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Land Use, Housing & Zoning

BSA 236-09BZ, 140-144 West 28th Street, application for a variance to permit the development of a mixed-use (residential/commercial) building within an M1-6 (high density) zoning district

WHEREAS, This is an application for a variance from the Board of Standards and Appeals (the "BSA") to permit the development of a mixed-use (residential/commercial) building at 140-144 West 28th Street (the "New Building"), located between Sixth and Seventh Avenues; and

WHEREAS, The site is currently occupied by a parking lot, and without a variance the developer may not build a mixed use residential/commercial building, but is permitted to build a hotel or an office building; and

WHEREAS, The developer proposes to construct a 29-story building, containing 196 residential units (a portion of which will be developed as affordable housing units under the 80-20 financing program); and

WHEREAS, The New Building will consist of 179,498 sf of residential space and have 7,501 sf of commercial space, and the developer will set aside approximately 12,000 sf (2,050 sf on the ground floor; 2,483 sf on the second floor; and 7,493 sf in the basement, which the BSA does not consider part of the zoned square footage) for retail/commercial flower usage; and

WHEREAS, The developer also owns the seven story residential building (the "Existing Building") adjacent to the development site at 146-148 West 28th Street, which is currently leased to two flower related tenants and multiple loft residents and will be upgraded and maintained; and

WHEREAS, In order to receive a variance, the BSA must make the follow findings:

(i)                  a unique physical condition inherent at the location;

(ii)                the developer cannot receive a reasonable return by following the existing zoning;

(iii)               the variance, if granted, will not alter the essential character of the neighborhood;

(iv)              the hardship is not self created; and 

(v)                the variance is the minimum necessary to afford relief to the application; and


WHEREAS, The developer has demonstrated that the site has unique physical conditions which create a economic hardship, such as soft soil, an underwater stream and deep bedrock (47 feet below ground level), which will increase construction costs by $12 million; and

WHEREAS, The developer presented a thorough economic analysis performed in accordance with the BSA guidelines which show that there would be negative returns from office or hotel use and reasonable returns for a residential building; and

WHEREAS, The New Building will not alter the character of the neighborhood, which includes several new high-rise hotel buildings, loft residential buildings, commercial and retail spaces on 28th street and in the surrounding blocks; and

WHEREAS, The New Building will be 50,000 sf smaller than the permitted zoned floor area; and

WHEREAS, 28th Street is part of New York's flower district, and the Community Board strongly supports the continued existence of the flower industry and flower district; and

WHEREAS, The developer has made concessions in order to respond to the community concerns, and has agreed to include in the variance application that the developer and future building owner(s) and/or successors shall: 

  1. enter into leases with flower tenants only in the retail/commercial space in the existing building and in the allotted space in the new building as follows: 2,050 sf on the ground floor; 2,483 sf on the second floor; and 7,493 sf in the basement;
  2. allow current residential tenants of the Existing Building to have access to any new amenities included in the New Building;
  3. establish a point person for all Community Board and other neighborhood questions and comments to contact during construction phase (this person will be appointed at the start of construction);
  4. meet regularly before and during construction with a small committee made up of a Community Board representative, a flower association representative, representatives of relevant City agencies and community members to alleviate (as much as possible) the burden of construction on the surrounding community;

WHEREAS, Community Board Five urges the BSA to include the following restrictions in the variance, to which the developer has agreed:

  1. New leases and subsequent renewals for the retail/commercial space in the New Building and the Existing building shall be subject to approval for allowable flower use by a committee comprised of the flower association and a designated Community Board 5 representative;
  2. The developer shall submit all new leases of the existing building and space outlined in (i) above to the committee for review and approval. Approval shall not be unreasonably withheld and will only evaluate whether the tenant is conducting business as an allowable commercial use in the retail or wholesale flower business; and
  3. Landlord can petition the BSA for relief if market conditions have materially changed such that the requirement for a flower tenant is no longer practical; therefore be it


RESOLVED, That Community Board Five recommends approval of BSA 236-09BZ, 140-144 West 28th Street, application to permit the development of a mixed-use (residential/commercial) building within an M1-6 (high density) zoning district.

The above resolution passed by a vote of 36 in favor, 0 opposed, 1 abstaining.

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