By Emily Higginbotham
For three hours last week, the city’s Board of Standards and Appeals sat in their crowded chambers downtown at 22 Reade Street and listened to dense arguments from lawyers and impassioned pleas from elected officials and stakeholders about whether a 69-story tower should or should not be built on the Upper West Side. The hearing was the latest clash in a three-year campaign waged by community advocates to quash the construction of the Extell development at 50 West 66th Street. Much of the controversy surrounding the project has come from the developer’s use of mechanical voids – a practice which some builders have utilized to inflate tower heights through the use of largely empty spaces – but that issue was precluded from the August 6 meeting.
Another issue that was not discussed at length during the marathon meeting was zoning attorney Stuart Klein’s promise to file a request with the city to revoke Extell’s permit on the grounds that the foundation of the tower has not been completed in a timely fashion.
Great Wonky Detail
Instead, the debate of the day centered on zoning language and how, or if, it should be interpreted.
For the first hour and a half, in a chilly room with few windows, the lawyers representing Landmark West and the City Club of New York laid out their case in great, wonky detail, claiming that the tower’s height violates the rules of the Special Lincoln Square District where buildings are typically 30 stories tall.
Extell’s zoning attorney, David Karnovsky, however, had a provision in hand to back up his employer’s desire to construct a 775-foot tower, which stated that the zoning area allows a tower of that size so long as 60 percent of the building’s bulk is in a podium no higher than 150 feet tall.
Attorney John Low-Beer, who represents the City Club, argued to the board that the zoning resolution could be interpreted to exclude towers of such great height, even if it doesn’t do so explicitly, and that in the act of creating the special zoning district the drafters intended to limit the height of buildings in that area.
The Board Chair Speaks
Margery Perlmutter, the board’s chair, continually challenged Low-Beer’s argument, putting herself in the shoes of an architect and developer trying to build in the city. With such clear language, she asked, why would a developer question whether or not they could build at that height?
“Laws are made for us to follow and when they’re clear we follow them. And when we don’t have a question about them we don’t ask the question, and so we proceed,” Perlmutter said. “Why isn’t there somewhere in this that says the special zoning district was created to limit building heights to 30 or 40 stories? Why would someone dig into the history of clear language? When you have clear language you don’t look at legislative intent.”
Likewise, Karnovsky argued that the meaning of the text was unambiguous.
“The appellants argue that the plain language of (the statute) doesn’t mean what it says, but it means something altogether different,” Karnovsky said.
Counsel for the Department of Buildings defended the agency’s interpretation of the statute on the same grounds.
Elected Officials Have Their Say
Before ending the hearing, which will pick back up on September 20, the BSA opened the podium to the public to speak, at which point nearly half of those in attendance formed a line to have their say.
Among the few who showed up in support of the tower were representatives of Congregation Habonim, a conservative synagogue and school whose new facility is to be housed within the tower. They said that the future of their community would be at risk if the plans for the building do not continue.
The majority, however, spoke in opposition of the tower. Many of them were residents who feared the shadows the skyscraper would cast on Central Park. They characterized the development as an eyesore and worried that it would ruin the character of the neighborhood.
Manhattan Borough President Gale Brewer, Council Member Helen Rosenthal and a representative for Assembly Member Linda Rosenthal, doubled down on the argument that the tower violated the zoning resolution.
Perlmutter interjected during Council Member Rosenthal’s remarks, saying the role of the BSA is not to legislate but to judge whether the DOB has fairly interpreted the law.
“So why are we standing here if it’s futile?” Rosenthal responded. “In part, to reiterate the injustice of it ... it’s like the criteria are always changing. I’m here reiterating that for three years, this community has tried every avenue to stop this. We tried to close a loophole – and it turns out we closed it too late.”