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Land Use, Housing & Zoning

26-30 West 39th Street, application to BSA requesting a six-month renewal of a permit to complete construction of the foundation of a hotel

WHEREAS, 26 West 39th LLC (the “Applicant”) is requesting the Board of Standards and Appeals (the “BSA”) to renew a building permit (the “Existing Permit”), pursuant to Zoning Resolution (“ZR”) Section 11-331, for a 27-story hotel (the “Hotel”) at 26-30 West 39th Street in a M1-6 zoning district; and

WHEREAS, The Existing Permit was issued prior to a December 20, 2018 amendment to the ZR, which provided that a hotel in a M-1 zoning district would no longer be permitted as of right, but only if a special permit is approved by the City Planning Commission and the City Council, and, accordingly, the Existing Permit expired; and

WHEREAS, The Existing Permit for the Hotel is for 299 rooms and five food and beverage venues, comprising 97,414.17 square feet; and

WHEREAS, A permit for the Hotel for excavation and foundation work was issued in July, 2018, and the Department of Buildings issued the Existing Permit on October 31, 2018; and

WHEREAS, In accordance with Section 11-331 of the ZR, Applicant is requesting the BSA approve a renewal of the Existing Permit by issuing a six-month extension (the “Renewed Permit”) so that the foundation for the Hotel can be completed; and

WHEREAS, Pursuant to Section 11-331 of the ZR the requirements for the Renewed Permit are:

(1) the Existing Permit was lawfully issued authorizing a minor development
(construction of a single building which is non-conforming under the Amendment),
(2) the application for the Renewed Permit was made to the BSA within 30 days of the
lapse of the Existing Permit,
(3) excavation of the site for the Hotel has been 100% completed, and prior to the
Amendment’s adoption, substantial progress made on foundations; and

WHEREAS, The Existing Permit was properly issued for a minor development, and the BSA
application for the Renewed Permit was timely filed; and

WHEREAS, The construction for the foundation incurred significant problems with the subgrade
conditions, which were not suitable for the use of pile construction, and it was determined that a
rat slab under a mat slab was needed, requiring additional preparation work, consisting of
extensive waterproofing, underpinning, and related work which required additional time; and

WHEREAS, Applicant testified that, as of the date of the amendment, the completed foundation
work comprised 18 of 18 soldier piles at the street line on the 39th Street side, 4 of 4 soldier piles
at the street line of the 38th Street side; 48 of 48 underpins; 28 of 28 street tiebacks; 10 of 10 soil
tiebacks; 100% of lagging at the street line; installation of walers and corner braces for street and
sidewalk reinforcement; and 80% of the rat slab was poured; and

WHEREAS, Applicant has represented that completion of the foundation requires the installation
of steel reinforcement for the mat slab over a period of four weeks, with a concrete pour
occurring in 12 hours and then a four week period to complete the perimeter walls, or a total of
approximately eight weeks; and

WHEREAS, Applicant represented that the completed foundation work currently amounts to
approximately 68% of the total cost of the foundation and approximately 67% of the total time
needed to complete construction; and

WHEREAS, While there is no definition of “substantial progress made on foundations” in
Section 11-331 of the ZR, the materials presented and the representations of the Applicant
regarding the percentages of the cost and time needed to complete the foundation arguably show
that as of the date of the amendment there had been “some progress made on foundations” in
accordance with the requirements of Section 11-331 of the ZR for the Hotel; and

WHEREAS, According to the testimony of the Applicant and several residents of the immediate
area of the site, it appears that as of the date of the amendment, the excavation of the site had not
been completed, and, in fact, appears to be continuing through the date of this resolution (March
6, 2019); and

WHEREAS, Five residents attended the LUHZ committee meeting and testified that applicant’s
construction crews have been working after hours including at night and on weekends, possibly
to rush the completion of excavation and/or create substantial progress on the foundation, at the
expense of neighbor’s quality of life (testimonies substantiated by 311 complaints); and

WHEREAS, Since excavation of the site of the Hotel had not been completed as of the date of the amendment, Applicant is not entitled to rely on Section 11-311 of the ZR to obtain the renewed permit; therefore be it

RESOLVED, Community Board Five recommends denial of 26 West 39th LLC’s request for a Renewed Permit, pursuant to Section 11-331 of the ZR, for the hotel located at 26-30 West 39th Street, unless Applicant can provide the BSA with convincing evidence that all excavation for the Hotel site was completed as of the date of the amendment.

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