Community WINS in Supreme Court of State of NY! — Developer vows to Appeal the Decision
Late on Friday, September 25, the Honorable Judge Arthur F. Engoron of the Supreme Court of the State of New York issued his findings regarding 36 (aka 50) West 66th Street, siding with Community interests.
The nine-page decision, available HERE reiterates many arguments made by LW! in its Sept. 2018 Department of Buildings Challenge, its Dec. 2018 Board of Standards and Appeals (BSA) appeal and the parallel appeals filed by both LW! and the City Club of New York (CCNY) in May 2019.
When CCNY’s appeal was denied at the city level, they were able to proceed to a state court of law and an actual judge with an Article 78 Appeal which they won!
When LW!’s appeal continued at the BSA, it resulted in a 2-2 tie in January 2020.  Legally LW! must wait to proceed with its Article 78 Appeal until the BSA issues their official written decision on the tie. EIGHT MONTHS LATER the BSA has not prepared this mandated report. Justice Delayed = Justice Denied.  Elected officials have repeatedly requested the BSA do their job and issue their decision so LW! may proceed with its Article 78–essentially the only way the community can get its arguments out of the DOB/BSA cycle of protection and into a real court.
Meanwhile, developer Extell has promised to appeal the State Supreme Court’s decision.
What does this all mean? 
It means the community should cheer a win for the public!  Calling out this obvious mis-use of the Zoning Law, the Court sided with common sense, muting the modus operandi of two city agencies who are supposed to defend the public interest, but too often cater to developer goals.  
It also means there is more road ahead.  An appeal will likely: 
a) further delay the written decision already 8 months overdue from the BSA, further obstructing LW’s and the community’s right to proceed with an Article 78;
b) result in at least 6-9 months of additional court time for the developer’s pending appeal;
c) further impede the developer’s ability to raise capital in an uncertain real estate market.  
So why continue?  
Because we are finally gaining ground by relying on the intent of the zoning laws.  With truth being challenged seemingly daily, we can take solace that sometimes the right decisions are made.
Because precedent matters. Because light & air, public safety, the environment, and the existing community do matter.
Because this building has not yet been built there is an opportunity to right this wrong. Because each Article 78 Appeal has different arguments–meaning more ammunition to fight with. 
And, unfortunately because similar decisions, such as the case of Two Bridges downtown, have been overturned on further appeals by developers. We cannot stop now!  We must keep the pressure on and shut down this abuse of Zoning Loopholes!
Key takeaways from the court’s decision:
According to the Developer and the City, the original Proposal had four mechanical floors…totaling 198 feet. 
(nearly 20 stories of empty space inside!)
There is no conceivable mechanical need for anything approaching this many floors, this much height, and this much empty space, and the Developer does not claim otherwise 
Huge mechanical voids make a mockery of every facet of height regulation 
The New York City Department of Buildings and the New York City Board of Standards and Appeals did act arbitrarily and capriciously in giving this building a permit…
…as we’ve been saying! 
LW! has been tracking the phenomenon of SUPERTALLS since 2015. To date, we have helped secure wins in process by forcing City Planning to make changes in the way it regulates mechanical voids — exactly the abuses flaunted in the case of 50 West 66th Street.
This building’s permits were the last issued that allowed the flagrant abuse of the mechanical void deduction before the responsive Zoning text amendment closed that loophole. The Court has just declared that an “arbitrary and capricious” disregard for the intent of the Zoning Law. Yet the developer wants to push this building 198 extra feet into the sky based on empty voids. Not on our watch. Help us push on and push back!
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