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BSA Grant Variances atAugust 26, 2008 HearingArticle 78 Appeal to Follow
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Who is www.protectwest70.org? We are a group who wish to maintain the historic and smaller scale character of West 70th Street in NYC. The site is operated and maintained by West 70th Street resident Alan D. Sugarman, an attorney with a background in real estate, finance, litiigaton, engineering, and computers. In collaboration with Landmark West!, Sugarman has helped lead the effort to thwart the Shearith Israel proposal, and has made many strategic, analytic, graphic, and informational contributions to an effort that relies upon the support of many, many residents of the area. INFORMATION ITEMSNew Web Site - Protect the Village Historic District has established a new and nicely designed web site regarding another Rudin/Shelly Friedman production at protectthevillage.org. :New Filing in the Related Ramaz Case - same Attorneys and Same Theories PowerPoint Presentation-Full Size to CB7, 10-17-2007. Basic Facts - What are the issues? . The Five Zoning Findings -read more... Differences between the project as approved by CB7 in 2005 by and by LPC in 2006...read more ...
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August 29, 2008As expected, BSA on August 26, 2008 voted to grant all variances to Congregation Shearith Israel; the decision was released on Friday, August 28, 2008. Faxed version of BSA Opinion To be polite, the decision is cowardly and disingenuous - the BSA did not have the moral fortitude to candidly acknowledge that it was providing variances for the construction of condominiums where no programmatic needs exist. The findings of fact are in reality finding of conclusions; the positions attributed to the opponents were mischaracterized to provide red herrings to attack, the analysis is simplistic and flawed, and the case law citations are generally not on point. As in all BSA decisions, opponents have the burden of proving that the applicant's statements are wrong, and the standard of proof is beyond all reasonable doubt. In other words, whatever the applicant claims is accepted by the BSA, even is palpably untrue. An Article 78 proceeding, appealing the decision to the Supreme Court of New York County must be filed within 30 day, or by September 29, 2008. Stay tuned. August 6, 2008The BSA is expected to grant variances to Congregation Shearith Israel at its August 26, 2008 meeting. Community opponents will be filing an Article 78 Appeal to the Supreme Court (the lowest trial court in NY State) within the allowed 30 days. Because we are moving into litigation, we believe it is prudent to restrict access to the organized files on the site so we are not a free litigation resource for opposing counsel. We will publicly post some documents - for example July 29, 2008 Post-Hearing Statement in Opposition, Alan D. Sugarman June 10, 2008 Supplemental Opposition Statement, Alan D. Sugarman Jay Greer Submission of July 29, 2008. In order to pursue the appeal, financial support is needed as well as legal research support- the type of researched performed by second year associates, in the area of zoning law, administrative law, constitutional takings law, and Article 78 proceedings. Please contact sugarman@sugarlaw.com. Please also contact us if you need access to the documents. July 9, 2008We note with sadness that our colleague, neighbor, friend, and inspiration Norman Marcus (1932-2008) passed away on June 30, 2008. A memorial service held yesterday was attended by his family and many many friends. A link to his obituary is here. July 9, 2008Today's New York Times has announced that the New York Historical Society has cancelled its plans to build a 23 story luxury condominium on a vacant site it owns on West 76th Street. Instead, the Society has already raised $55 million of the $77 million needed for a complete renovation and reconstruction of the Society's building. The project involved the same architects and lawyers who are behind the Shearith Israel project, which was seen as the stalking horse for the NYHS project as well as other projects around the City. 76th Street residents, realizing this, have helped in the opposition to the Shearith Israel project. As well, Landmark West helped coalesce the opposition and Kate Wood was quoted in the article. It is time for Shearith Israel to follow the lead of the Historical Society, the West Side Jewish Community Center on 76th Street, and the Eldridge Street Synagogue, and raise the funds for its new school and community house project and construct an as-of-right building, with a design from its skilled architects that is no a glass walled condominium design. June 24, 2008 - The Fix Is InIn caving to its masters, BSA "Red Hooked" the Community on Monday and Tuesday, revealing that its 16 months of hearings were nothing more than a sham, as if we did not know from the begriming, which started with an ex parte hearing. At its open executive committee hearing on Monday, the BSA Chair announced that it seemed clear that the Congregation had satisfied all the findings required for a variance, and all the other Commissioners took the signal and chimed in behind her. The formal hearing was held June 24, 2008 at which the opposition lambasted the Board. At the conclusion of the hearing, the Board announced that the final decision will be issued on Tuesday, August 25, 2008. This means that an Article 78 petition by the community appealing the expected negative decision must be filed on September 25, 2008. The following statements were filed by the opposition:
The Congregation showed up with what appears to be its new litigation counsel, a member of the Congregation who is a partner at the Proskauer firm, a firm where partners earn over one million dollars a year. We await this partner telling the court that his Congregation is in desperate need of financial support, and that the variances are needed so as to lower his membership dues and building fund contributions. We expect the Article 78 case to be a landmark case - what the Congregation wishes to do is to provide a right to non-profit religious institutions to obtain variances to build condominiums to support the institution, (not even with a showing of financial need.) In order to succeed, the Congregation will be asking the courts not to apply the important Penn Central, St. Bartholomew, and Ethical Culture cases. The BSA and it political masters wish to disguise what it is doing so that the numerous religious organizations in Brooklyn who have filed for, and have been rejected for, identical type variances will not catch on. But, the record is too transparent. The politicians will have no cover at all, whatever they want to tell their buddies on the contribution cocktail circuit. This would be fun, if it were not so tragic. June 17, 2008 - Congregation Admits False Statement to BSA and that No Case Law Supports its PositionJune 17, 2008 CSI Reply Filing to BSA Complete (61 pages) June 10, 2008. Opposition Files New StatementsSugarman Supplemental Opposition Brief. May 21, 2008. New web site and similar zoning fight in Greenwich Village.The Rudin Organization and Friedman & Gotbaum are using the same concepts in the St. Vincent's proposal in Greenwich Village Historic District. The opposition has a new web site sponsored by Protect the Village Historic District at www.protectthevillage.com - there is a Community Board 2 hearing on May 22, 2008 at NYU commencing at 6:00 PM. May 15, 2008 - New May 13 Filings by CSIShearith Israel continues to morph is application, but is May 13, 2008 filings with the BSA are basically a regurgitation of the past filings, and, is non-responsive and misleading in so many way as to be contemptuous of both the BSA and the Community. And, seriously, it has another false statements to justify an investigaton by Scott Stringer - of course, that all depends on what you mean by the word "false." Cover Letter dated May 13, 2008 from Friedman & Gotbaum to BSA. May 8, 2008
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KK-1 |
Form BZ Instructions |
KK-11 |
2008-02-12 Freeman Testimony from BSA Transcript Shearith Israel |
KK-23 |
2007-02-28 Freeman Frazier Feasibility Economic Analysis |
KK-52 |
2007-09-06 Freeman Frazier Letter to BSA |
KK-77 |
2007-10-24 Freeman Frazier Letter to BSA |
KK-98 |
2007-12-21 Freeman Frazier Letter to BSA |
KK-138 |
2008-01-30 Freeman Frazier Letter to BSA |
KK-141 |
2008-03-11 Freeman Frazier Letter to BSA |
KK-172 |
2008-04-01 Freeman Frazier Letter to BSA |
KK-180 |
2007-10-24 AOR Scheme C Drawings |
The relevant portion of 72-21 of the Zoning Resolution relating to the feasibility issue is finding (b) which states:
(b) that because of such physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this Resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot; this finding shall not be required for the granting of a variance to a non-profit organization;
A serious problem with the Freeman Frazier study is that it does not take the time to cross reference its many many tables and computations to specific drawings from the architect. Item M requires that financial analyses provide among other things analyses for "existing, complying, and proposed condition." No financial analysis for existing conditions has been submitted - this would show the current income form Beit Rabban. As to the "complying' condition, there now seems to be a dispute as to what is the "complying" or "as-of-right" condition.
Until October the "as-of-right" conditions were shown in the As-of-Right Scheme Drawings submitted on October 27, 2007 - similar to the AOR drawings submitted on April, 2, 2007.
As-Of-Right-Scheme-A Drawings
Lesser Variance -Scheme-B Drawings
As-Of-Right-Scheme-C Drawings
The last scheme, As-Of-Right Scheme C is an all residential scheme, and, so as to completely confuse everyone, Freeman Frasier -we think - also call this the "All Residential FAR 4.0 Scheme." But, they are so sloppy, or perhaps so deceptive wishing to confuse, that they play fast and loose with their cross-references.
As-Of-Right Scheme C aka All Residential FAR 4.0 Scheme is the benchmark scheme for the 72-21 findings. To be clear, under finding (a) CSI has to show that there are unique physical conditions. They have not done this.[They try to assert that a unique site condition is the same as a unique physical condition. It is not. But, they do not show a unique site condition either). Assuming they did, next under finding (a), CSI has to show that there is a hardship directly related to the unique physical conditions. They have not done this either. Since CSI is proposing a profit-earning building, assuming it satisfied (a), it would have to show that the financial nature of the hardship under finding (b). It would have to show that if the property were developed to its best use, it would be unable to earn a profit. That is where the feasibility study comes in, and, that is why the As-of-Right Scheme C is so critical. If that earns a profit, then CSI could not meet finding (b) either (of course, CSI cannot satisfy any part of finding (a).).
Subsequently, at a hearing, one of the BSA Commissioners was coaching CSI in how to get around the fact that the feasibility studies were not supportive of the CSI position, and suggested that CSI prepare an all residential condominium analysis as if the upper condominium floors were a separate project. See BSA Transcript of November 27, 2007 at pages 26 and 27.
This then resulted in the 'sliver scheme" wherein suddenly, CSI now claimed that an as of right building was not the FAR 4.0 schemes shown in April and October, but was a scheme that included a 17 floor tower on the 17 foot strip of land in the R10A zoning district adjoining the Sanctuary. Freeman Frazier needed this different building so that it could fabricate an analysis to show that an all residential building would show a loss. But, despite specific requirements of the BSA BZ Instructions, CSI did NOT provide drawings for this sliver building - making it impossible for anyone to analyze the critical issue of loss factor and making it IMPOSSIBLE for an honest construction valuator to provide construction cost estimates. Of course, one now wonders how an HONEST feasibility study could proceed without these drawings.
[check back - this above comment is not complete]
We received today yesterday's filing to the BSA of the Congregation's response consisting of a mere 12 pages. The obvious tactic was to either distort or ignore inconvenient points raised by the opponents: for example, the request of an inspection by the opponent's architect, first made on February 21, 2008, was just ignored. The BSA hearing is scheduled for April 15, 2008.
Submission by Congregation to BSA (complete).
Cover Letter of Friedman & Gotbaum of April 1, 2008.
Freeman & Frazier (Feasability Consultant) Letter of April 1, 2008.
Charle Platt (Architect) Letter March 28, 2008.
When involved in disputes relating to planning and zoning, words do not always suffice. To elucidate important issues, ProtectWest70St.org helped create two new graphics which were filed March 25 (see listing of all filings below or in right column). These new graphics illustrate the lack of substance to two main arguments of the Congregation.
As background, obtaining a variance from the BSA is all about showing hardships - and if the hardships relate to the disabled, the very young, or to religion, all the better to gain sympathy and ward off incisive questions. The Congregation's case rests in part on showing that the existing and as-of-right buildings are inadequate to resolve alleged serious circulation and ADA access problems and that the buildings are unable to accommodate the Congregation's programmatic needs, and thus only the variance-requiring proposed structure will meet those needs. [At the same time, the Congregation concedes that the only purpose of the waiver for extra floors in the proposed building is to build market rate condominiums so as to fund the Congregation.]
Those attending the hearings have heard sympathetic stories as to access. With ProtectWest70.org graphics at prior hearings, opponents have been able to expose the illegitimacy of the claims that resolving circulation and access "hardships" have anything to do with this variances requested.
The new graphic outlines in red all of the areas in a proposed building required to accommodate the asserted access and circulation needs of the Congregation. All such areas are on floors 1-4 and the basement, and consist of a small lobby and an ADA compliant elevator to provide access from the street level to the sanctuary. What is also true is that both the As-Of-Right and the Proposed schemes resolve the access issues in an identical manner.
So, if both the As-Of-Right and Proposed schemes address access and circulation in an identical manner, what then do these issues have to do with the variances? Nothing - but it was a good try, and had many fooled for a long, long time.
It is true that in the existing building, there is an elevator, installed in 1954, with one big problem - it does not provide access to the lower floor Levy Auditorium. This is indeed a problem, one that has existed for years and that could be solved two ways: retrofit the existing elevator which is feasible or construct the as-of-right building with a redesigned elevator, but what is not needed to accommodate access are any variances or the proposed condominium floors .
But, the argument does not end there - for the Congregation then argues that a substantial hardship exists on the site, because of the need to provide access and circulation facilities (i.e., an elevator) to the historic landmarked religious Sanctuary, and this can only be provided in a new building. Thus, the argument goes, the Congregation cannot achieve an economic return from the site because of the hardship in providing access to the Sanctuary.
The graphic shows that the Congregation could easily have its cake and eat it too with the 100 by 64 foot site. If it wished, it could build an all residential building on the site, earning millions of dollars, but just carve-out space in a few places, shown bounded by red in the drawing, so as to satisfy these access needs. For variance purposes, the Congregation's access arguments have become big losers.
The second graphic relates to the Congregation claim that it faces a hardship in meeting its programmatic needs for classrooms; they claim an as-of-right building is not sufficient. In support of this argument, the Congregation recently submitted an analysis to show that insufficient space for classroom existed on floor 2, 3, and part of the the 4th floor on a 6 story as-of-right building. But, it is not a hardship under under variance law if the needs can be met elsewhere on the site.
The graphic illustrates all of the other areas (in blue) on the zoning site which are available for educational programmatic needs, which the Congregation would like to have the BSA ignore. In the as-of-right building, there are two top floors that are available, but the Congregation wishes to sell that space as condominiums. The Congregation wishes to half of the 4th floors as a caretaker's apartment - 1200 sq ft new apartment with views of Central Park and two bedrooms, rather than pursue other options, such as the parsonage space shown in blue. The other available spaces and related issues are discussed in the recent March 25 submissions of Jay Greer, Craig Morisson, and Alan Sugarman.
Today, the following statements were filed with the BSA in opposition to the application of Congregation Shearith Israel. The response of the Congregation are due April 1, 2008. The next BSA hearing is scheduled for April, 15, 2008.
Statement by Alan D. Sugarman
Opposition Exhibits
GG - Drawings Classroom Space and Access
HH - Re Beit Rabban IRS Form 990 and Rent
JJ - Re Classrooms, Toddler Program
Statement of Martin B. Levine Metropolitan Valuation Services (re Economic Feasibility)
Statement of Landmark West - Kate Wood
Attachment to LW Statements - Soft Sites CPW
Statement of Mark Lebow
Letter Brief of Susan Nial, Esq.
Statement of Craig Morrison
Grubb & Ellis Appraisal re 18 West
Letter of David Rosenberg re DOB and Jurisdiction
Statement of Jay Greer re Classrooms Programmatic Need
Statement of Jay Greer re Funding of Religious Organizations
Yesterday, the Congregation provided its latest display obfuscation in its filings to the BSA - still not responding to requests made repeatedly by the BSA.
In another transparent act to limit information access by the opponents, the Congregation did not as a courtesy provide copies of the documents to the Opponents on the due date.
Opponents were forced to send an intern to BSA late Tuesday afternoon to the BSA offices.
The Congregation did serve a copy a day late by hand, but, late is late.
Shelly Friedman is becoming boringly predictable in his discourtesy and lack of transparency as to serving documents. As noted below, he is even is throwing a fit about a normal request to have the Opposition's Architectural expert inspect the Congregation's zoning site.
The following documents were filed by the Congregation on March 11, 2008:
Cover Letter dated March 11, 2008 from Friedman Gotbaum.
Letter/Report from Feasibility Consultant Freeman Frazier.
Letter/Report from Planner Consultant AKRF.
Program Usage Chart
Modified Proposed Drawings - Re 18 West Windows
Zoning Maps
Lebow-Friedman Letters with Drawing Shown at BSA hearing.
While we wait for the submission of the Applicant due March 11 to see if Applicant is able to respond to the questions of the BSA and to submit information that should have been in the finial April, 2007 Application, some update and additions have been made to this site.
The Drawings/Renderings page has been updated and corrected by adding missing drawings.
Recent Correspondence Added:
Letter February 21, 2008 Mark Lebow to Shelly Friedman
Letter March 4, 2008 Shelly Friedman to Mark Lebow
Letter March 7, 2008 Alan Sugarman to CB7
The Second BSA Hearing was held on February 12, 2008. Opposition Filings included:
Transcript - posted Feb. 25, 2008
Statement by Alan D. Sugarman
Report by Craig Morrison Opposition Architect
Report by Marty Levine Opposition Valuation Expert
Statement by Jay Greer
Statement by Bruce Simon
Statement by Kate Wood Landmark West
Statement by Assemblyman Thomas Duane
Statement by Architect Melvin White re 91 CPW
Floorplan of 91 CPW
Statement of Otis Pearsall
Statement of Elliot Sclar Re Contextual Zoning
18 West Window Analysis (to be provided)
Short summary - There is an Alice-In-Wonderland feeling about these hearings. Even though there are clear findings that must be made by the BSA for each of the variances requested, at times it was hard to see how the Applicant's claims related to any particular required finding. Rather, the intent of the Applicant seems to be to confuse and complicate and avoid relating particular arguments to particular findings. Moreover, even though the Applicant Congregation is asserting financial need, the BSA Commissioners act as if they wish neither to see or hear any evidence from the Applicant as to such financial need, nor to see or hear any evidence from opponents as to the lack of financial need. This even led to Commissioner Collins taking the position that financial resources available to a religious congregation from it trustees and members was not of relevance when the religious congregation was asserting financial need, apparently concluding that the principle implicit in the biblical commands of tithing were of no meaning in the modern world. Finally, the BSA sees its mission as to finding ways to grant variances, and providing repeated chances to an Applicant to file basic information, devising "creative" interpretations of the zoning law, and even inviting the Applicant to run out the clock. This Ap pliant appears so incompetent, but, of course, its skilled attorneys and consultants are not incompetent - this is an exercise in making the simple complex and obfuscating the facts, and the BSA plays along.
On February 4, 2008, the Congregation filed a 3 page response to the BSA, together with a 4 pages statement by Charles Platt, its architect of Platt Byard Dovell White and a 3 page response from its valuation expert, Jack Freeman of Freeman Frazier.
The letter with attachments are available here:
February 4, 2008 Friedman & Gotbaum - letter only.
February 4. 2008 Platt Letter
January 30, 2008 Freeman Letter
A hearing is scheduled at the BSA for Tuesday, January 12, 2007 at 1:30 PM.
Community opponents on January 28, 2007 filed with the BSA a comprehensive response to the December 28, 2007 Congregation filing. Landmark West retained architectural and appraisal consultants to prepare reports.
The following documents were filed:
Cover Letter of Mark Lebow
Statement in Opposition Prepared by Landmark West
Statement in Opposition by Alan Sugarman
Report of Architectural Expert Craig Morrison
Report of Valuation Expert Martin Levine of MVS
Opposition Exhibit Binder I (Large File: 11 MB)
Affirmation Describing Exhibits in Exhibit Binder
*Cover Letter Dated December 28, 2007 from Friedman & Gotbaum to BSA.
*Response Letter dated December 28, 2007 from Friedman & Gotbaum to BSA.
Exhibit A - Deeds.
Exhibit B - 1984 City Planning Commission Reports re Mid-Block Zoning.
*Exhibit C - Fourth Revised Feasibility Analysis by Freeman Frazier.
*Exhibit D - Programmatic Diagrams PR E-6-10 and PR P-6-11.
Exhibit E - Map re building in R10A/R8B.
*AKRT Summary Explaining Why Shadow Study Not Submitted.
*Revised Versions of Prior Drawings P-3,P-7,P-9, P-10.
LPC Transcripts (to be posted later).
Transcript - 4 to a page
Transcript - 1 to a page
Landmark West has obtained the 81 page transcript of the November 27, 2007 BSA first hearing re Shearith Israel - for which BSA charged $4.00 a page. Current procedure is some federal courts now: transcripts are posted on the court web site, charge is $.10 a page with a 30 page maximum, or $2.40.
Community Board 7 at its Tuesday December 4, 2007 meeting voted to oppose all of the seven variances sought by Congregation Shearith Israel, even opposing two variances that had been approved by the Land Use Committee at is November 19, 2007 meeting. See Land Use Committee Minutes and Resolution. The next stop will be BSA hearing on February 12, 2008 - and, the BSA has been known to ignore Community Board positions on variances.
The evening was a deflating blow to the Congregation, especially the full Board's opposition to two variances that had been approved by the Land Use Committee. Co-Chair of that Committee, Richard Asche, acted as the chair for the part of CB7 Tuesday session related to the Congregation. Prior to the meeting, community opponents had agreed with CB7 to limit their presentation to 15 minutes, with a group presentation, and not limiting any one speaker to the standard 2 minutes.. Once Asche took over, the rules changed. The Congregation did not give a presentation (very unusual) and so Asche abruptly started calling names in random order for community speakers, without calling on the Congregation to state its position. Community opponents objected to this aberrant procedure - but Asche persisted. Even so, not to be deterred, opponents scrambled and were able to get their main points across, all the time being harassed by the clock. When opponents were done, Asche then asked for comments from the Congregation - but, they were speechless by then. Nonetheless, even the two variances shepherded through the Committee were effectively challenged by other CB7 board members. It would seem that the Community Board should encouraged focused community presentations, but, that is not what happened Tuesday.
Then, a week later on November 27, 2007, the BSA held it first hearing defying CB7 which, was, from the Congregation's point of view a big let down, After three attempts to submit a variance application, some BSA commissioners seemed not to be buying the Congregation's application. So, the BSA is giving one more chance to the Congregation to submit the needed information - until December 26, 2007, and set the next hearing for February 12, 2008. The Congregation's economic consultant has now earned the moniker "Ghost" Freeman, this being the third straight hearing where he uttered not a work in defense of his cookery. The Congregation's attorney, Shelley Friedman lamely admitted that he had no legal precedent at all to support the claim for a variance, also managing to rise to new heights of not credible statements (to be documented in a later posting).. And the architects, who are still carrying around an admittedly inaccurate two year old model, also provided their own lameness - a pious description of the handicapped access problems in the current community building, forgetting to note that the resolution of all these problems was provided by the as-of-right plans - thus it was a presentation completely irrelevant to the application. Not to be outdone, Congregation officials provided similar over the top sympathy invoking descriptions of problems with the current building.
Community opponents mounted an aggressive and powerful attach, highlighted by the moving statement of Norman Marcus, dean of New York City zoning. Landmark West's attorney Mark Lebow smoothly laid bare the Congregation's application, the backed up by a number of polished presentations by other lawyers who live in the Community. Residents of 18 West pointed out the impact of bricking up their windows. Landmark West submitted this opposition statement.
Statement of Senator Thomas Duane and Assemblyman Richard Gottfried presented strong statements opposing the variances - notable by their absence was Manhattan Borough President Scott Stringer and Council Member Gale Brewer who, it seems, back the Congregation, but, are afraid to come out and state their position, perhaps realizing that most of their constituents flatly disagree. The political nature of the process was underscored by East Side Attorney Linda Blumkin who confronted the Board with a recitation of Shelly Friedman bragging about basically, how, the Congregation had the Bloomberg administration behind them. Recall Peter Jennings.
The LPC approval we know was a pure political act and then we have the ex parte meetings and the BSA ignoring scheduling rules in the City Charter. The BSA Chair refused to recuse herself, admitting to the ex parte meeting, but defending the meeting on the grounds that the application had not been filed, and she had offered a similar meeting to me. New rule of judicial ethics: it is okay to meet privately with the judge to discuss your case if you do it before the case is filed and then wait a few weeks before filing. Extraordinary. Plus, the Mayor's Office seems to think this is okay to. (One would think that ex-Attorney General would feel at home with this approach to the law.)
So why are we concerned: in the real world the application would have been rejected two days ago. The applicant has not facts to support their position and no legal theory. After three objection letters from the BSA, the applicant still has not provided basic information and continues to shift positions and theories. So, why is this pain continuing?
The Congregation Kehilath Jeshrun/Ramaz project on East 85th Street was the subject of more New York Times reporting (Condos Above Classrooms Strike Some as an Odd Mix, November 11, 2007) and letter (Battle Over Air Rights on the Upper East Side - Linda Blumkin, November 25, 2007). The BSA Chair bristled when the Ramaz project was mentioned at the Shearith Israel hearing - strongly stating that these were two unrelated projects. Of course the are not - these are the stalking horse projects of other non-profits and the New York City developers.
The CB7 Land Use Committee voted to oppose most of the variances at its November 19, 2007 meeting. See the transcript. See Land Use Committee Minutes and Resolution.
BSA seems still to be intent in proceeding with its irregular meeting and to be ignoring the serious issues raised by the improper ex parte meetings. In the meantime, we have received a copy of the opposition statement submitted to the BSA by Ross Moskowitz of the firm Stroock on behalf of the 111 East 85 Street Owners, Inc. concerning the Congregation Kehilath Jeshrun/Ramaz project on East 85th Street (see November 11, 2007 NY Times Article). This project is similar to the Shearith Israel project, and the institutions are represented by the same law firm used by Shearith Israel. The Opposition parallels many of the same augments raised against the Shearith Israel project. Included with the statement is an economic analysis by Metropolitan Valuation Services demolishing the study provided by the institutions. The same fallacious reasoning is used and the report concludes:
There is a critical flaw in the methodology employed in the Feasibility Study. Charging the developer for almost twice as much developable square footage in the "as of right" scenario is an egregious error.
We are catching up on postings and organizing documents. More to come. We are attempting to compile a consolidated set of the Congregation filings with the BSA. The October 27 filing supersedes some prior filings, supplements other prior filings, and leave some untouched. The real piece of work is the so called economic Feasibility Study. It is now spread out over three documents, providing ultimate flexibility to bob and weave. An example of bobbing and weaving is the Congregation's position on the legal basis for even submitting the feasibility study. At the hearing on October 17, 2007, the Congregation said it was not submitting the study as a basis for a finding under 72-21 (b), but under 72-21(e): then, on October 27, 2007, they submitted their Second Revised Application in which they claimed the study was relevant to a (b) finding. Their problem is that the study does not meet the requirements of either finding, so they do not wish to present a fixed target.
The Board of Standards and Appeals intends to continue down its course to hold its premature meeting on November 27, 2007, and, in the meantime its new General Counsel wrote a letter to Assembly Member Gottfried asserting its rights to hold ex parte meetings in a quasi judicial proceeding. Quasi judicial means "like a court" and so the BSA now says it is just fine for a party in a case to have a private meeting with the judge to go over the theory of the case prior to starting the case. How extraordinary. The BSA is willing to fall on its sword for the benefit of the New York City zoning lawyers. We responded yesterday with a letter to the BSA inquiring about whether the on-site visits conducted by the Commissioners constituted ex parte meeting if, as is assumed, the applicant shows the Commissioners around. We are waiting. Search for recusal on this site and you will find other letters relating to this issue.
In another chapter of the Congregation's openness with the Community and sharing information, an October 31, 2007 letter from Freidman & Gotbaum made it way to us yesterday via a city agency. We were copied, but, for some reason the letter never got to us. The Congregation, which is building a 6000 square foot sub-basement banquet hall with sub-standard exits, claims that 9/11 security precautions prevents it from turning over the information. The real message from the Congregation is that they will only turn over information required by the BSA, and, that the Community should trust the BSA to extract the information from BSA. This is the agency that Frediman & Gotbaum described as the "easy" agency - the same BSA that holds secret meetings with the Congregation and will not turn over the notes of their meetings. This is a hysterical letter. Clearly, the Congregation is most fearful of the sharing of information with the community and to efforts such as this web site.
We also have the complete lack of scrutiny provided by either DOB or BSA to the banquet hall. A piece of news this past week concerned the DOB's intention to revoke of a permit for a banquet hall at the Third Church of Christ, Scientist at 583 Park Avenue. The DOB did not actually revoke the permit, but stated that the facility appeared to be a commercial catering facility and is not an accessory facility. We note that the Levy Auditorium under the Sanctuary has been reduced in size over the years due to extra rooms cut out of the main assembly room. We also note that the Congregation, rather than use the Parsonage for offices etc., is renting the Parsonage as a private residence on a commercial basis. So, move the offices off the Levy Auditorium to the Parsonage, and the Congregation would have its assembly area.
Mark Lepow, President of the 18 West 70th Street Cooperative has written a letter to Community Board 7 urging CB7 to press the BSA to delay its hearing. Lepow argues that all of the delays are a result the non-responsive and inaccurate submissions from the Congregation and points out to the Community Board that the description of windows blocked by the project are still not accurate, even after two objections by the BSA.
Mark Lebow has written a strong letter to the BSA objecting to holding a hearing and asking that the BSA hearing be delayed until the Community Board may deliberate upon the matter.
The BSA issues a notice of hearing for it first hearing on Congregation Shearith Israel for November 27, 2007. The only problem is that the BSA rules requires 30 days notice.
Under pressure from the BSA, CB7 announced a meeting of the Land Use Committee for November 19, 2007 and a meeting of the full Board on December 4, 2007. Yet, the City Charter and the rules of the BSA provide a community board 60 days to review the matter.
The BSA hearing is being improperly convened - see summary of rules violated.
Why the rush. ProtectWest70.org today sent a letter to BSA objecting to the entire procedure and pointing out numerous deficiencies. The letter include highlights of the October 17, 2007 CB7 pre-hearing transcript, including Shelly Freidman bragging about how the project has the imprimatur of the Bloomberg administration. According to Shelly, we all should go home, and the BSA should stamp the project approved, since it has all been decided.
Stay tuned. The BSA's Initial Hearing in this matter is set for November 27, 2007, perhaps. But, the CB7 has 60 days from the substantially complete application to consider the matter.
Yesterday, October 26, 2007, CSI filed with the BSA a re-revised application, but, neither CSI nor BSA did not bother to provide copies to anyone. As of this afternoon, copies of the entire package had not been provided to either the Community Board or to Landmark West. Missing as of this time is the revised Feasibility Study and the revised Drawings
Landmark West sent an intern who retrieved second revised application from the BSA late Friday. The documents were stamped at the BSA Thursday, at 2:00 P.M. - despite promises made, neither the BSA nor the Congregation advised CB7 or Landmark West of this filing -until LW learned of it Friday afternoon..
It also appears that the BSA rushed ahead in an instant to schedule the first BSA hearing for November 27, 2007, it would seem without even reading what was submitted to them. This of course puts the Community Board in a predicament. The BSA had not scheduled the first hearing previously, because the Application was not deemed substantially complete. The Community Board is provided 60 days after a substantially complete application is filed to hold its meeting. Yet, the BSA has rushed ahead to schedule a hearing, even before the Community Board even received the package, and then scheduled a hearing only 30 days into the 60 days allowed to the Community Board.
Redlined Version of Second Revised Application.
Clean version of Second Revised Application.
As Filed With Stamp Second Revised Application.
Second Revised Feasibility Study.
Explanation of Response to Objection.
Drawings:
As-Of-Right-Scheme-A
Lesser Variance -Scheme-B
As-Of-Right-Scheme-C
Proposed Scheme
Despite our initial misgivings, the Community Board meeting this evening was an excellent example of community consideration of a complex project. The comments and statements were thoughtful and focused. This was considered to be a preliminary meeting. We presented some of the following Power Point Presentation slides (six to a page condensed version here). We will have a transcript within a few days.
There had been misunderstandings as to the purpose of the meeting. It was suggested initially that this would be the actual hearing, when, in fact, it was a preliminary hearing, used to familiarize the Committee with the project. Penetrating questions were asked by the Committee members, many which the Congregation was unable to answer. Perhaps the Congregation's attempt to stampede CB7 may not have had the anticipated outcome for CSI.
Statements Submitted to CB7 Land Use Committee:
Landmark West - Kate Wood
Mark Lebow, Esq.
Alan D. Sugarman (summary)
Alan D. Sugarman (PowerPoint-6-up)
Mart Hartnett (PP re Financial Resources)
James Greer
Bruce Simon, Esq.
Jean Adams
Without any rational basis, Community Board 7 has decided to proceed with consideration of the Congregation's application to the Board of Standards and Appeals, even though the BSA has concluded that the application is incomplete and facially erroneous, so much so that the BSA will not even calendar the matter. See letter to CB7 dated October 15, 2007.
Some would conclude that CB7 is contemptuous of the BSA since the BSA is the determining authority. CB7 is thus considering an incomplete application, in fact an application that the BSA has found is wanting and inadequate and filled with inaccurate statements. This is nothing new. Last time around CB7 approved for landmark purposes a building with no setback from the property line when the model presented to them had a setback and never bothered to require meaningful perspective drawings. Why be bothered with the facts or logic or the law? Full steam ahead.
BSA has just issued new objections to the Congregation. We have not analyzed them yet, but, it would seem not appropriate for CB7 to hold its meeting without a complete application.
Following is the CB7 notice of the October 17, hearing:
Wednesday, October 17, 7:00 PM At Congregation Rodeph Sholom, 7 West 83rd Street (Central Park West)
6-10 West 70th Street (Central Park West.) Application to the Board of Standards & Appeals by Congregation Shearith Israel for a variance to waive lot coverage (R8B & R10A portion), rear-yard-interior lot (R8B & R10A portion), building & base eight setback (R8B portion), and rear setback (R8B portion) in order to construct an 8-story (plus penthouse) mixed-use building.
Landmark West has alerted us to the availability at New York Law School's web site of a 50 minute video a September 21, 2007 talk by BSA Chiar Meenakshi Srinivasan, in which she discusses variances and religious institutions.
Although Community Board 7 (CB7) apparently has scheduled a meeting of its Land Use Committee to consider the CSI revised September application, today Landmark West opposed hearings until such time as the CSI adequately responded to the June objections of the Board of Standards and Appeals. Claiming that there should be no Community Board meeting until CSI had filed a complete application, attorney Mark Lebow with his letter to the BSA and CB7 provide an analysis by planner Simon Bertrang detailing the deficiencies, and also cited Alan Sugarman's opposition of September 19, 2007. Earlier, on behalf of the community, Bertrang and Sugarman had filed detailed objections to the April CSI initial application.
Today's New York Sun published an article "A Classical Gem of Central Park West", by Francis Morrone criticizes the the Landmarks approval of the design. Morrone writes:
The city's oldest Jewish congregation, Shearith Israel, wishes to put up a modernist residential tower next to its landmark synagogue. The synagogue, which fronts on Central Park West, may be the most beautiful in the city. That makes any appendage to it a matter of urgent public concern.
Ramaz KJ Project East 85th Street: Friedman & Gotbaum Mounts Effort to Gut the Zoning Laws on East 85th St.
Who could imagine that the Congregation Shearith Israel's application of variances was the stalking horse for a City wide effort to dismantle the zoning law ... read more
ProtectWest70.org today has filed a 25 page preliminary opposition statement with the BSA together with a cover letter describing the failue of the Congregation to respond to the BSA Objections in a complete manner and the new issues raised by the Revised Application by the Congregation. Because of the great number of questions raised, we feel that neither the BSA nor CB7 should even schedule meetings or hearings until the Congregation provides all relevant information.
Update:
Redlined Version of Revised Application to Initial Application showing location of responses to BSA Objection Letter.
Shearith Israel filed new documents in support of its application for a variance on September 10, 2007, typically, two days before a major Jewish obervance - Rosh Hashonah. The document have been scanned and may be downloaded - see the right column.
SAVE TIME: DOWNLOAD All DOCS IN ONLY TWO FILES
All Drawings Sept. 2007 - 5MB
All Documents Sept. 2007 - 2MB
Community Board 7 has now "decided" to postpone the meetings on Shearith Israel to September. The fact is that Shearith Israel has yet to provide the revised application required by the BSA But the questions are "Why did Community Board 7 wait so long to do the obvious? Did Community Board 7 believe that one week was sufficient notice and time for the 'community' to review what is expected to be long and complicated revisions?" CB7 needs some cujones - scheduling meetings prior to the developer submitting its application material is being too accommodating to developers - at the expense of the community. Amazing, is is not? So what is really at work here - Shelly Friedman promised his client that he would get the BSA approval by year end. So, CB7 was helping out Shelly so that perhaps he could satisfy this promise, leaving open the possibility of BSA hearings in September. Well, that is not going to happen.
Community Board 7 has rescheduled the Shearith Israel Land Use committee meeting to July 18, 2007. Given that the BSA bounced the Congregation's application in all but name only, it is entirely unseemly for the Community Board to reschedule the meeting when fundamental components of the BSA application have been seen by no one. The Congregation flaunted many clear and unambiguous BSA requirements and there is no reason why the public's opportunity to review the proposal is being curtailed in order for the Community Board to accommodate the missteps of the Congregation.
Landmark West has sent the Community Board a strong letter requesting that the matter be dropped from the July 18 agenda. Landmark West also provided a succinct memorandum by planner Simon Bertrang, explaining the zoning issues raised by the application and by the BSA objections.
Today we filed with BSA 65 new objections to the Congregation's April 2, 2007 application for zoning variances. To obtain a full understanding of the BSA and Community Objections, we have prepared a version of the April 2, 2007 application into which is interpolated the BSA and Community objections. This makes the objections understandable.
Letter with short version of objections.
The BSA and Community objections in context.
Late this Monday afternoon, the agenda for Community Board 7 was updated to state that the agenda item for Shearith Israel is being postponed. The BSA basically is requiring a new filing from Shearith Israel.
They are now trying to put this on for July 18, but wait and see.
Late Friday Afternoon, the BSA issued objections to the Shearith Israel BSA Application, basically requiring a resubmission of its application. Given the number of changes requested by BSA, one would guess that the matter will not be on the June 20, 2007 hearing.
We will have comments. The BSA staff was able to point out in a methodical way many attempts of the Congregation to confuse and obfuscate.
We think the BSA has adopted the proper approach: it will not hold it first hearing until after the application is coherent, has a colorable theory, meet jurisdictional requirement, and complies with the significant rules as to such applications.
We will have an analysis posted later.
June 7, 2007
Community Board 7 Sets Meeting
As is now routine in all matters Congregation Shearith Israel, we have another last minute hearing announcement, so as to accommodate the schedule of the Congregation's attorneys. CB7 today just amended its agenda for the June 20, 2007 meeting of the Land Use Subcommittee. The agenda was amended to include the consideration of the Congregation Shearith Israel application to the Board of Standards and Appeals for a variance from zoning laws, which otherwise would limit the height and other aspects of its proposed condominium/community building.
The meeting will be at 7:00 PM at the Congregation Rodoph Sholom, 7 West 83rd Street. Speakers are limited to two minutes. There are many topics to cover. Please e-mail me at sugarman@sugarlaw.com if you wish to know what topics are not yet covered by other community speakers. See below re 18 West 70th Street residents.
The Congregation's application to the BSA was filed on Passover eve, April 2, 2007 and then served by the Synagogue on CB7 on the first day of Passover. With complaints about this lack of courtesy as well as the many problems in the application, the CB7 meeting was delayed. Ordinarily, the BSA rules would have required the BSA meeting prior to June 2, 2007.
Subsequent steps in the process will include the full Board Meeting of CB7 (July 10?) and then the BSA hearing. The BSA must first determine that the application is substantially complete; but, that finding by the BSA has not been made. Attorneys for the community and Landmarks West have been busy pointing out these deficiencies and attempting to assure an open and transparent process. We have also requested recusal of two BSA commissioners for an improper ex parte meeting with CSI. BSA is stonewalling FOIL requests. A full correspondence file is here.
The application statement itself (see right column for list of documents) is extraordinary. After a lengthy discourse about the history and traditions of the Congregation and Jewish Law and customs, the Congregation concludes:
All of the requests for relief presented in this Application are directed toward alleviating the hardships caused to that mission by the literal application of the cited provisions of the Zoning Resolution.
"That mission" is of course means the tradition etc. of the Congregation. " The "hardship" referred to is the hardship that the Congregation cannot use non-zoning compliant condominiums to provide a free community house to the Congregation. What this sentence really says is "We deserve an exemption from zoning law because we are who we are." The concept is that the Trustees are holding up a grand tradition. But are the Trustees holding up tradition.. Read more...
Residents at 18 West 70th Street who will have their windows, light, and air blocked if the variance is granted should know that this is there best chance to block the variance based upon finding (c) - for the variance will certain impair the use of your apartments. There is no reason why your apartments should be devalued and impaired so that members of the Congregation do not need to finance their own community center.
April 26, 2007
Three weeks have elapsed since the Congregation filed its application on Passover eve, but, still, no news as to the Community Board 7 hearings. The word is that counsel for the Congregation, after working on the application for over a year, need more time!!
In the meantime, serious questions have been raised as to the adequacy of the Congregation's application including an interesting question - the DOB Objection Letter filed by the Congregation is dated in 2005, even before the LPC turned down the penultimate proposal -- Magic!
April 10, 2007
Stop West 70th Request Recusal of BSA Commissioners
It seems that in New York City, in this pro-development administration, that anything goes, and, among other things, basic administrative law is being tossed over the side. The ex parte meeting between two of the BSA Commissioners is just improper. On April 10, 2007, we delivered a letter to the BSA asking that the Chair and Vice Chair recuse themselves.
April 2, 2007
Shearith Israel Files for Zoning Variance on Passover Eve
Demonstrating its respect for Passover, late on the afternoon of April 2, 2007, just as many were preparing for the Pesach Seder, Congregation Shearith Israel filed its application for zoning variances with the Boards of Standards and Appeals. The purpose of filing at this particularly time evidently was to jam Community Board 7 into having the hearing on the matter held at its May 1, 2007 meeting, since the CB7 meeting for June would be more than 60 days after the filing with BSA. Even worse, this maneuver jams the CB7 into holding the important Committee hearing even sooner.
CB7 needs to immediately notice the Committee hearings. Sheldon Fine, the chair of CB7, was not available for comment on April 3 and 4 due to the observance of Passover.
Some question whether the service of these documents on Passover was a violation of Halakhic Law.
The documents filed are listed at the top of the column to the left.
March 23, 2006
New Group to Reform Landmarks Preservation Commission To Hold Press Conference
On Monday, March 26, 2007 on the steps of City Hall, the Citizens Emergency Committee to Preserve Preservation (CECPP) will hold a press conference on the steps of City Hall concerning the qualifications of LCP commissioners. The CECPP has been putting pressure on the Bloomberg administration to restore the LPC to a functioning administrative agency.
PW70 suggest, in addition to the reforms suggested by CECPP, the following areas for reform:
January 12, 2007:
[Note: On January 3, 2007 in a telephone conversation, the CSI attorneys absolutely said they had received an "objection letter" - but, in a letter of January 12, 2007, the attorneys now say that this comment was a "misunderstanding" - hmmm.]
Congregation Shearith Israel (CSI) is moving forward with its project. On November 8, 2006, CSI held an ex parte preliminary application meeting with Commissioners of the Board of Standards of Appeals and has filed plans with the Department of Buildings. The DOB apparently has provided objections to the project as to zoning, and CSI must now apply to the BSA for a variance.
However, community groups remain in the dark, as both the BSA and DBA are stonewalling neighborhood and landmark groups. Both Landmark West and community members have filed Freedom of Information Law requests with DOB and BSA. BSA refuses to turn over notes of the ex parte BSA meeting on the specious ground of attorney client privilege.
DOB has refused to provide access on security concerns having decided to designated certain religious sites as "sensitive" and after 9/11 having decided to release information only if approved by the building owner - and - CSI has refuse to authorize release.. So, for now, material that will be completely public when CSI applies to the BSA and goes through the CB7 process, is now considered to pose security risks.
See the letters concerning FOIL requests to the DOB and BSA and the ex parte meetings.
Tom Wolfe in a New York Times article "The (Naked) City and the Undead" launched a powerful missive criticizing the New York City development process and in particular LPC and its Chairman Robert Tierney. This provoked a flurry of letter to the editor by Tierney and friends defending LPC, Tierney and the process. But the little game now being played by BSA, DOB, and CSI is illustrative of the City's practice to treat interested members of the public and groups as a nuisance, largely irrelevant to the back door decisions driven by powerful entities like CSI and its influential membership.
Status - as of September 1, 2006:
The Landmarks Preservation Commission approved the 9 story project on March 14, 2006 - lopping one of the two penthouses from the building proposal of August 15, 2005.
Even though the Congregation Shearith Israel in October 2005 represented to the Community Board 7 that the two penthouses were acceptable to the LPC, it appears that was not so.
This is the latest act in a saga that includes a 1983 proposal to build a 42-story tower, a 1995 proposal for a 33-story tower, and a 2003 proposal for a 15 story tower. The 2006 action by the LPC was a continuation of the proceeding initiated in 2002.
The next step for the Congregation is to attempt obtain the approval of the Board of Standards and Appeals (BSA). This is required because the proposed building does not conform with zoning requirement: it is too tall and is too deep in the lot. In addition, the penthouse does not conform with zoning law.
Almost all of the conforming space represents condominium apartments: this presents a huge problem to the Congregation.
In order to obtain a variance, the project must satisfy the five factors specified in Zoning Resolution 72-21.
Before the BSA may act, there must first be a hearing at Community Board 7 and its Land Use Committee (co-chairs: Richard Asche and Page Crowley).
Note how the Congregation's rendering above fades out the floors that exceed the height of 18 W. 70 - the second penthouse level was not approved by the LPC.
2005 Proposal (from imaginary perspective::
The Congregation Shearith Israel removed the facade to the first two townhouses in 1954 and demolished the third townhouse in 1970.
:
Many Documents and Correspondence to and from BSA<here>
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March 14, 2006 Drawings from the Congregation as "appproved" by LPC
April 5, 2006
Municipal Arts Society Zoning Variance report is available here. The 89 page report was prepared in March 2004 and was drafted by Christopher Rizzo, Esq. This is an excellent analysis of the issues involved in the variance request by the Congregation. .
[place cursor over photo below to see proposed building]
From Central Park West
[place cursor over photo to see proposed building]
From Mid-Block Facing East
The images above were prepared by Protect West 70 Street.. This is what was NOT prepared by the Congregation for LPC. c.f. Mid-Block Perspective.
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What about the light on this street? Where are the solar studies? Shown above in the winter sunlight is the brownstone just opposite the Congregation's vacant lot. The new building would shut out this sunlight.
Recently restored, under the Congregation's theory, the opposite brownstone's location would be suitable for a tower above the brownstone.
PETER JENNINGS
Some thoughts. I did not know Peter Jennings personally and I do miss him on the air. But the turn of events now shows us how important he was to defeating the last attempt by the Synagogue. For some reason, I think he might want us to not forget his July 1, 2003 letter, which was then reported in the New York Times and The New York Observer. Has anything changed? Anyway, Thank You Mr. Jennings
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