Work on the apartment tower interrupted

36 west 66th street. Image credit: Google Maps.

The developer has received permission to build a record-breaking skyscraper on Manhattan’s West Side. In November 2017, Extell Development Company unveiled plans to build a huge residential tower for luxury condominiums at 36 West 66th Street. The building, if completed at 775 feet tall, would be the tallest on Manhattan’s Upper West Side. Extell applied for and received a permit from the Buildings Department after making slight structural design changes to address, primarily, fire safety concerns.

On April 24, 2019, the City Club of New York, a nonprofit rights group, filed a lawsuit to stop construction, alleging the design violated several zoning rules. The City Club argued that Extell exceeded the height limits by employing two illegal ploys.

The City Club initially accused Extell of illegally exploiting the fact that mechanical floors used to house elevator machines, plumbing, heating and air conditioning are not included in the height calculation under the zoning rules. Extell’s design called for four consecutive mechanical floors under the tower portion of the building, artificially increasing the overall height by about 200 feet.

The City Club accused Extell, second, of illegally taking advantage of the divided zoning site that straddled two differently zoned districts. Extell had selectively enforced the zoning rules for each part of the lot, a tactic which the City Club said was unacceptable for a single structure.

Supreme Court Justice Arthur F. Engoron ruled in favor of the City Club, arguing that the Standards and Appeals Board and the Buildings Department had erred in granting a building permit to Extell. Judge Engoron canceled the building permit and ordered work to continue. The construction of the project had already stopped at the foundation stage.

Judge Engoron berated Extell for brazenly attempting to bend the height rules. In 1993, the City amended the zoning resolution to fight against the proliferation of so-called “tower-on-plinth” skyscrapers, of which the Extell development was a prototype example. Justice Engoron stressed that these zoning resolutions should be read in light of their sole purpose: to limit the height of such buildings.

Judge Engoron ruled that each part of a lot, even if it is in separate zoning districts, must be independently assessed and the structure must comply with all district zoning rules applicable to that part. Developers cannot choose from the constraints of each district and apply the most liberal rules to the more restrictive zoned part of the lot, as Extell did.

Judge Engoron pointed out that the building would unmistakably be in violation if the entire lot were zoned according to the rules of either district, suggesting that it would be absurd to allow the construction of the tower simply because that it is in two different neighborhoods.

Second, Engoron J. found that Extell inserted mechanical floors in a blatant effort to increase apartment elevation in order to command the price buyers will pay for the resulting best views. There was no conceivable practical need for so many mechanical floors of very unusual height and placement, a proposition that even Extell did not dispute. Judge Engoron found that most of the space dedicated to mechanical floors would remain empty and serve no other function than increasing the height of the building beyond legal limits. These unnecessarily large and numerous spaces must be factored into the height calculations, and in doing so, place this building above the maximum allowable height.

City Club of NY v NYC Bd. Of Standards & Appeals, INDEX N ° 161071/2019 (NY Sup. Ct. 2020).

By: Sean scheinfeld (Sean is a former CityLaw intern and a graduate of New York Law School, class of 2021.)

Margie D. Carlisle