ZONING FOR SALE
Congregation Shearith Israel Plan to Build Luxury Condos on Its Landmark Site

On August 26, 2008, the NYC Board of Standards and Appeals approved 7 zoning variances allowing Congregation Shearith Israel to construct 5 floors of luxury condominiums on top of a brand-new, 4-story community house on the midblock of West 70th Street, located in the Upper West Side/Central Park West Historic District and the brownstone-scale R8-B contextual zoning district.

The new building, located immediately adjacent to CSI’s Classical-style Individual Landmark (the Spanish & Portuguese Synagogue on Central Park West), would be the tallest mid-block structure ever allowed to be built since the creation of the contextual zoning district (1984) and Upper West Side/Central Park West Historic District (1990), both intended to protect our neighborhood from out-of-scale development.

WHAT THIS MEANS FOR ALL 5 BOROUGHS
See recent Jewish Week article

CSI planned 9-story, 115’-tall building, more than twice as tall as the brownstones that define this and most other mid-blocks on the Upper West Side – low-rise, human-scale blocks that are specifically called out for protection in both the 1984 Contextual Zoning Report and the 1990 Historic District Report (see below, "An Important Site, A Dangerous Precedent").

Like many low-rise cultural and religious institutions lining Central Park West (for example the New-York Historical Society at 76th Street, the Society for Ethical Culture at 64th Street, and the former First Church of Christ, Scientist at 96th Street), CSI has long sought to exploit its real estate through the development of a luxury tower that would compromise the character of this Landmark, the surrounding Historic District and the rules governing sound planning for the Upper West Side. Now CSI argues that, instead of building over the Landmark synagogue, it wants to transfer air rights to construct a large, mixed-use building right next to the Landmark, on one of the most pristine, brownstone blocks in the Historic District.

Original application submitted to the Board of Standards and Appeals (BSA), April 2007

Click here to see the rest of the April 2007 drawings

Click here to view more images of Congregation Shearith Israel (a.k.a. Spanish & Portuguese Synagogue) and to read its designation report

Planning for the Future
LW! is working with architecture and planning firm Weisz+Yoes to investigate the future of development and its impact on the Central Park West Skyline
Learn more

CSI claims that the purpose of the new building is to address “severe circulation limitations,” “the physical obsolescence and the ill-configured floorplans” of its current, 1950s community house and 1897 synagogue. Yet, CSI’s application demonstrates that it could construct an up-to-date community house to meet its programmatic needs without breaching the zoning laws. Indeed, CSI basically solves the claimed issues of “circulation” and “obsolescence” on just part of the first floor of the community house. But, instead of paying for the new facility out of its own pocket, CSI wants to build 4 floors of market-rate condos as a “partial source of funding” that would essentially shift the cost of new construction to the community.

BSA accepted CSI's argument that it faces a “unique hardship.” But, in fact, nothing distinguishes this site from hundreds of other sites in the Historic District. Approval of CSI’s application for special exemptions from the laws protecting our neighborhood from overdevelopment would trigger a “domino effect” along Central Park West and throughout the city. Nonprofit and for-profit developers in each of the 5 boroughs, eager to exploit their own sites, already recognize CSI’s proposed building as a precedent opening the door for future development.

Primary Facts
An Important Site, A Dangerous Precedent
Board of Standards and Appeals v. Landmarks Preservation Commission
Misrepresentations & Procedural Problems
No Evidence of “Unique Hardship”
Conclusion

List of Supporters and Past Testimony

Shearith Israel and West 70th Street Press
"On the Upper West Side, A Building Battle Continues," by Tamar Snyder. Jewish Week, September 10, 2007
"A Classical Gem Off Central Park West," by Francis Morrone. The New York Sun, Sep 20, 2007
Showdown Between Upper West Side Synagogue, Preservationists Postponed," by Mark Wellborn. The New York Observer, Jun 19, 2007
"Upper West Side Synagogue, Preservationists Square Off Again," by Mark Wellborn. The New York Observer, Jun 12, 2007
"A Block Full of Late-19th-Century Row Houses," by Christopher Gray. The New York Times, Feb 16, 2003
"Abroad in New York," by Francis Morrone. The New York Sun, Dec 1, 2003

An Important Site, A Dangerous Precedent
CSI is an Individual Landmark, also known as the Spanish & Portuguese Synagogue, designed by architects Brunner & Tryon and built in 1897, one of the first New York City Landmarks to be designated after the creation of the Landmarks Preservation Commission in 1965. 

This important site has multiple layers of protection:  it is part of the Upper West Side/Central Park West Historic District, designated in 1990, and it is covered by contextual zoning, created in 1984.  The Zoning Report states: 

The typical midblock building is the 3 to 6-story, 55 to 60 foot high 'brownstone'…The consistency with which these building types north of 68th Street repeat themselves is the key to the strength and clarity of the image of the West Side.  Over 85% of the structures in the midblocks conform to the 'midblock' type…There is warranted concern that new development will weaken the quality and 'intactness' of the existing context by introducing buildings that are out-of-place.

The Historic District Designation Report reinforces this characterization:

On most of the side streets of the district, scattered later apartment buildings have interrupted the original rows, but in general the surviving rowhouses present a strong coherency and are a major element in creating a special sense of place particular to this district on Manhattan's Upper West Side.

Seventy-three percent (73%) of the new, 105’-tall building would be located in the R8B zoning district, which caps overall building height at 75’ with a streetwall of 60’.  In the 1980s, Community Board 7 (CB7) fought for this zoning to protect traditional brownstone mid-blocks and to reduce the depth of the tall-building Central Park West zone (from 150’ to 100’ – it was ultimately set at 125’) so that sites like this one (about 100’ to 150’ west of the avenue) would remain low-rise.

So, while CSI’s site is incredibly important, it is not unique.  Approval of these variances would set a far-reaching precedent that would extend throughout this Historic District and beyond.  Maps show the number of other low-rise buildings in the Historic District, many of them owned and/or occupied by nonprofits, that could become development sites if variances were granted to CSI.  Certainly, CSI’s Landmark status must not be interpreted as a basis for “unique hardship” – such a decision would sound the death knell for landmark designation in New York City. 

Board of Standards and Appeals v. Landmarks Preservation Commission
CSI received approval for 7 separate zoning variances from the BSA.  The BSA is an adjudicatory body that considers whether to grant special permission for development that, due to some kind of “unique hardship,” does not comply with zoning.

The BSA adheres to an entirely different set of standards than the Landmarks Preservation Commission (LPC).  BSA standards pertain to “unique hardship,” while LPC standards pertain to historical and architectural “appropriateness.”  It should be noted that, while the LPC approved design of the new building (although not “unanimously” as CSI claims – Landmarks Commissioner Roberta Brandes Gratz voted against the application at the LPC’s March 14, 2006, public meeting), it had previously denied CSI’s application for a “74-711” special permit, which is only granted if the applicant can prove that the project would serve a legitimate “preservation purpose.”

Because the proposed new building violates the zoning resolution and failed to gain LPC approval for special permits under “74-711”, CSI appealed to BSA for zoning variances.  The BSA standards relate to 5 specific findings, each of which must be made for each variance:

Finding (a):  “…there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the Resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located…”

Finding (b):  “…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…”

Finding (c):  “…the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare…”

Finding (d):  “…the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title; however where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship…”

Finding (e):  “…within the intent and purposes of this Resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.”

The community's response to CSI's application is summarized in a series of briefs formally submitted to the BSA in 2007-2008 (see Key Documents).

Misrepresentations & Procedural Problems
CSI filed its application with BSA on the eve of Passover, April 2, 2007, over one year after receiving approval from the LPC on March 14, 2006.  Meanwhile, CSI’s attorneys and consultants met privately with BSA commissioners and staff, a clear violation of prohibitions against ex parte meetings in quasi-judicial proceedings such as those pertaining to zoning variances.  Like any judge engaged in “ex parte” communications with parties in a lawsuit, the BSA commissioners who participated in meetings with the applicant should recuse themselves. 

The community has been stymied in efforts to gain access to public documents pertaining to CSI’s application.  In April 2007, LANDMARK WEST! (LW!) filed a lawsuit against the Department of Buildings (DOB) for failure to comply with the Freedom of Information Law (FOIL).  Since November 2006, DOB has denied access to CSI files, citing the “FOIL Refusal Rule,” which was apparently adopted (illegally) after September 11, 2001, to limit public access to DOB files related to certain properties labeled as “sensitive” without the written consent of the property owner. 

CSI’s April 2, 2007, submission to BSA included an Objections Sheet from DOB that was issued on October 28, 2005, and stamped “Denied” by DOB on March 27, 2007.  But, the October 2005 DOB Objection Sheet was for a materially different building than the one submitted to BSA in April 2007 (a 113.7’-tall building versus a 105.8’-tall building, with different setbacks).  The October 2005 Objection Sheet is far older the 30-day limit prescribed by BSA.

In addition, more than one year after its original April 2, 2007 filing, CSI's application was substantially incomplete. In a brief filed with the BSA on June 10, 2008, LW! described how CSI had repeatedly ignored the Board’s questions, comments and requests for information
concerning key issues.

No Evidence of “Unique Hardship”
In recent cases, BSA has held nonprofit religious institutions to a high standard for demonstrating a “unique hardship.”  For example, in a May 2006 decision, BSA explained its rationale for not allowing Congregation Somiou, a small synagogue in Brooklyn, to build a 5-story synagogue and yeshiva with 8 “Use Group 2” (standard residential) apartments:

…the Board expressed concern about this proposal, noting that there was no justification for waivers such as FAR and street wall height that arose solely because the application included market rate UG 2 residences… (72-05-BZ)

CSI, one of the largest and wealthiest congregations in the city, received BSA approval for similar variances to those denied to a much smaller, less resourceful congregation in Brooklyn that also sought to build apartments to subsidize its mission.

In another recent case concerning a Brooklyn religious girls school, Bnos Menachem, the BSA determined that a proposed catering facility “did not have a sufficient nexus to the religious nature of the school” and required the school to submit a feasibility study showing that a conforming residential use would not yield a reasonable return due to the site’s unique physical condition—i.e., the school was treated as a for-profit applicant, therefore not exempt from Finding 2.

CSI has also submitted a series of feasibility studies, at BSA’s request, a signal that BSA questions the “nexus” between CSI’s requested variances and its religious mission and indeed considers CSI’s proposed new building a commercial project.  Failing the “nexus” test, CSI seeks to pass the “reasonable return” test.  Yet, here it fails, too, because an as-of-right building—a 6-story building including a new community house and two apartments—would yield millions of dollars in profit.  In essence, CSI is asking the community to assume the burden of a harmful, precedent-setting, noncompliant, luxury condo development so that CSI can line its coffers...and get a new community house to boot.

To read licensed real-estate appraiser Martin B. Levine's devastating critiques of CSI's feasibility studies, go to Key Documents.

CSI's desire to develop this site is not driven by programmatic need, but rather economic greed.  And, as the Brooklyn cases suggest, approval of CSI’s application could have far-reaching impacts in the boroughs beyond Manhattan.  If BSA approves variances to allow one of the wealthiest institutions in the city to go into the development business, why should such variances be denied to small, struggling institutions in other parts of the city? 

Conclusion
A fair reading of the application of CSI, a nonprofit, religious institution in excellent financial standing, makes it clear that CSI can construct an as-of-right building, at little or no cost to itself, that will meet its programmatic needs and allow it to carry out its charitable, religious mission without doing long-term damage to the neighborhood and the planning process.  CSI should NOT be granted a series of harmful, precedent-setting variances to build a mixed-use, luxury condo building for the sole purpose of turning a profit.