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Land Use, Housing & Zoning

35-41 West 23rd Street, 39-41 West 23rd Street, 20-22 West 24th Street

WHEREAS, The 5-story building, constructed in 1880 at 35 West 23rd Street received Variance #40-80-BZ from the Board of Standards & Appeals (BSA) in 1980 which allowed the then owners, Gary & Sara Spiegler, to convert the building from commercial, retail & office use to ground-floor retail & residential use, and stipulated that the use was for the lot’s and building’s square footage (metes and bounds) that was outlined in the plans submitted to BSA at that time; and

WHEREAS, 35 West 23rd Street is currently Lot 7501 (the collective of condominium lots 1001-1005) and was Lot 23 in 1980, 39-41 West 23rd Street is Lot 20, and 20-22 West 24th Street is Lot 60; and

WHEREAS, Currently, as they were in 1980, all three lots are located in an M1-6 zoning area and in the Ladies’ Mile Historic District, which was established in 1989 by the Landmarks Preservation Commission (LPC); and

WHEREAS, In 1982, the Department of Buildings (DOB) issued a Certificate of Occupancy (CO) for the 5-story retail & residential building at 35 West 23rd Street that noted the building was subject to variance #40-80-BZ; and

WHEREAS, In 1992, a previous owner of condominium Lot 1005 (5th floor apartment) expanded the condominium by constructing a 341 square foot penthouse with approvals from DOB and Landmarks Preservation Commission (LPC), but omitted to seek a BSA amendment; and

WHEREAS, In 1998 the current owner of Lot 1005 (5th floor apartment) bought the condominium and was informed that an updated CO from DOB was needed for the penthouse; and

WHEREAS, In 2000, the DOB issued a new CO for the 5-story building which included the 341 square foot penthouse and this is the current CO for the building, and

WHEREAS, The updated CO issued by DOB does NOT indicate that the building is subject to a BSA variance; and

WHEREAS, The owners of condominiums 1001-1005 should have sought a BSA amendment to reflect the change in the building’s metes and bounds (square footage); and

WHEREAS, The applicants’ current attorneys allege that because the CO lacks any indication of a variance, that this omission created a series of reoccurring errors by city employees and the applicants’ previous representation because they did not notify the applicants that BSA amendments were needed; and

WHEREAS, In 2005, the previous owners of Lot 20 and the current owners of the condos at Lot 7501 and entered into a Zoning Lot Development and Easement Agreement and Declaration of Zoning Lot Restrictions which conveyed 24,000 square feet of Transferable Development Rights (TDRs) from Lot 7501 to Lot 20 and merged the two lots into one zoning lot, and created a change in the metes and bounds of the zoning lot; and

WHEREAS, Lot 7501 retained 500 square feet of TDRs for the purpose of further expanding the penthouse at condominium 1005 (5th floor apartment); and

WHEREAS, The conveyance of TDRs through the Lot merger mechanism from a lot with a use variance requires the owners to seek an amendment to the variance, to ensure that the variance process is not misused for an economic windfall, as happened in the “Bella Vista” court case in 1997, where NYS court ruled that an owner who received a variance from BSA for use change and who represented in their economic analysis that available TDR had no value cannot and should not be allowed to transfer said TDR; and

WHEREAS, In 2007, the previous owner of Lot 20 obtained a Special Permit for transfer of development rights pursuant to ZR Section 74-711 to facilitate the development of a 21 story residential building on Lots 20 and 60; and

WHEREAS, In 2011, Anbau Enterprises, Inc., who remains the current owner, bought Lot 20 with the TDRs from Lot 7501 and did not seek an amendment to BSA variance to correct previous omissions; and

WHEREAS, In 2012, Anbau Enterprises bought Lot 60; and

WHEREAS, In 2013, Anbau Enterprises obtained a Certificate of Appropriateness from LPC for the design of a 24-story building proposed for Lots 20 & 60; and

WHEREAS, In 2014, the owner of condominium 1005 constructed a 413 square foot addition in addition to the 341 square foot penthouse built in 1992, with DOB permits and LPC Certificate of No Effect, and again a BSA amendment was not sought; and

WHEREAS, In 2015, the City Planning Commission and City Council approved the 24-story residential building with ground-floor retail and private below-ground parking garage on Lots 20 and 60; and

WHEREAS, In 2016, Anbau Enterprises merged Lot 60 into one zoning lot with Lots 20 and 7501; and

WHEREAS, There was 25 years between issuance of the variance by BSA and the conveyance of the TDRs; and

WHEREAS, The 1980 owners who obtained the variance were not a part of ownership of Lots 20 or 60 during the issuance of the variance, nor were they a part of ownership of Lots 20, 60, or 1001 – 1005 (7501) during the conveyance of TDRs; and

WHEREAS, Community Board Five could not find any evidence of misuse or intent to undermine the BSA variance process and could not find any of the objections that was found in the “Bella Vista” precedent in this specific instance of conveyance of TDRs from Lot 7501 to Lot 20, especially given that the DOB failed to record the issuance of the variance on the updated Certificate of Occupancy and failed to alert current parties to the necessity of a variance amendment; and

WHEREAS, The applicants sought in a timely manner and were granted approvals from all appropriate city agencies and institutions; therefore be it

RESOLVED, Community Board Five recommends approval by the Board of Standards & Appeals for an amendment to the metes and bounds of the variance #40-80-BZ that allows use change for lot 7501 while permitting transfer of development rights from Lot 7501 to Lots 20 and 60, and permitting the construction of the 741 square foot rooftop penthouse for Lot 1005, specifically because DOB failed to properly record the variance.

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