Merely 12 Floors Above and Beyond the Law

By Sydney H. Schanberg

New York Newsday, September 26, 1986

There’s a 31-story building going up on 96th Street, just east of Park Avenue; that’s 12 stories higher than the zoning law allows on that site. It’s not clear whether the developer got misleading advice from his architects about the zoning rules or whether he knew the rules and tried to bluff his way through them anyway.

What we do know clearly is that he managed to get his excavation and foundation and the permits from the Buildings Department discovered its error this past summer and ordered all work stopped above the allowable 19th floor.

However, the developer — Albert Ginsberg and his brother, Lawrence, of the Park Capital Realty Corp. — didn’t stop work. Instead, they hired a sharp, politically connected real estate law firm, and the lawyers quickly wrapped themselves in a protective clause that is nestled in the City Charter. The clause, 669-c, says that if you appeal a decision by any city agency to the city’s Board of Standards and Appeals, that decision — in this case, the Buildings Department’s stop-work order — is temporarily put in abeyance.

So the Ginsbergs kept building at a furious clip, with the lawyers at Rosenman, Colin, Freund, Lewis & Cohen urging them on from the sidelines. The idea, apparently, is to get the 31 stories finished — to make it a fait accompli — before the Board of Standards and Appeals issues its ruling on the appeal. Of course, the City Charter makes it clear that the developer is proceeding at his own risk — meaning that although the stop-work order has been stayed, the board can ultimately find him in violation of the law and tell him to tear down everything above the 19th floor.

But the developers are counting either on a pragmatic, what-can-we-do acceptance from the board because the building is already in place at 31 stories or, more likely, on finding a more sympathetic hearing in the courts, where they clearly intend to take the case.

The developers and their lawyers base their argument on a particular  zoning map issued in 1983 whose shadings and dotted lines were perceived as somewhat vague (which is presumably what led the Buildings Department to issue the original permits in the latter part of 1985).

But the community group known as Civitas that brought the 12-story error to the Buildings Department’s attention this year points out that the basic zoning law affecting that site dates from 1973 and that its language has never been changed. That language describes a specially zoned area known as the Park Improvement District and says that no building in it can be taller than 19 stories.

And this area, as described in the Board of Estimate resolutions that made it law in 1973 and reaffirmed it as law in 1983 when some adjustments were made, includes the land along 96th Street up to “150 feet east of Park Avenue.”

And the Ginsbergs’ building, 108 E. 96th St., falls within that 150 feet. The Ginsbergs insist that the 1983 map changed it to 100 feet, thus putting their building outside the special district.

The hearing on the developers’ appeal was held three days ago by the Board of Standards and Appeals, one of those refreshingly unusual city agencies that seems to work efficiently and to brook no nonsense from the likes of Rosenman, Colin, Freund, Lewis & Cohen.

The lawyer from Rosenman, Colin, etc. — Jay Segal — argued with admirable energy if not convincing rhetoric that the 1983 map was the law and that the developer was an innocent lamb in relying on the map and that if there were ambiguities in the map, then the case has to be decided in favor of the property owner who has put so much money into the 31 stories.

Robert Davis of Berle, Kass & Case — representing the neighborhood group, Civitas, which has long campaigned against putting up high-rise building that will overwhelm the low-rise character of the district — argued simply that there were maps issued after 1983 that cleared up any possible ambiguities and that, in any event, the law rests solely in the zoning resolution language enacted by the Board of Estimate, which is as clear as a bell jar.

Appearing also for the community was City Councilwoman Carolyn Maloney, who said of the developer that he was “not Little Red Riding Hood who got confused over some maps and some zoning codes.” She asked: “When you are buying a multimillion-dollar piece of land, wouldn’t you check the zoning resolution itself?”

And she added: “City officials told him to stop building and yet he has continued building. He’s made a complete joke out of the law of the City of New York.”

Meanwhile, at the building site, the prevailing theme is frenzy. The developer is hurriedly installing windows from the top floors downward, instead of from the bottom up, so as to complete the illegal 12 floors before he can be stopped. 

On Oct. 14, the Board of Standards and Appeals will issue its decision. This corner hopes that it will severely rattle those windows.

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