes the concept that somehow these 54.8 square feet magically exist in isolation as though suspended in midair by some invisible thread. But clearly, his argument is absurd.
The Special Permit is available, not as a matter of right, but as a matter of discretion. And the legislature clearly intended that this discretion, to allow development beyond what is legal according to the applicable zoning resolution, only be exercised after thorough consideration of all the impacts posed by the request.
The request here regards a proposed vertical addition – an entirely new floor that does not currently exist. The 54.8 square feet upon which applicant rests his brand new argument can not be portioned out from the rest of the proposed floor for the purpose of review.
This area does not exist separate from the rest of the addition. And to entertain applicant’s pretense that it does would be a perversion of the Special Permit process. For, as a matter of law, the impacts that must be scrutinized are the impacts posed by the whole of the project.
Whether the larger figure earlier asserted or the 54.8 square feet applicant now wishes to use, neither figure can be parsed out from the proposed vertical addition and considered independent of the whole as it would not exist in reality other than as a part of the whole.
All potential impacts of applicant’s proposed vertical addition (neighborhood character, environment, etc.) must be thoroughly considered regardless of applicant’s new assertion about his architect’s alleged 8 month old miscalculation. And as applicant has failed to obtain a negative declaration, and can not obtain a negative declaration on the facts of this case, he must also be required to complete an Environmental Impact Statement so that all potential environmental impacts can be fully reviewed before any discretionary action is taken on the part of the city.
I strongly oppose applicant’s request and respectfully ask BSA to deny the Special Permit he seeks.
Sincerely,
(please be sure to add your name & address)