PROTECT THE HISTORIC WEST SIDE www.ProtectWest70.org
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STOP THE WEST 70TH STREET TOWER

Dedicated to the preservation of New York City's historic landmarked West 70th Street and
protection from the incursion of an inappropriate condominum tower at the Shearith Israel Synagogue site.

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Updated Filings to January 9, 2017

NEWS ALERT!!!!!

Updated Filings at BSA to January 10, 2017

BSA Hearing January 10, 2017 - BSA Intends to Grant Application

 

Basic Facts - What are the issues?
The Five Zoning Findings -read more...
Who is www.protectwest70.org?
April 5, 2006
Municipal Arts Society Zoning Variance report is available here. The 89 page report was prepared in March 2004 and was drafted by Christopher Rizzo, Esq. This is an excellent analysis of the issues involved in the variance request by the Congregation. .

[place cursor over photo below to see proposed building]


From Central Park West

[place cursor over photo to see proposed building]

From Mid-Block Facing East

The images above were prepared by Protect West 70 Street.. This is what was NOT prepared by the Congregation for LPC. c.f. Mid-Block Perspective.

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What about the light on this street? Where are the solar studies? Shown above in the winter sunlight is the brownstone just opposite the Congregation's vacant lot. The new building would shut out this sunlight.

Recently restored, under the Congregation's theory, the opposite brownstone's location would be suitable for a tower above the brownstone.

PETER JENNINGS - The fix is in!!!

 

 

Ramaz Case

 

St, Vincent
Does a building towering over a Synagogue violate Jewish Traditionn? ..
Differences between the project as approved by CB7 in 2005 by and by LPC in 2006...read more ...
The Congregation's Community Building Tenant: The Beit Rabban School.
Rental Operations: Congregation rents school for $500,000 a year Parsonage at $19K a month

Publication Policy:

We will publish anyone's comments, whether the comments are for or against the proposal. Please send to sugarman@sugarlaw.com. Prototectwest70.org is not affiliated with Landmark West! or with the cooperative boards that are opposing this project. The views herein are entirely my own. So blame me! Alan Sugarman.

Yes, like the proverbial Energizer bunny, the Congregation Shearith Israel is back with yet another proposal for a condominium tower on its two sites next to its historic landmarked synagogue on West 70th Street in Manhattan. This is one of the oldest synagogues in North America, with a membership of similar lineage. Just before the landmark laws came into effect in the 70's, a brownstone was torn down on one of the sites leaving a vacant lot. We wonder: is the LPC now going to reward the destruction of a historic brownstone by permitting a building of the scale and bulk so that, among other things, the members of this Congregation can build a Catering Facility at no cost to the members?

 

Summary of Prior Filings:

2008-2012 Article 78 and Appeals - Petitions, Briefs, Exhibits

Plans Approved by BSA in 2008.

Updated Filings to January 10, 2017

BSA October 13, 2016 Executive Session from YouTube.

BSA October 14, 2016 Hearing From YouTube.

BSA January 9, 2017 Executive Session From YouTube.

BSA January 10, 2017 Hearing From YouTube.

Community Board 7 Opposes Application of Congregation Shearith Israel

CB7 Resolution of December 6, 2016.

Recent Filings

In June 2016, the Congregation filed a new application with BSA purporting to request a minor modification to its a 2008 variances, and then followed up with a series of further filings resulting in a well attended hearing oin October, 2016, which was adjourned to January, 2017, allowing the Congregation and opposing counsel to file statements.

CB7 then voted to reject the Congregation's new application.

The following responses were filed by counsel representing opponents.

Statement of Alan Sugarman dated December 7, 2016.

Download folder for Sugarman December 7, 2016 Exhibits. This folder contains the exhibits filed with BSA by Alan Sugarman on December 7, 2016 including drawings and important documents. The DOB Permit Files are omitted, because of size.

Supplemental Statement of Alan Sugarman dated December 19, 2016. Opp.Ex.42. Opp.Ex.43. These submissions were rejected by BSA, but will be refiled at the January 10, 2017, hearing, so it really does not matter that the submission was rejected.

Hiller Statement of December 14, 2016.

Download folder for Hller December 14, 2016 Statement and Exhibits.

Rosenberg Statement of December 7, 2016.

Download Folder of Rosenberg Statement with Exhibits.

Congregation Reply Memorandum December 28, 2016.

Hiller Reply Memorandum of January 9, 2017 Presented at January 10, 2017 Hearing.

Exhibits Posters Presented by Alan Sugarman at January 20, 2017 Hearing.

 

 

BSA Denies Shearith Israel Request of Letter of Substantial Compliance

April 19, 2016 - updated April 20, 2016 - Incredible news - as shown in the e-mail from BSA to the attorney for the Congregation, the BSA has determined that it may not provide a letter of substantial compliance to the Congregation as to the plans filed by the Congregation with the Department of Buildings. This would mean that the Congregation has to file new plans with the Department of Buildings. However, the prior plans filed by the Congregation have now established that the Congregation does not have the programmatic needs upon which the variances provided by the BSA were based. This is somewhat novel territory as to predicting what the next steps will be.

 

Recent Documents to April 16, 2016 - DOB and BSA Battered by Lobbyists

In this posting, we provide some recent correspondence and douments, in reverse chronological order.

2016-04-16 Landmark West (Rosenberg) Supplmental Appeal to DOB (filed 14 days after DOB stated that its September 2016 Decision applied to Landmark West Challenge.)

2016-04-08 Sugarman to DOB Legal Re Status Internal Appeal (Kettaneh must exhaust adminstrative remedies within DOB prior to appealing partial denial by DOB to BSA.)

2016-04-01 DOB to Rosenberg - DOB Waiting for BSA Action (DOB states for first time that it had decided the initial Landmark West challenge.)

2016-03-30 Sugarman Letter to BSA Objecting to Private Proceedings

2016-03-30 Rosenberg Letter to BSA Demanding Public Proceeding

2016-03-30 DOB to CSI - New Notice to Revoke

2016-03-30 Revocation of CSI Permits As Per DOB BIS Website

2016-03-26 "A SYNAGOGUE'S LONG DELAYED BUILDING", Wall Street Journal

2016-03-16 8 West 70th Summary Baseline Schedule

2016-02-18 SECRET PROCEEDING THE FIX IS IN: Friedman to BSA Request for Certificate of Substantial Compliance

2016-01-15 Kettaneh-Sugarman Supplement to Second Challenge and Appeal-with-exhibits

2016-01-15 Second Letter Sugarman to DOB

2015-10-28-Sugarman-Second-Challenge-and-Appeal

DOB Public Challenge Rules in Their Own Words - added April 4, 2016

• Initial Public Challenge Period: When DOB approves plans
for any new building or major enlargernent, the building
diagrams, called ZD1 forms, and other associated documents·
will be uploaded to the DOB website. In addition, once a
permit is issued builders will be required to post the permit at
the location within three days so the public is aware of the
proposed development. New Yorkers will have 30 calendar
days to review and challenge the development approval. [Note- Kettaneh appealed in a timely manner on June 10, 2015.]

• Initial Zoning Challenge Review: After the initial public
challenge period ends, the DOB Borough Comnissioner will
address every challenge by conducting a full review of the
construction plans and rendering decisions that will be posted
online. If a challenge is determined to be valid, appropriate
enforcement action will be taken, including issuing Stop Work
Orders, revoking of permits, and requiring redesigns of the
proposed construction. [The DOB Decision of September 22, 2015 was posted on-line on October 15, 2015.]

• Community Appeals Period: If the Borough Commissioner_
determines that a challenge is invalid, the public will be given
an additional 15 calendar days to appeal to the First Deputy
Commissioner. [Note - Kettaneh Immedidately Filed A Further Appeal in a timely manner on October 28, 2015.]

• Final Zoning Challenge Review: Once the First Deputy
Commissioner issues a determination, the decision may be
appealed to the Board of Standards and Appeals for a final
determination. [Note: Despite repeated requests to the DOB, a determination on the further appeal has not been made by the First Deputy Commissioner.]

DOB Threatens to Revoke Building Permit Unless Congregation Shearith Israel Shows Up For a Meeting-January 1, 2106

Since the DOB decision of September 22, 2015, Congregation Shearith Israel has done little to revive its building project, except for having a high powered lobbyist pressure DOB, as revealed by documents obtained by ProtectWest70th pursuant to a Freedom of Information Law request. Apparently, on November 16, 2015, lobbyist Brooke Schafran of Capalino and Company wrote Deputy Borough Commissioner Scott Pavan requesting that the Department allow for existing permits to remain active. Schafran enclosed a letter from the Congregation's architect. Schafran is not an architect, engineer, planner, or attorney and one suspects that her role was to exert political pressure. The next document disclosed by DOB is a letter of December 10, 2015 from Borough Commissioner Martin Rebholz, not to Schafran, but to the President of the Congregation and the Congregation's Architects. This letter put the Congregation on notice that the DOB intended to revoke the permit and required the Congregation to appear at a meeting with the architect. We are looking forward to receiving the Congregation's response from DOB.

DOB Stops Construction and Accepts Kettaneh Challenge - October 14, 2015

On September 22, 2015, the New York City Department of Buildings issued its decision accepting in part Nizam Kettanehís Zoning Challenge and Appeal of June 8, 2015. On October 11, 2015 issued a Notice to Revoke the Congregationís Construction Permit. Effectively, the DOB halted construction of Congregation Shearith Israel's condomimium-community house project. The decision was posted on the DOB web site on October 14, 2015. The DOB essentially has required the Congregation to return to the Board of Standards and Appeals.

Following is the decision of the DOB examiner:

This challenge to the Departments zoning approval for the alteration and residential enlargement of the existing house of worship has been accepted for the challengerís listed items 1 & 4 as a number of valid questions have been raised in connection with the BSA variance (BSA Calendar No. 74-07-BZ). The four main challenge points are addressed below:

1. The Department is unable to make a determination on the specific question of the validity of the BSA variance on the grounds that the underpinning for the programmatic need argument has changed, however the fact that interior layouts have very substantially changed throughout all floors of the proposed building warrant that the applicant return to the Board of Standards and Appeals for a modification of the previous approval, or other measure as deemed appropriate by the Board.

2. Consistent with BSA and DOB practice, rooftop mechanical bulkheads and stair or elevator bulkheads may be modified post-BSA-approval provided they fully comply with the applicable underlying regulations for height and/or coverage for such permitted obstructions above a building height limit.

3. The setback terrace proposed in DOB plans, while not specifically identified in BSA plans as being an accessible terrace, is substantially in compliance with BSA approval.

4. With respect to the altered location of the caretaker's apartment, such change is not substantially consistent with the BSA-approved variance plans, and the applicant shall return to the Board of Standards and Appeals for a modification of the previous approval, or other measures as deemed appropriate by the Board.

Therefore, this zoning challenge to the Department's approval of new building application #121328919 is accepted for items 1 & 4. Upon review of the information submitted with the challenge request, the Zoning Resolution, and other available information concerning the property and project, the Department will take appropriate action based upon the results of said investigation.

 

Challenges filed in June 2015 Against the Condominium-Community House

These challenges were timely filed, but, after a month, the Department of Buildings has not indicated that challenges were filed and will not acknowledge that the challenges were filed!  A construction permit may not be issued to CSI until after the Challenge is considered by the DOB.

June 10, 2015 Kettaneh Challenge

DOB Challenge Form

Kettaneh Challenge

A Exhibits - Excerpts of Statements Made by CIS to Obtain Variance

BIS Exhibits - Extracts from DOB Files

MISC Exhibits - LPC and other docs

June 18, 2015 Landmark West Challenge

Landmark West Challenge

Update -2012-2015

As most are aware, the Court of Appeals did not accept the motion for Leave to Appeal.  Thereafter, the Congregation was free to pursue its construction.  In 2013, the Congregation asked LPC to amend the Certificate of Appropriatness to incorporate changes required by the 2008 Board of Standards and Appeals variance decision, the Congregation having done nothing for over 18 months.  But, the Congregation did more and made changes to the rooftop of the building, which was approved by LPC, but which the Congregation decided to not submit to BSA.

At the same time, the Congregation filed for approval from the Department of Buildings - in 2013.   Although full plans were not made avaialable on the DOB web site, there are documents that show that the Congregation elminated the caretaker's apartment and most of the classrooms - the elements of programmatic need upon which the BSA variances were predicated.

Although the Congregation had sworn up and down and upside down and sideways that the three floors of classrooms were a integral part of the Congregation's programmatic needs and had nothing to do with the private school to which the Congregation intended to rent the space during the day, once the day school was no longer interested in being a tenant, then the classsrooms were removed from the plans.  It is important because the Congregation argued that the floorplans (floor plates) were too small to accomodate a school with offices, classrooms, and rest rooms on each floor.  The Congregation also argued that it could not building condominiums on these floors because it was critical to the Congregation to have the classrooms of the second, third, and fourth floor - all of which turned out to be untrue.

In May, 2015, DOB finally approved the plans of the Congregation, again with no plans avaialable to the public.  However, other documents on the DOB web site showed similar elimination of the classroosm except for a classrooms for 60 on the second floor.

Accordingly, as allowed by DOB Rules, a Zoning Challenge was filed on June 10, 2015, based upon the bait and switch executed by the Congregation and the increase in building height.  It now is inevitable that the loser of this challenge will  appeal to the BSA, which can then decide whether the Congregation can proceed.

In the meantime, demolition of the old community house is nearly complete, revealing for a while the pristine beauty of the Sanctuary. Presumably, excavation and site preparation will proceed over the next 9 months or so, and then we will see what building the Congregation is allowed to construct.

Motion For Leave to Appeal Filed With NY Court of Appeals

Petitioners Kettaneh and Lepow have filed a motion for leave to appeal with the New York Court of Appeals returnable on December 19, 2011. Permission is required to appeal if there are no dissents in the Appellate Division. Landmark West filed a separate motion, also returnable December 19, 2011. Only 5% of motions of this type are granted.

Kettaneh Motion With Selected Exhibits

Kettaneh Briefs Below Exhibits G-V.

Ketanneh Opinions Below Exhibits A-E.

Landmark West Motion.

Appellate Division Rules Against Kettaneh and Landmark West June 23, 2011- Appellants Move to Reargue July 22, 2011 - Waiting for Decision

In a very cursory decision, which addressed none of the arguments raised on appeal, the Appellate Division First Department ruled against Kettaneh and Landmark West. Both parties have filed motions for reargument that very much address the weaknesses of the court decision. The terrible decision, which wreak havoc on New York City variance and landmark law is discussed in the motion papers for reargument, below.

Appellate Division Decision

Kettaneh Motion for Reargument and Reply.

Landmark West Motion and Reply.

Congregation Response to Motion.

City Response to Motion.

Oral Argument Schedule for April 5, 2011 at 2 PM.

Kettaneh and Landmark West filed their reply briefs on March 11, 2011.

Oral argument has been set for April 5, 2011 at 2PM at the Appellate Division, First Department Court House at 27 Madison Avenue New York, NY 10010. The entrance is on 25th Street ,up the stairs. The court room is to the right. The public is welcome. The argument will be 30 minutes with each party to receive 7.5 minutes.

February 21, 2011 Update

Responsive briefs in the Appellate Division appeal were filed by the City and the Congregation on January 14, 2011. The reply brief of the Petitioners Kettaneh and Lepow are due March 11, 2011, with the appeal scheduled to be argued for the April Term.

The Landmark West case has been scheduled to be argued the same day in the April Term. Landmark West filed its brief on November 15, 2010, and the City and Congregation responded on January 14, 2011. The reply of Landmark West is also due March 11, 2011. In their responses to Landmark West, both the City and the Congregation incorporated their responses in the Kettaneh Appeal.

The Congregation and City briefs are largely red herrings served on a bed of straw men, replete with misleading references to the record and the decision below. More to come ...

October 8, 2010

On September 7, 2010, Kettaneh filed its 70 page appellate brief and 7 volume appendix with the Appellate Division First Department. The respondents BSA and Shearith Israel have requested additional time to respond until December 8, 2010, with Kettaneh's reply due January 4, 2011. In a related matter, Landmark West has requested that it be allowed further time to file its appeal until November 5, 2010.

The appeal is scheduled for the February 2011 Term.

May 11, 2010

On April 9, 2010, Justice Lobis summarily denied the motions to reargue and the intervene - in a four page decision, which could not have been much shorter. Although the Court claimed to have discussed the issues raised, we are still poring over the Court's initial decisions trying to find a discussion of the issue of a bifurcated financial analysis or the issue of the BSA jurisdiction to base a variance based upon a landmarking hardship. The Court said that the remedy was to perfect the appeal - and that will be accomplished soon.

January 25, 2010 - Status

Both Kettaneh and Landmark West have filed notices of appeal from the decisions of Justice Lobis. Landmark West then filed a motion for reargument in October, 2009.

In the reargument motion, Landmark West falsely claimed that certain issues were not covered in the Court's Kettaneh Decision, because Landmark West claimed inaccurately that Kettaneh had not raised them. Remember that the Landmark West decision incorporated the Kettaneh Decision by reference. Landmark West made this inaccurate claim possibly as an expediency in order to boost its chances on its motion for reargument. This put Kettaneh in the unhappy position of having to move to intervene to protect itself from the false maneuvering of Landmark West - Landmark West then opposed Kettaneh's motion to intervene!

The motions have been fully briefed - links may be found on the Article 78 Court Filings Page.

January 25, 2009 - Short Comment on Landmark West - I

Much could be written about the complete distraction of the Landmark West filings. Landmark West started its case on the wrong foot as a complaint rather than an Article 78 proceeding and then failed to raised many issues ( including arguments raised in its reargument motion) until it filed its reply memorandum in June, 2009. Landmark West was still trying to articulate its own arguments months after Kettaneh's Case had been fully submitted for decision.

Landmark West is constantly shifting how it articulates its arguments, raising and then abandoning rationales (some good and some bad). For example, having raised the issue of the jurisdiction of the Department of City Planning by naming the Department as a defendant, LW never discusses their rationale for naming the Department.

LW's primary claim is one of procedure - whether the DOB had properly issued its original Notice of Objection in March, 2007 - and we agree they did not. But, then the Congregation went back to DOB in August, 2007 and obtained a new Notice of Objection, and claims that any March defect were cured by the August submission. LW does not deal with this cure argument. Rather than focus on the defect in the August, 2007 resubmission, Landmark West continues to dwell on the March, 2007 defects that arguably were cured in August, 2007. Go figure.

For Kettaneh, this is a distraction and is consuming resources for no point. And, it does not help that assertions of fact by LW are not made with care, only muddying the record. This case is an uphill battle - not al all helped with muddied facts and confused arguments, sometimes citing the law which does not support the arguments made. To the extent that a court does not distinguish between opponents, the dangers to Kettaneh are obvious.

The likelihood of the Court granting the reargument motion is negligible, since the Court is clearly of the belief that is must affirm all agency decisions - or that is least how this Court acts. This is basically the "potted plant" approach to administrative review.

Although Landmark West had been a useful force in representing the West Side community, litigation seems not to be one of their strengths. A review of the Court records shows that they have lost every single one of the eight cases they filed from 1992 to 2008. Partly this may be the result of impulsive litigation management by committee and the inclination to make rhetorical policy arguments as opposed to facing the law and facts of the case and the arguments made by the opponents.

August 4, 2009 - Court Dismisses Landmark West Article 78 Proceeding

As expected, Justice Lobis of New York Supreme Court dismissed the Landmark West Article 78 proceeding in a 6 page decision which addressed only the claim relating that the BSA lacked jurisdiction because of deficiencies in the DOB action being appealed to the BSA. The Court incorporated by reference its July 19, 2009 33 page decision in the Kettaneh case asserting incorrectly that the arguments made by Landmark West were addressed in the Kettaneh decision - they were not. Indeed, arguments made by Landmark West (and Kettaneh) as to the improper bifurcated feasibility analysis and the lack of jurisdiction of the BSA to use landmarking as a basis for variances were not addressed in the Kettaneh decision.

The Court also materially misstated the facts on the last page of the decision: the assertion that the project had evolved from a 14 story project to an 8 story plus penthouse project over time. This is completely incorrect as to the application before the BSA which concerned the 105 foot 9 floor project as to which the Landmarks Preservation Commission issued a certificate of appropriateness in 2006. The only change made in the plans was the rear courtyard unblocking the rear lot line windows submitted to the BSA at the end of the proceeding. The Court was confused by the fact that during the Landmarks proceeding, the height of the building was modified. Absolutely no modifications were made to the plans that in any way related to the eight objection issued by the DOB in March 2007 and removed in August 2007 without explanation. The Court states "Revisions to Proposals may be required to address the DOB's objections." That is true. What is not true is that revisions were made in this matter - not exactly a subtle distinction. The distinction was made to the Court and ignored by the Court.

July 25, 2009 - Why Did the Court Ignore the Fact That The Congregation Would Earn A Reasonable Return from It All Residential Building?

[The following is not intended to be a comprehensive analysis of the decision - it does, however, illustrate the vulnerability of the decision to an appeal.]

It is always frustrating when a court mischaracterized a position so that it may ignore other points. This is what the Court did in its July 10, 2009 decision. This is a common ploy and the Court adopted the mischaracterizations of the BSA as to positions of the opponents and Petitioners. By suggesting at the conclusion of the opinion that the Court might have ruled differently if it were conducting a de novo review, the Court appeared to imply that it had addressed the positions of the Petitioners in the remainder of the decision.It had not.

We believe that if the appellate court accepts the view that the reasonable return analysis must be performed as to the entire site, then the variances must be annulled. But, the Court adroitly avoided addressing this argument, even though pointedly raised by the Petitioners. See Ex. N-1. This exhibit was shown to the Court at the March 31, 2009 hearing.

In order to uphold the variances, the Court needed a way to ignore the Petitioners' attack upon the feasibility studies submitted by the Congregation. A typical way to ignore inconvenient positions is for a court to mischaracterized the inconvenient positions by addressing secondary points, while claiming that the secondary points were the primary arguments, and then dismissively not addressing the primary arguments.

Both the BSA and the Court asserted that the Petitioners' primary argument was that the BSA should have used a return on equity analysis. But, the Petitioners' had argued explicitly that even a return on investment showed a reasonable return could be earned. [On the other hand, unfortunately, the Landmark West petition did seem to stress the return on equity point.]

The Petitioners were explicit that the BSA had mischaracterized the positions.

¶ 167 of the Petition states: "both the Scheme A and Scheme C conforming as-of-right buildings would earn a reasonable return for the owner whether using return on investment or return on equity."

¶204 of the Petition states in criticizing the BSA decisions: "The Decision discussion of return on equity is not only not candid, but suggests, falsely, that this was the only issue raised by opponents as to the reasonable return/feasibility reports."

At the hearing, Petitioners counsel said that its most important point, saved until last, was that the return on investment of an all residential building earned a reasonable return.

What then did the court state at p.22: "Finally, petitioners' biggest complaint was that the Congregation's expert did not utilize the return on equity analysis in determining the Project's rate of return." This was utterly false, but, allowed the court to deal with the return on equity issue at length, and then ignore Petitioners' primary points.

The Court needed a way not to address the Petitioners' conclusive demonstration that the Congregation would earn a reasonable rate of return from the "not-really" all residential as-of-right building presented in December 21, 2007. The Court did note (although the BSA decision did not) correctly that the Freeman Frazier had stated that a 6.55% return was a satisfactory return. p. 21.

" Freeman/Frazier notes that this is at the low end of the range that typical investors would consider for an investment opportunity."

But, the Court left out the next sentence in Freeman Frazier's report (R-140) as quoted by Petitioners in ¶ 50 of Petitioners' reply :

5.00 Conclusion 7.4 0.7.
The Proposed Development provides a 6.55% Annualized Return on Total Investment. This return is at the low end of the range that typical Investors would consider as an investment opportunity, taking into account the
potential risks inherent in this type of development project, and few, if any, investment options. The returns provided by the Proposed Development alternative, in this case would, therefore, be considered acceptable for this project.

So, the Court left out the part of Freeman/Frazier's statement that the return of 6.55% was "acceptable." This was deliberate, given the emphasis by the Petitioners as to this point.

On page 8-9, earlier in its Decision, the Court described correctly Freeman Frazier having submitted an analysis of an all residential building on December 21, 2007 and that the proposal "provided an annualized return on total investment in the amount of 3.63%." [The Court also discussed this same filing more obliquely on page 21.] The Court then describes further submissions, but circumvented the fact that this analysis was not one of the proposal revised later.

But, Petitioners made clear in ¶26 and in an entire section of its petition ¶¶66-76 that the all residential plan Scheme C was not updated after December, 2007. It was so clearly evident that the Scheme C was not updated properly, that the BSA in its Article 78 answer recalculated the analysis as is should have been done in the BSA proceeding and arrived at a rate of return of 6.7%. Petitioners pointed this out in its reply at ¶¶43-51. Clearly, this admission by the City should have ended the issue of validity of the condominium variances - and Petitioners' counsel at the hearing was crystal clear that this was its most important argument and was dispositive of the case.

So, what did the Court do? First, as noted before, it ignored Freeman/Frazier's admission that 6.55% was "acceptable." Then, the Court did not even mention the BSA's admission at ¶292 as to 6.7%, and covered this up by using the ploy that the Court was completely addressing the Petitioners' most important point, and dismissively not discussing the other points.

We believe this will be easy to demonstrate on an appeal.

The Court similarly completely failed to discuss at all the primary objection that Petitioners asserted as to the site value used in the bifurcated two floor condominiums as-of-right analysis. The Court observed that Petitioners' had objected to the exaggeration of the site value - but, did not discuss the issue at all.

The Court noted that a the November 27, 2008 meeting, "The BSA asked the Congregation to consider only the value of the residential portion of the site in calculating the reasonable return, and eliminate the community facility from the site value. p. 8.

What the Court failed to note is that Freeman Frazier never revised the site value in this matter at all. Petitioner's demonstrated this with Exhibit N-3 filed with it Reply, and displayed to the Court at the hearing of March 31, 2009 on a large poster board, which showed that the site value used on October 25, 2007 was $17,050,000 and was $12,347,000 by the final site value used in May, 2008. Because the community house with one double and 3 regular floors, it was 5/7 of the as-of-right building. One would have expected that the site value was reduced by that proportion. But, it was never done. Petitioners' attacked this site value in numerous other ways - the Court noted the objection in general to the site value, but did not discuss the objections at all.

The Court also completely ignored the Petitioners' legal argument that a bifurcated analysis was the improper standard. The Court's only reference to this argument was at p.21 where the Court stated: "Petitioners assert that although the BSA required the analysis to be performed, the BSA never explicitly addressed how the reasonable return analysis should be conducted, since there is no language in the statute as to how to consider a mixed-use profit and non-profit structure." This is quite odd: the Court said that the statute was silent - but, then ignored all of the applicable case law on the issue, as if it did not exist, and did not even attempt to engage in a rational policy analysis.

Finally, on the issue of the feasibility study, one fact stressed repeatedly by the Petitioners that the Court (and the BSA) failed mention was the $12,347,000 payment being made to the Congregation as the acquisition price and the fact that the BSA completely ignored the return on investment inherent in such payment. Nor did the Court bother to discuss the extensive New York case law requiring that the cost to the owner of acquiring the site be considered in a reasonable return analysis. This was also required by the formal written BSA guidelines. The BSA just failed to consider the issue - to cover for the BSA, the Court noted that the cost of acquiring the three lots was listed in the deeds: but, this actually makes the BSA failure look more negligent, since the deed refer to nominal payments of one and ten dollars - so, that would make the returns o $12,347,000 on a 21 dollar investment astronomical.

This note is not exhaustive as to the errors, even as to reasonable return, but, is being provided to suggest the possibilities of an appeal.

July 10, 2009 - Court Rules For BSA

We were notified late on July 15, 2009 the Court's decision of July 10 ruling in support of the BSA and the Congregation Shearith Israel. Although disappointed, we note that the Court said that if a de novo review were to be held, she may have ruled for the Petitioners. We also believe that sufficient errors of law were made by the Court to form a basis for an appeal. Most alarming was the cursory discussion of unique physical condition, failure to discuss the absence of authority for the BSA to use landmarking as a physical conditions, the failure to discuss the need for a reasonable return analysis to be base upon the entire sight, conflating and confusing the various as of right studies, not addressing the computation of rate of return for the all residential building as provided by the BSA in its answer, failure to explain why it was not arbitrary to block the windows of the front apartments, and even more. Puzzling was the Court's use of the term "return on profit".

July 8, 2009 - Court Denies Motion of Further Reply

The Court denied Kettaneh's motion to file a further reply. The motion had been filed so that Kettaneh could respond to new assertions and misrepresentation made in the papers filed by the BSA and the Congregation when answering the LW petition. Kettaneh had intended to file a memorandum substantially in the form of the attached draft further reply.

The Court claims that it will not consider the filings in the Landmark West proceeding - yet, on March 31, 2009 the Court held a combined hearing. We hope that the Court can ignore what the Congregation alleged in its response to Landmark West.

June 19, 2009 - Landmark West Replies

Landmark West replied to the Answers of the BSA and the Congregation on June 19, 2009. The LW reply was disappointing in that the distorted factual assertions made by the BSA and Congregation in their May 26, 2009 answers were ignored. In fact, the LW reply includes no citation to the Record in support of its positions. Rather, LW in a footnote decided to rely on the fact-detailed responses of the Kettaneh Petitioners. Much of the LW reply was devoted to the argument that LW had standing and to a technical jurisdictional argument. LW avoidance of references to the record ordinarily would result in the court ignoring their arguments. The LW Memorandum of Law briefs issues and cites material not raised in its Petition, but rather included in the Kettaneh filings. Thus, nothing material is added by the LW filings.

The Kettaneh Petitioners do not concur with all of the positions taken by LW. For example, LW argues that the BSA's bifurcated analysis was improper, but does not state what would be a proper analysis. The Kettaneh Petitioners argue that the bifurcated analysis was flawed, one reason being that the BSA allowed landmarking issues to intrude on the valuation process. The Kettaneh Petitioners then argue that the required all-residential analysis, also flawed to the benefit of the Congregation, still showed that the Congregation would receive a reasonable return, and for that reason, the Court should simply annul the BSA determination without the need for further BSA proceedings. LW was ambiguous and seemed to suggest other types of feasibility analysis.

Because the Congregation and the City added to their asserted facts and arguments, without response by LW, the Kettaneh Petitioners asked the court for the right to file another brief setting the record clear. Basically, the Kettaneh Petitioners view the LW filings to be a net negative.

June 19, 2009 Landmark West Reply Memorandum of Law.

May 26, 2009 - Responses to Landmark West Petition Filed.

The City and the Congregation have filed their answers to the amended petition of Landmark West. Both respondents essentially copied their prior answering papers to the Kettaneh Petition. In addition, the Congregation's Memorandum of Law rewrote many sections and in essence filed a sur-reply to the Kettaneh reply papers, after the Court at the March 31, 2009 hearing had denied the Congregation's request to file such a sur-reply.

LW Amended Petition of May 9, 2009 (removing two petitioners from action).

Congregation Memo of Law of May 26, 2009 in answer to LW.

Congregation Answer of May 26, 2009 to LW Petition.

City Memo of Law of May 21, 2009 in answer to LW.

City Answer of May 26, 2009 to LW Petition.

May 4, 2009 - Report on Status

Justice Lobis of the New York State Supreme Court held a joint hearing on the Kettaneh Article 78 proceeding and the Landmark West secondary action on March 31, 2009. See Transcript. Alan Sugarman argued the merits of the Article 78 proceeding on behalf of the Kettaneh Petitioners and presented a number of poster sized exhibits. Sugarman conclusively showed, among other things, that an as-of-right all residential building would earn a reasonable return, and accordingly the Congregation's condominium variances did not meet the requirements of finding (b) of New York City Zoning Resolution 72-21. Sugarman explained that the BSA had improperly used the landmark status of the Congregation site and buildings in making the (b) finding as well as in making the (a) finding, arguing that the BSA had no jurisdiction to provide relief from hardships allegedly created by the landmark laws. Sugarman also communicated to the Court the fact that 90% of the variances related to the condominium part of the project, that access and circulation was an irrelevant issue, and that the BSA had shown its bias in failing to consider as to the community house variances that the caretaker's apartment could be accommodated on the fifth floor of a proposed building - without requiring a variance for the fourth floor. These issues and factual assertions are not included in the Landmark West pleadings.

The Kettaneh Petition would be ready for decision, except for the procedural situation created by the Landmark West case. Landmark West chose to start its case as a regular action with complaint. Over half of the hearing was devoted to Landmark West attempting to justify to the Court that it was proper to commence its case as a regular action. Ultimately, the Court concluded that Landmark West was in error, and in a decision of April 21, 2009, and ordered that the Landmark West case be converted to an Article 78 proceeding, giving the Respondents 10 days to respond - but, only after Landmark West gives the Respondents notice. On April 24, 2009, Landmark West served the decision and order on the Respondents and their response would then be due ten days later; but, because Landmark West served by mail, the response papers will be due May 11, rather than May 4.

This case is destined to continue as a number of procedural issues are raised relating to the conversion of a complaint to a petition and the ability of the respondents to respond to what what a complaint. This will prolong the case - which is problematic since there is no stay in place to stop the Congregation from proceeding with construction.

The Court at the hearing did inquire as to what the Landmark West complaint added which was not included in the Kettaneh Petition. Counsel for Landmark West and the City struggled to provide an answer. The fact is, on important points with a chance of success, all points are covered in the Kettaneh Petition. The Landmark West petition alleges that the BSA unconstitutionally provided religious deference to the Congregation; the Kettaneh Petition position is that whatever the motives of the BSA, the five findings of the zoning resolution were not met, and there is no need to move to the motives of the BSA. Additionally, Landmark West argued that the BSA improperly assumed jurisdiction on the original application because of defects by the DOB: the Kettaneh Petitioners did not want to argue this point whatever its technical legal merits, for they expected the BSA to claim (as it did) that the August 2007 amended DOB filing cured the original defect. The Landmark West complaint also made general conclusory assertions made Kettaneh Petition, but the Kettaneh Petition provided detailed citations to the record but the Landmark West complaint did not. As to these assertions, the Landmark West complaint relied upon weaker facts than those cited in the Kettaneh Petition. In addition, the Landmark West complaint makes no argument on the issue of the windows in 18 West 70th (except for one phrase) and no reference to shadows created by the BSA's ignoring the important contextual zoning laws.

Whatever occurs, it is clear that that there will be delay and that delay could have undesirable consequences due to lack of a stay. It is also likely that there will be further misdirection, confusion, and conflation of the facts of the case unless Landmark West carefully scrutinizes its statements of facts - but, even then, the Respondents will have the opportunity to dissemble and distort once again.

May 4, 2009

We are pleased now to post more of the filings in the Article 78 proceeding, since there is no longer a litigation strategy benefit in not posting these documents.

In the right column are links to the various documents filed by the primary petitioners, Kettaneh and Lepow, against the BSA. In all the Kettaneh Petitioners filed over 600 pages in support of their Petition including a 79 page Petition, a 248 page Reply, and two Memoranda of Law totaling over 172 pages and citing 75 judicial precedents. The Kettaneh Petitioners also prepared over 50 pages of special graphical exhibits and presented some of these at the March 31, 2009 hearing.

Documents have also been posted in the the secondary case by Landmark West and other petitioners. Landmark West has filed on the substance a 27 page Complaint - Landmark West has yet file any exhibits or to file a substantive memorandum of law.

February 26, 2009

The court hearing in the Article 78 Appeal Proceeding by Peter Nizam Kettaneh and Howard Lepow against the BSA has now been scheduled to be heard on Tuesday, March 31, 2008, 10:30 AM before the Honorable JOAN B. LOBIS,: 60 Centre Street, Room 345, New York, New York 10007. The hearing is open to the public in theory, although, this Judge usually hold hearings in chambers. At the same hearing, Landmark West will have the opportunity to argue, in its separate case, the two motions to dismiss filed against the Landmark West plaintiffs.

Among other things, the Kettaneh Petition and the Landmark West Complaint both argue that it was a violation of the law for the BSA to consider the landmarking of the zoning site and a building on the zoning site as a factor in making the hardship (a) finding under Z,R. 72-21. Relief from any such hardship, opponents argue is a matter for the Landmarks Preservation Commission and the City Planning Commission. The Kettaneh petition is being argued on the merits-in the City answer to the Kettaneh petition, the City reaffirmed that it had in fact used landmarking as a factor in making the (a) finding.

Check back for further analysis.

September 29, 2008

On September 29, 2008, an Article 78 appeal was filed against the BSA and Congregation Shearith Israel by West 70th residents and property owners in the New York State Supreme Court. The petitioners are Peter Nizam Kettaneh and Howard Lepow and are represented by Alan D. Sugarman. The comprehensive 69 page petition was accompanied by a 98 page memorandum of law and a 13 volume, 4200 page compilation of documents filed in the BSA proceeding. The return date for the hearing is October 31, 2009, but it is expected that the City and the Congregation will seek and appeal.

The petition attacks the BSA for having issued a disingenuous decision which conceals the true facts and reasoning behind its decision. In reality, the BSA ignored requirements that each of the variances satisfy the five findings of Section 72-21 of the New York City Zoning Resolution in a way that eviscerates the variance requirements. The BSA further ignored the legislative determination in the 1984 mid-block zoning that the light and air and scale of the mid-blocks were deserving of protection, deciding that the individual impact of the tall building without setbacks were too small so as to represent an impact on the public welfare in conflict with the (c) finding of Section 72-21. This troubling conclusion basically removes the protections of mid-block zoning when coupled with the BSA's findings that it would ignore the physical condition requirements of finding (a) and would not require probative proof that the owner of a property must show that a reasonable return could not be earned as required by finding (c).

There were two sets of variances approved - three variances related to expansion space sought for the schools operated by the Congregation and its tenants on floors 2,3, and 4. These three variances added only 1500 square feet of space to a conforming building, and were justified by this so-called programmatic need.

The other set of variances - four in number - related to the upper floors of the proposed building and permitted the construction of an additional 12, 500 square feet of condominium space. Thus, the upper floor variance accounted for 90% of the space allowed by the BSA and had nothing at all to do with the religious ownership of the site, of so BSA claimed, and were justified because the Congregation could not earn a profit on the development site because of the hardship resulting from the landmarking laws and the zoning laws (if you are a zoning lawyer, note the circularity here).

August 29, 2008

As expected, BSA on August 26, 2008 voted to grant all variances to Congregation Shearith Israel; the decision was released on Friday, August 28, 2008.

Faxed version of BSA Opinion
OCR'd and Numbered Version (more readable).

To be polite, the decision is cowardly and disingenuous - the BSA did not have the moral fortitude to candidly acknowledge that it was providing variances for the construction of condominiums where no programmatic needs exist. The findings of fact are in reality finding of conclusions; the positions attributed to the opponents were mischaracterized to provide red herrings to attack, the analysis is simplistic and flawed, and the case law citations are generally not on point.

As in all BSA decisions, opponents have the burden of proving that the applicant's statements are wrong, and the standard of proof is beyond all reasonable doubt. In other words, whatever the applicant claims is accepted by the BSA, even is palpably untrue.

An Article 78 proceeding, appealing the decision to the Supreme Court of New York County must be filed within 30 day, or by September 29, 2008.

Stay tuned.

August 6, 2008

The BSA is expected to grant variances to Congregation Shearith Israel at its August 26, 2008 meeting. Community opponents will be filing an Article 78 Appeal to the Supreme Court (the lowest trial court in NY State) within the allowed 30 days.

Because we are moving into litigation, we believe it is prudent to restrict access to the organized files on the site so we are not a free litigation resource for opposing counsel.

We will publicly post some documents - for example

July 29, 2008 Post-Hearing Statement in Opposition, Alan D. Sugarman

June 10, 2008 Supplemental Opposition Statement, Alan D. Sugarman

Jay Greer Submission of July 29, 2008.

In order to pursue the appeal, financial support is needed as well as legal research support- the type of researched performed by second year associates, in the area of zoning law, administrative law, constitutional takings law, and Article 78 proceedings. Please contact sugarman@sugarlaw.com.

Please also contact us if you need access to the documents.

July 9, 2008

We note with sadness that our colleague, neighbor, friend, and inspiration Norman Marcus (1932-2008) passed away on June 30, 2008. A memorial service held yesterday was attended by his family and many many friends. A link to his obituary is here.

July 9, 2008

Today's New York Times has announced that the New York Historical Society has cancelled its plans to build a 23 story luxury condominium on a vacant site it owns on West 76th Street. Instead, the Society has already raised $55 million of the $77 million needed for a complete renovation and reconstruction of the Society's building. The project involved the same architects and lawyers who are behind the Shearith Israel project, which was seen as the stalking horse for the NYHS project as well as other projects around the City. 76th Street residents, realizing this, have helped in the opposition to the Shearith Israel project. As well, Landmark West helped coalesce the opposition and Kate Wood was quoted in the article. It is time for Shearith Israel to follow the lead of the Historical Society, the West Side Jewish Community Center on 76th Street, and the Eldridge Street Synagogue, and raise the funds for its new school and community house project and construct an as-of-right building, with a design from its skilled architects that is no a glass walled condominium design.

June 24, 2008 - The Fix Is In

In caving to its masters, BSA "Red Hooked" the Community on Monday and Tuesday, revealing that its 16 months of hearings were nothing more than a sham, as if we did not know from the begriming, which started with an ex parte hearing.

At its open executive committee hearing on Monday, the BSA Chair announced that it seemed clear that the Congregation had satisfied all the findings required for a variance, and all the other Commissioners took the signal and chimed in behind her. The formal hearing was held June 24, 2008 at which the opposition lambasted the Board. At the conclusion of the hearing, the Board announced that the final decision will be issued on Tuesday, August 25, 2008. This means that an Article 78 petition by the community appealing the expected negative decision must be filed on September 25, 2008.

The following statements were filed by the opposition:

Alan D. Sugarman Sur-Reply Letter in Opposition.
Martin Levine sur-reply letter re feasibility studies.
more to come ...

The Congregation showed up with what appears to be its new litigation counsel, a member of the Congregation who is a partner at the Proskauer firm, a firm where partners earn over one million dollars a year. We await this partner telling the court that his Congregation is in desperate need of financial support, and that the variances are needed so as to lower his membership dues and building fund contributions.

We expect the Article 78 case to be a landmark case - what the Congregation wishes to do is to provide a right to non-profit religious institutions to obtain variances to build condominiums to support the institution, (not even with a showing of financial need.) In order to succeed, the Congregation will be asking the courts not to apply the important Penn Central, St. Bartholomew, and Ethical Culture cases.

The BSA and it political masters wish to disguise what it is doing so that the numerous religious organizations in Brooklyn who have filed for, and have been rejected for, identical type variances will not catch on. But, the record is too transparent. The politicians will have no cover at all, whatever they want to tell their buddies on the contribution cocktail circuit. This would be fun, if it were not so tragic.

June 17, 2008 - Congregation Admits False Statement to BSA and that No Case Law Supports its Position

June 17, 2008 CSI Reply Filing to BSA Complete (61 pages)
Friedman & Gotbaum Statement for Applicant
Freeman Frazier - Yet Another Letter Re Feasibility.
AKRF - Yet another attempt re Environmental Study

June 10, 2008. Opposition Files New Statements

Sugarman Supplemental Opposition Brief.
Mulford Economic Analysis in Opposition.
Levine Valuation Analysis in Opposition.
Landmark West Statement In Opposition
Landmark West Summary of Flaws in Congregation's Submissions.
Jay Greer Re Classroom Needs
Susan Nial Re Neutral Zoning
Katherine Davis Re Acquisition Costs
June 19, 2008 Letter from Katherine Davis As to the Congregations Misrepresentations that up to 500 persons attend Sabbath services.

May 21, 2008. New web site and similar zoning fight in Greenwich Village.

The Rudin Organization and Friedman & Gotbaum are using the same concepts in the St. Vincent's proposal in Greenwich Village Historic District. The opposition has a new web site sponsored by Protect the Village Historic District at www.protectthevillage.com - there is a Community Board 2 hearing on May 22, 2008 at NYU commencing at 6:00 PM.

May 15, 2008 - New May 13 Filings by CSI

Shearith Israel continues to morph is application, but is May 13, 2008 filings with the BSA are basically a regurgitation of the past filings, and, is non-responsive and misleading in so many way as to be contemptuous of both the BSA and the Community. And, seriously, it has another false statements to justify an investigation by Scott Stringer - of course, that all depends on what you mean by the word "false."

Cover Letter dated May 13, 2008 from Friedman & Gotbaum to BSA.
CSI Revised Statement in Support - 65 pages.
Environmental Assessment date May 12, 2008 from ARKF (includes shadow studies). UPDATED JUNE 4.
Revised Feasibility Analysis of Freeman Frazier dated May 13, 2008.
Proposed New Building With Courtyard Plans of various dates - 17 pages of plans.
Revised Zoning Analysis Form.
As-of-Right-Zoning Envelope Section - Parsonage dated May 12, 2008.

May 8, 2008
New Items -New Transcript, FOIL, St. Vincents

Transcript. The transcript for the April 15, 2008 BSA hearing on Shearith Israel has finally been received from BSA.

FOIL Requests. We submitted two recent FOIL Requests to the BSA.

Secret Feasibility Study Revealed. We received a response from the first FOIL request of April 11, 2008 requesting documents concerning communications between BSA and CSI and site visits by BSA Commissioners. BSA responded with a claim that handwritten documents are exempt from the BSA. The response of February 21, 2008 disclosed the existence of two recent meetings between BSA Staff and CSI's feasibility consultant, Jack Freeman, and yet another "secret" submission dated February 22, 2008 from Freeman to BSA. The secret document was submitted prior to the April 15 hearing and never referenced by either the Commissioners or Freeman during the hearing, even while the opposition feasibility expert Marty Levine was objecting to the absence of a floor area schedule that it now appears was included in the secret submission. Freeman's cover letter makes it sound like he submitted this to the BSA in December -2007. Not true - this is another matter that Springer should investigate.

Springer could also investigate Shelly Freeman statement to the BSA claiming

"Accordingly, that is our preference as the Rabbi would like to avoid a repeat when community members complained (inaccurately) that submitting our application on the day of Passover Eve somehow violated Jewish Canon Law" (p. 20).

and claiming "I am just too nice a guy for this business." (p.16). Since we have a copy from the BSA of Shelly's Fedex receipt on Passover, is Shelly claiming that this does not violate Canon Law or that is is inaccurate that he served it on Passover.

Basically, the BSA board treats opponents as interlopers - they politely listen to statement and engage in very little dialogue - as opposed to the interactive engagement with applicant witnesses. When Levine objected to information concerning the sliver building, why did not one Commissioner advise Levine that CSI had covertly provided additional information on that subject.

BSA Rules Re Feasibility Studies. The second FOIL Request is dated April 22, 2008 asked for BSA rules and policies concerning practices followed by the BSA pertaining to feasibility studies, other than Item M of the "Detailed Instructions for Completing BZ Application." Since Freeman repeatedly claimed that his flawed analysis was the standard way of submitting feasibility studies to the BSA (even though Freeman did not come close to satisfying Item M,) we decided to ask for any other policies. So far, nothing has been received.

St. Vincent's. In a related matters, the Landmarks Preservation Commission rejected the initial plan by St. Vincent's Hospital Manhattan to construct a 329-foot tall hospital and a 265-foot-tall luxury condominium in Greenwich Village's Historic District, a setback for the Rudin Management Company and Shelly Friedman who are trying the same trick on West 70th Street. NYT Article, May --, 2008.

 

April 23, 2008

Recent items in the news - and Scott Stringer's interest in honest filings with NYC development agencies.

Scott Stringer Vendetta Against Landmark West
A Preservationist Maintains She Did Not Misrepresent the City, NY Times: April 12, 2008
This is so unbelievable - Scott Stringer and LPC initiated an investigation by the City's Department of Investigation because of supposed false statements made to the LPC - all targeted at Landmark West? Scott, give us a call. We have a whole list of statements made by the Congregation's consultants and representatives to the CB7, LPC, and BSA that deserve investigation.

Funny Business at DOB
As Construction Deaths Rise, Buildings Chief Faces Scrutiny, NY Times, April 22, 2008

Whether fair or not to now deposed DOB head Patricia Lancaster, the disclosure that DOB approved a building that violated zoning laws somehow did not surprise us.

Ms. Arnold [the department’s deputy commissioner for legal affairs ]said that the zoning for the site allowed for a 33-story tower atop a broad base, not the sheer, 43-story tower for which the developer received approval. In addition, the tower was found to be too close to an adjoining four-story building owned by the developer.

Scott, we have another idea for an investigation - DOB conduct in the matter of CSI

Developers Monkey With Architectural Drawings?
Now You See It, Now You Don’t, NY Times, April 20, 2008.
Scott, you are really missing the boat on investigations of misleading statements to NY City development agencies - just read the NY Times. Do you not think that the inherent misrepresentations reported in this article deserve an investigation? NYT Columnist Nicolai Ouroussof complains about developers tailoring architectural renderings for public consumption - actually to misrepresent the facts to the public and public agencies. But, again, let's sick the Department of Investigations on them - Scott, we invite you to direct your pit bull attorneys on this important issue. [This would be so easy for city officials to remedy - require developer to provide 3-D drawings in Google's Sketch-Up - easy, since all bit time architects now use CAD systems that can export to Sketch-Up in a flash.]

April 16, 2008

Yesterday was a most curious day at the BSA. In sum, the Congregation was sent back to start over and the next hearing is set for June 24, 2008. Landmark West attorney Bruce Simon objected to the Board that giving the Congregation another chance was an unwarranted do-over and that after a point, do-over's must stop.

Even so, the BSA pummeled the Congregation's financial consultant. So, why do we still see the half-empty glass? That's simple - the BSA knows full well that if it grants the variances for a tall building to accommodate the condominiums which CSI does not claim is related to any programmatic need, then BSA has a greater than even chance of have those variances overruled in an Article 78 proceeding. [If the Article 78 judge understands zoning, sees through the CSI contrivances and is not political, then the chances are closer to 95% that BSA would lose]. Whatever happened in the Article 78 proceeding, BSA would be inviting scores of religious entities in the outer Boroughs to do the same as Shearith Israel. I can just hear the Brooklyn synagogues and churches asking for equal treatment.. [Note: Appeals from variance decisions of the BSA are made to the New York State Supreme Court under Article 78 of the civil procedural rules aka CPLR.]

So, why is the BSA having serious discussions with the Congregation about the so-called courtyard compromise, which is not compromise at all? Such discussions would only make sense if the BSA were seriously anticipating granting the variances. Thus, the half empty glass - I have seen too many judges pummel a party and then rule for that party.

So, we keep preparing for our Article 78 and filing further contests to the Congregation claims, and hope that the Congregation sees the end of the road. Sadly, it is too bad the Congregation has not seen the light, for it could have started construction on its new community house and we would no longer have to look at a never cleaned stained facade and rusted air conditioners. I even dream of a series of lectures by leading Sephardic scholars being held once a week in a new lecture hall across from my residence.

No doubt because probably he was attending an LPC meeting re St. Vincent's, another Rudin-Friedman project, the Congregation's counsel Shelly Friedman did not show up at the hearing, and dropped the ball on the Congregation's feasibility consultant, Jack Freeman, the only speaker for the Congregation.

Freeman was then pummeled by BSA Commissioners as to deficiencies is his reports - the Board was critical of the Congregation's effort to boost land value by presenting a sliver building as the analytic model and questioned the basis of the comparables used by Freeman. Once Freeman was done, he received a further pummeling from the opposition economic experts, Marty Levine and Jim Mulford. Levine and Mulford showed that Freeman had ignored BSA rules for feasibility reports, rules that Levine opined were consistent with valuation practices in the real estate industry. One thing that the BSA rules, Levine and Mulford agree upon: there should have been a return on equity computation which would enormously increase the returns. That means that the project would not meet the requirements of 72-21.

Opposition architect Craig Morrison handily disposed of the Congregation's architect's weak defense of programmatic design issues.

Then Opposition attorney Jay Greer pounced on the Congregation's claims of programmatic need and proved that the driving motivation of the Congregation for the community house was to build space to meet the needs of the rent paying tenant Beit Rabban (est. $1.2 million a year rent) and a public income producing day care ("toddler")center, not program needs for the Congregation. This was handily illustrated with charts showing the metrics of student-hours-per-week and sq. foot usage. The point here is that if an as-of-right building satisfies the programmatic needs, then there is no variance. Further, it the needs are for income, not programs, then no variance.

There were other important submissions and statements; and no offense is meant to those not mentioned or to the important issues they presented. Send me your presentations and they will be posted.

Marty Levine Letter
Jay Greer Letter with Charts and Tables - Opp. Ex. LL
Jim Mulford Letter
Jim Mulford Presentation
KL Davis Presentation
Craig Morrison Statement
Kate Wood Statement
Susan Nial Second Letter Brief
Ron Prince - 18 West - Statement
Exhibit KK - Filed by ProtectWest70

April 9, 2008

With the April 15, 2008 hearing approaching, there is some confusion as to the Feasibility Studies presented by CSI consultant, Freeman Frazier. Since the initial filing by CSI on April 2, 2007, Freeman Frazier has submitted eight different versions of its reports with confusing terminology and inconsistent results. The obscure and confusing submissions serve to confuse, rather than clarify.

March 28, 2007 (29 pages)
September 6, 2007 (25 pages)
October 24, 2007 (21 pages)
December 21, 2007 (40 pages)
January 30, 2008 (3 pages)
March 11, 2008 (31 pages)
April 1, 2008 (8 pages)

The BSA requirement for a feasibility study are found in Item M of the BSA Instructions for Filing a BZ Variance Application.

The foregoing Freeman statements and other documents have been assembled and will be filed as Opposition Exhibit KK.

KK-1

Form BZ Instructions

KK-11

2008-02-12 Freeman Testimony from BSA Transcript Shearith Israel

KK-23

2007-02-28 Freeman Frazier  Feasibility Economic Analysis

KK-52

2007-09-06 Freeman Frazier Letter to BSA

KK-77

2007-10-24 Freeman Frazier Letter to BSA

KK-98

2007-12-21 Freeman Frazier Letter to BSA

KK-138

2008-01-30 Freeman Frazier Letter to BSA

KK-141

2008-03-11 Freeman Frazier Letter to BSA

KK-172

2008-04-01 Freeman Frazier Letter to BSA

KK-180

2007-10-24 AOR Scheme C Drawings

The relevant portion of 72-21 of the Zoning Resolution relating to the feasibility issue is finding (b) which states:

(b) that 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;

A serious problem with the Freeman Frazier study is that it does not take the time to cross reference its many many tables and computations to specific drawings from the architect. Item M requires that financial analyses provide among other things analyses for "existing, complying, and proposed condition." No financial analysis for existing conditions has been submitted - this would show the current income form Beit Rabban. As to the "complying' condition, there now seems to be a dispute as to what is the "complying" or "as-of-right" condition.

Until October the "as-of-right" conditions were shown in the As-of-Right Scheme Drawings submitted on October 27, 2007 - similar to the AOR drawings submitted on April, 2, 2007.

As-Of-Right-Scheme-A Drawings
Lesser Variance -Scheme-B Drawings
As-Of-Right-Scheme-C Drawings

The last scheme, As-Of-Right Scheme C is an all residential scheme, and, so as to completely confuse everyone, Freeman Frasier -we think - also call this the "All Residential FAR 4.0 Scheme." But, they are so sloppy, or perhaps so deceptive wishing to confuse, that they play fast and loose with their cross-references.

As-Of-Right Scheme C aka All Residential FAR 4.0 Scheme is the benchmark scheme for the 72-21 findings. To be clear, under finding (a) CSI has to show that there are unique physical conditions. They have not done this.[They try to assert that a unique site condition is the same as a unique physical condition. It is not. But, they do not show a unique site condition either). Assuming they did, next under finding (a), CSI has to show that there is a hardship directly related to the unique physical conditions. They have not done this either. Since CSI is proposing a profit-earning building, assuming it satisfied (a), it would have to show that the financial nature of the hardship under finding (b). It would have to show that if the property were developed to its best use, it would be unable to earn a profit. That is where the feasibility study comes in, and, that is why the As-of-Right Scheme C is so critical. If that earns a profit, then CSI could not meet finding (b) either (of course, CSI cannot satisfy any part of finding (a).).

Subsequently, at a hearing, one of the BSA Commissioners was coaching CSI in how to get around the fact that the feasibility studies were not supportive of the CSI position, and suggested that CSI prepare an all residential condominium analysis as if the upper condominium floors were a separate project. See BSA Transcript of November 27, 2007 at pages 26 and 27.

This then resulted in the 'sliver scheme" wherein suddenly, CSI now claimed that an as of right building was not the FAR 4.0 schemes shown in April and October, but was a scheme that included a 17 floor tower on the 17 foot strip of land in the R10A zoning district adjoining the Sanctuary. Freeman Frazier needed this different building so that it could fabricate an analysis to show that an all residential building would show a loss. But, despite specific requirements of the BSA BZ Instructions, CSI did NOT provide drawings for this sliver building - making it impossible for anyone to analyze the critical issue of loss factor and making it IMPOSSIBLE for an honest construction valuator to provide construction cost estimates. Of course, one now wonders how an HONEST feasibility study could proceed without these drawings.

[check back - this above comment is not complete]

April 2, 2008

We received today yesterday's filing to the BSA of the Congregation's response consisting of a mere 12 pages. The obvious tactic was to either distort or ignore inconvenient points raised by the opponents: for example, the request of an inspection by the opponent's architect, first made on February 21, 2008, was just ignored. The BSA hearing is scheduled for April 15, 2008.

Submission by Congregation to BSA (complete).
Cover Letter of Friedman & Gotbaum of April 1, 2008.
Freeman & Frazier (Feasibility Consultant) Letter of April 1, 2008.
Charle Platt (Architect) Letter March 28, 2008.

March 28, 2008
Just Posted - Report of BFJ Planning Re the Ramaz Project commissioned by The Coalition to Oppose Ramaz Tower.

March 27, 2008

When involved in disputes relating to planning and zoning, words do not always suffice. To elucidate important issues, ProtectWest70St.org helped create two new graphics which were filed March 25 (see listing of all filings below or in right column). These new graphics illustrate the lack of substance to two main arguments of the Congregation.

As background, obtaining a variance from the BSA is all about showing hardships - and if the hardships relate to the disabled, the very young, or to religion, all the better to gain sympathy and ward off incisive questions. The Congregation's case rests in part on showing that the existing and as-of-right buildings are inadequate to resolve alleged serious circulation and ADA access problems and that the buildings are unable to accommodate the Congregation's programmatic needs, and thus only the variance-requiring proposed structure will meet those needs. [At the same time, the Congregation concedes that the only purpose of the waiver for extra floors in the proposed building is to build market rate condominiums so as to fund the Congregation.]

Those attending the hearings have heard sympathetic stories as to access. With ProtectWest70.org graphics at prior hearings, opponents have been able to expose the illegitimacy of the claims that resolving circulation and access "hardships" have anything to do with this variances requested.

The new graphic outlines in red all of the areas in a proposed building required to accommodate the asserted access and circulation needs of the Congregation. All such areas are on floors 1-4 and the basement, and consist of a small lobby and an ADA compliant elevator to provide access from the street level to the sanctuary. What is also true is that both the As-Of-Right and the Proposed schemes resolve the access issues in an identical manner.

So, if both the As-Of-Right and Proposed schemes address access and circulation in an identical manner, what then do these issues have to do with the variances? Nothing - but it was a good try, and had many fooled for a long, long time.

It is true that in the existing building, there is an elevator, installed in 1954, with one big problem - it does not provide access to the lower floor Levy Auditorium. This is indeed a problem, one that has existed for years and that could be solved two ways: retrofit the existing elevator which is feasible or construct the as-of-right building with a redesigned elevator, but what is not needed to accommodate access are any variances or the proposed condominium floors .

But, the argument does not end there - for the Congregation then argues that a substantial hardship exists on the site, because of the need to provide access and circulation facilities (i.e., an elevator) to the historic landmarked religious Sanctuary, and this can only be provided in a new building. Thus, the argument goes, the Congregation cannot achieve an economic return from the site because of the hardship in providing access to the Sanctuary.

The graphic shows that the Congregation could easily have its cake and eat it too with the 100 by 64 foot site. If it wished, it could build an all residential building on the site, earning millions of dollars, but just carve-out space in a few places, shown bounded by red in the drawing, so as to satisfy these access needs. For variance purposes, the Congregation's access arguments have become big losers.

The second graphic relates to the Congregation claim that it faces a hardship in meeting its programmatic needs for classrooms; they claim an as-of-right building is not sufficient. In support of this argument, the Congregation recently submitted an analysis to show that insufficient space for classroom existed on floor 2, 3, and part of the the 4th floor on a 6 story as-of-right building. But, it is not a hardship under under variance law if the needs can be met elsewhere on the site.ed

The graphic illustrates all of the other areas (in blue) on the zoning site which are available for educational programmatic needs, which the Congregation would like to have the BSA ignore. In the as-of-right building, there are two top floors that are available, but the Congregation wishes to sell that space as condominiums. The Congregation wishes to half of the 4th floors as a caretaker's apartment - 1200 sq ft new apartment with views of Central Park and two bedrooms, rather than pursue other options, such as the parsonage space shown in blue. The other available spaces and related issues are discussed in the recent March 25 submissions of Jay Greer, Craig Morisson, and Alan Sugarman.

March 25, 2008

Today, the following statements were filed with the BSA in opposition to the application of Congregation Shearith Israel. The response of the Congregation are due April 1, 2008. The next BSA hearing is scheduled for April, 15, 2008.

Statement by Alan D. Sugarman
Opposition Exhibits
GG - Drawings Classroom Space and Access
HH - Re Beit Rabban IRS Form 990 and Rent
JJ - Re Classrooms, Toddler Program
Statement of Martin B. Levine Metropolitan Valuation Services (re Economic Feasibility)
Statement of Landmark West - Kate Wood
Attachment to LW Statements - Soft Sites CPW
Statement of Mark Lebow
Letter Brief of Susan Nial, Esq.
Statement of Craig Morrison
Grubb & Ellis Appraisal re 18 West
Letter of David Rosenberg re DOB and Jurisdiction
Statement of Jay Greer re Classrooms Programmatic Need
Statement of Jay Greer re Funding of Religious Organizations

March 12, 2008

Yesterday, the Congregation provided its latest display obfuscation in its filings to the BSA - still not responding to requests made repeatedly by the BSA.

In another transparent act to limit information access by the opponents, the Congregation did not as a courtesy provide copies of the documents to the Opponents on the due date.

Opponents were forced to send an intern to BSA late Tuesday afternoon to the BSA offices.

The Congregation did serve a copy a day late by hand, but, late is late.

Shelly Friedman is becoming boringly predictable in his discourtesy and lack of transparency as to serving documents. As noted below, he is even is throwing a fit about a normal request to have the Opposition's Architectural expert inspect the Congregation's zoning site.

The following documents were filed by the Congregation on March 11, 2008:
Cover Letter dated March 11, 2008 from Friedman Gotbaum.
Letter/Report from Feasibility Consultant Freeman Frazier.
Letter/Report from Planner Consultant AKRF.
Program Usage Chart
Modified Proposed Drawings - Re 18 West Windows
Zoning Maps
Lebow-Friedman Letters with Drawing Shown at BSA hearing.

March 10, 2008

While we wait for the submission of the Applicant due March 11 to see if Applicant is able to respond to the questions of the BSA and to submit information that should have been in the finial April, 2007 Application, some update and additions have been made to this site.

The Drawings/Renderings page has been updated and corrected by adding missing drawings.

Recent Correspondence Added:
Letter February 21, 2008 Mark Lebow to Shelly Friedman
Letter March 4, 2008 Shelly Friedman to Mark Lebow
Letter March 7, 2008 Alan Sugarman to CB7

 

February 12, 2008

The Second BSA Hearing was held on February 12, 2008. Opposition Filings included:

Transcript - posted Feb. 25, 2008
Statement by Alan D. Sugarman
Report by Craig Morrison Opposition Architect
Report by Marty Levine Opposition Valuation Expert
Statement by Jay Greer
Statement by Bruce Simon
Statement by Kate Wood Landmark West
Statement by Assemblyman Thomas Duane
Statement by Architect Melvin White re 91 CPW
Floorplan of 91 CPW
Statement of Otis Pearsall
Statement of Elliot Sclar Re Contextual Zoning
18 West Window Analysis (to be provided)

Short summary - There is an Alice-In-Wonderland feeling about these hearings. Even though there are clear findings that must be made by the BSA for each of the variances requested, at times it was hard to see how the Applicant's claims related to any particular required finding. Rather, the intent of the Applicant seems to be to confuse and complicate and avoid relating particular arguments to particular findings. Moreover, even though the Applicant Congregation is asserting financial need, the BSA Commissioners act as if they wish neither to see or hear any evidence from the Applicant as to such financial need, nor to see or hear any evidence from opponents as to the lack of financial need. This even led to Commissioner Collins taking the position that financial resources available to a religious congregation from it trustees and members was not of relevance when the religious congregation was asserting financial need, apparently concluding that the principle implicit in the biblical commands of tithing were of no meaning in the modern world. Finally, the BSA sees its mission as to finding ways to grant variances, and providing repeated chances to an Applicant to file basic information, devising "creative" interpretations of the zoning law, and even inviting the Applicant to run out the clock. This Ap pliant appears so incompetent, but, of course, its skilled attorneys and consultants are not incompetent - this is an exercise in making the simple complex and obfuscating the facts, and the BSA plays along.

February 4, 2008

On February 4, 2008, the Congregation filed a 3 page response to the BSA, together with a 4 pages statement by Charles Platt, its architect of Platt Byard Dovell White and a 3 page response from its valuation expert, Jack Freeman of Freeman Frazier.

The letter with attachments are available here:

February 4, 2008 Letter from Friedman & Gotbaum, attorneys for the Congregation, to the Board of Standards and Appeals, with Platt and Freeman attachments.

February 4, 2008 Friedman & Gotbaum - letter only.
February 4. 2008 Platt Letter
January 30, 2008 Freeman Letter

A hearing is scheduled at the BSA for Tuesday, January 12, 2007 at 1:30 PM.

January 28, 2008 - Community Response to Congregation

Community opponents on January 28, 2007 filed with the BSA a comprehensive response to the December 28, 2007 Congregation filing. Landmark West retained architectural and appraisal consultants to prepare reports.

The following documents were filed:

Cover Letter of Mark Lebow
Statement in Opposition Prepared by Landmark West
Statement in Opposition by Alan Sugarman
Report of Architectural Expert Craig Morrison
Report of Valuation Expert Martin Levine of MVS
Opposition Exhibit Binder I (Large File: 11 MB)
Affirmation Describing Exhibits in Exhibit Binder

December 28, 2007 - New Submission from Congregation Shearith Israel.

*Cover Letter Dated December 28, 2007 from Friedman & Gotbaum to BSA.
*Response Letter dated December 28, 2007 from Friedman & Gotbaum to BSA.
Exhibit A - Deeds.
Exhibit B - 1984 City Planning Commission Reports re Mid-Block Zoning.
*Exhibit C - Fourth Revised Feasibility Analysis by Freeman Frazier.
*Exhibit D - Programmatic Diagrams PR E-6-10 and PR P-6-11.
Exhibit E - Map re building in R10A/R8B.
*AKRT Summary Explaining Why Shadow Study Not Submitted.
*Revised Versions of Prior Drawings P-3,P-7,P-9, P-10.
LPC Transcripts (to be posted later).

December 4, 2007 - CB7 Transcript

Transcript - 4 to a page
Transcript - 1 to a page

December 7, 2007 - BSA Transcript

Landmark West has obtained the 81 page transcript of the November 27, 2007 BSA first hearing re Shearith Israel - for which BSA charged $4.00 a page. Current procedure is some federal courts now: transcripts are posted on the court web site, charge is $.10 a page with a 30 page maximum, or $2.40.

December 6, 2007

Community Board 7 at its Tuesday December 4, 2007 meeting voted to oppose all of the seven variances sought by Congregation Shearith Israel, even opposing two variances that had been approved by the Land Use Committee at is November 19, 2007 meeting. See Land Use Committee Minutes and Resolution. The next stop will be BSA hearing on February 12, 2008 - and, the BSA has been known to ignore Community Board positions on variances.

The evening was a deflating blow to the Congregation, especially the full Board's opposition to two variances that had been approved by the Land Use Committee. Co-Chair of that Committee, Richard Asche, acted as the chair for the part of CB7 Tuesday session related to the Congregation. Prior to the meeting, community opponents had agreed with CB7 to limit their presentation to 15 minutes, with a group presentation, and not limiting any one speaker to the standard 2 minutes.. Once Asche took over, the rules changed. The Congregation did not give a presentation (very unusual) and so Asche abruptly started calling names in random order for community speakers, without calling on the Congregation to state its position. Community opponents objected to this aberrant procedure - but Asche persisted. Even so, not to be deterred, opponents scrambled and were able to get their main points across, all the time being harassed by the clock. When opponents were done, Asche then asked for comments from the Congregation - but, they were speechless by then. Nonetheless, even the two variances shepherded through the Committee were effectively challenged by other CB7 board members. It would seem that the Community Board should encouraged focused community presentations, but, that is not what happened Tuesday.

November 27, 2007

Then, a week later on November 27, 2007, the BSA held it first hearing defying CB7 which, was, from the Congregation's point of view a big let down, After three attempts to submit a variance application, some BSA commissioners seemed not to be buying the Congregation's application. So, the BSA is giving one more chance to the Congregation to submit the needed information - until December 26, 2007, and set the next hearing for February 12, 2008. The Congregation's economic consultant has now earned the moniker "Ghost" Freeman, this being the third straight hearing where he uttered not a work in defense of his cookery. The Congregation's attorney, Shelley Friedman lamely admitted that he had no legal precedent at all to support the claim for a variance, also managing to rise to new heights of not credible statements (to be documented in a later posting).. And the architects, who are still carrying around an admittedly inaccurate two year old model, also provided their own lameness - a pious description of the handicapped access problems in the current community building, forgetting to note that the resolution of all these problems was provided by the as-of-right plans - thus it was a presentation completely irrelevant to the application. Not to be outdone, Congregation officials provided similar over the top sympathy invoking descriptions of problems with the current building.

Community opponents mounted an aggressive and powerful attach, highlighted by the moving statement of Norman Marcus, dean of New York City zoning. Landmark West's attorney Mark Lebow smoothly laid bare the Congregation's application, the backed up by a number of polished presentations by other lawyers who live in the Community. Residents of 18 West pointed out the impact of bricking up their windows. Landmark West submitted this opposition statement.

Statement of Senator Thomas Duane and Assemblyman Richard Gottfried presented strong statements opposing the variances - notable by their absence was Manhattan Borough President Scott Stringer and Council Member Gale Brewer who, it seems, back the Congregation, but, are afraid to come out and state their position, perhaps realizing that most of their constituents flatly disagree. The political nature of the process was underscored by East Side Attorney Linda Blumkin who confronted the Board with a recitation of Shelly Friedman bragging about basically, how, the Congregation had the Bloomberg administration behind them. Recall Peter Jennings.

The LPC approval we know was a pure political act and then we have the ex parte meetings and the BSA ignoring scheduling rules in the City Charter. The BSA Chair refused to recuse herself, admitting to the ex parte meeting, but defending the meeting on the grounds that the application had not been filed, and she had offered a similar meeting to me. New rule of judicial ethics: it is okay to meet privately with the judge to discuss your case if you do it before the case is filed and then wait a few weeks before filing. Extraordinary. Plus, the Mayor's Office seems to think this is okay to. (One would think that ex-Attorney General would feel at home with this approach to the law.)

So why are we concerned: in the real world the application would have been rejected two days ago. The applicant has not facts to support their position and no legal theory. After three objection letters from the BSA, the applicant still has not provided basic information and continues to shift positions and theories. So, why is this pain continuing?

November 29, 2007

The Congregation Kehilath Jeshrun/Ramaz project on East 85th Street was the subject of more New York Times reporting (Condos Above Classrooms Strike Some as an Odd Mix, November 11, 2007) and letter (Battle Over Air Rights on the Upper East Side - Linda Blumkin, November 25, 2007). The BSA Chair bristled when the Ramaz project was mentioned at the Shearith Israel hearing - strongly stating that these were two unrelated projects. Of course the are not - these are the stalking horse projects of other non-profits and the New York City developers.

November 19, 2007

The CB7 Land Use Committee voted to oppose most of the variances at its November 19, 2007 meeting. See the transcript. See Land Use Committee Minutes and Resolution.

 

November 16, 2007

BSA seems still to be intent in proceeding with its irregular meeting and to be ignoring the serious issues raised by the improper ex parte meetings. In the meantime, we have received a copy of the opposition statement submitted to the BSA by Ross Moskowitz of the firm Stroock on behalf of the 111 East 85 Street Owners, Inc. concerning the Congregation Kehilath Jeshrun/Ramaz project on East 85th Street (see November 11, 2007 NY Times Article). This project is similar to the Shearith Israel project, and the institutions are represented by the same law firm used by Shearith Israel. The Opposition parallels many of the same augments raised against the Shearith Israel project. Included with the statement is an economic analysis by Metropolitan Valuation Services demolishing the study provided by the institutions. The same fallacious reasoning is used and the report concludes:

There is a critical flaw in the methodology employed in the Feasibility Study. Charging the developer for almost twice as much developable square footage in the "as of right" scenario is an egregious error.

November 15, 2007

We are catching up on postings and organizing documents. More to come. We are attempting to compile a consolidated set of the Congregation filings with the BSA. The October 27 filing supersedes some prior filings, supplements other prior filings, and leave some untouched. The real piece of work is the so called economic Feasibility Study. It is now spread out over three documents, providing ultimate flexibility to bob and weave. An example of bobbing and weaving is the Congregation's position on the legal basis for even submitting the feasibility study. At the hearing on October 17, 2007, the Congregation said it was not submitting the study as a basis for a finding under 72-21 (b), but under 72-21(e): then, on October 27, 2007, they submitted their Second Revised Application in which they claimed the study was relevant to a (b) finding. Their problem is that the study does not meet the requirements of either finding, so they do not wish to present a fixed target.

November 15, 2007

The Board of Standards and Appeals intends to continue down its course to hold its premature meeting on November 27, 2007, and, in the meantime its new General Counsel wrote a letter to Assembly Member Gottfried asserting its rights to hold ex parte meetings in a quasi judicial proceeding. Quasi judicial means "like a court" and so the BSA now says it is just fine for a party in a case to have a private meeting with the judge to go over the theory of the case prior to starting the case. How extraordinary. The BSA is willing to fall on its sword for the benefit of the New York City zoning lawyers. We responded yesterday with a letter to the BSA inquiring about whether the on-site visits conducted by the Commissioners constituted ex parte meeting if, as is assumed, the applicant shows the Commissioners around. We are waiting. Search for recusal on this site and you will find other letters relating to this issue.

In another chapter of the Congregation's openness with the Community and sharing information, an October 31, 2007 letter from Freidman & Gotbaum made it way to us yesterday via a city agency. We were copied, but, for some reason the letter never got to us. The Congregation, which is building a 6000 square foot sub-basement banquet hall with sub-standard exits, claims that 9/11 security precautions prevents it from turning over the information. The real message from the Congregation is that they will only turn over information required by the BSA, and, that the Community should trust the BSA to extract the information from BSA. This is the agency that Frediman & Gotbaum described as the "easy" agency - the same BSA that holds secret meetings with the Congregation and will not turn over the notes of their meetings. This is a hysterical letter. Clearly, the Congregation is most fearful of the sharing of information with the community and to efforts such as this web site.

We also have the complete lack of scrutiny provided by either DOB or BSA to the banquet hall. A piece of news this past week concerned the DOB's intention to revoke of a permit for a banquet hall at the Third Church of Christ, Scientist at 583 Park Avenue. The DOB did not actually revoke the permit, but stated that the facility appeared to be a commercial catering facility and is not an accessory facility. We note that the Levy Auditorium under the Sanctuary has been reduced in size over the years due to extra rooms cut out of the main assembly room. We also note that the Congregation, rather than use the Parsonage for offices etc., is renting the Parsonage as a private residence on a commercial basis. So, move the offices off the Levy Auditorium to the Parsonage, and the Congregation would have its assembly area.

November 2-6, 2007

Mark Lepow, President of the 18 West 70th Street Cooperative has written a letter to Community Board 7 urging CB7 to press the BSA to delay its hearing. Lepow argues that all of the delays are a result the non-responsive and inaccurate submissions from the Congregation and points out to the Community Board that the description of windows blocked by the project are still not accurate, even after two objections by the BSA.

October 30, 2007

Mark Lebow has written a strong letter to the BSA objecting to holding a hearing and asking that the BSA hearing be delayed until the Community Board may deliberate upon the matter.

October 29, 2007

The BSA issues a notice of hearing for it first hearing on Congregation Shearith Israel for November 27, 2007. The only problem is that the BSA rules requires 30 days notice.

Under pressure from the BSA, CB7 announced a meeting of the Land Use Committee for November 19, 2007 and a meeting of the full Board on December 4, 2007. Yet, the City Charter and the rules of the BSA provide a community board 60 days to review the matter.

The BSA hearing is being improperly convened - see summary of rules violated.

Why the rush. ProtectWest70.org today sent a letter to BSA objecting to the entire procedure and pointing out numerous deficiencies. The letter include highlights of the October 17, 2007 CB7 pre-hearing transcript, including Shelly Freidman bragging about how the project has the imprimatur of the Bloomberg administration. According to Shelly, we all should go home, and the BSA should stamp the project approved, since it has all been decided.

October 29, 2007

Stay tuned. The BSA's Initial Hearing in this matter is set for November 27, 2007, perhaps. But, the CB7 has 60 days from the substantially complete application to consider the matter.

October 27, 2007.

Yesterday, October 26, 2007, CSI filed with the BSA a re-revised application, but, neither CSI nor BSA did not bother to provide copies to anyone. As of this afternoon, copies of the entire package had not been provided to either the Community Board or to Landmark West. Missing as of this time is the revised Feasibility Study and the revised Drawings

Landmark West sent an intern who retrieved second revised application from the BSA late Friday. The documents were stamped at the BSA Thursday, at 2:00 P.M. - despite promises made, neither the BSA nor the Congregation advised CB7 or Landmark West of this filing -until LW learned of it Friday afternoon..

It also appears that the BSA rushed ahead in an instant to schedule the first BSA hearing for November 27, 2007, it would seem without even reading what was submitted to them. This of course puts the Community Board in a predicament. The BSA had not scheduled the first hearing previously, because the Application was not deemed substantially complete. The Community Board is provided 60 days after a substantially complete application is filed to hold its meeting. Yet, the BSA has rushed ahead to schedule a hearing, even before the Community Board even received the package, and then scheduled a hearing only 30 days into the 60 days allowed to the Community Board.

Redlined Version of Second Revised Application.
Clean version of Second Revised Application.
As Filed With Stamp Second Revised Application.
Second Revised Feasibility Study.
Explanation of Response to Objection.
Drawings:
As-Of-Right-Scheme-A
Lesser Variance -Scheme-B
As-Of-Right-Scheme-C
Proposed Scheme


October 17, 2007.

Despite our initial misgivings, the Community Board meeting this evening was an excellent example of community consideration of a complex project. The comments and statements were thoughtful and focused. This was considered to be a preliminary meeting. We presented some of the following Power Point Presentation slides (six to a page condensed version here). We will have a transcript within a few days.

There had been misunderstandings as to the purpose of the meeting. It was suggested initially that this would be the actual hearing, when, in fact, it was a preliminary hearing, used to familiarize the Committee with the project. Penetrating questions were asked by the Committee members, many which the Congregation was unable to answer. Perhaps the Congregation's attempt to stampede CB7 may not have had the anticipated outcome for CSI.

Statements Submitted to CB7 Land Use Committee:
Landmark West - Kate Wood
Mark Lebow, Esq.
Alan D. Sugarman (summary)
Alan D. Sugarman (PowerPoint-6-up)
Mart Hartnett (PP re Financial Resources)
James Greer
Bruce Simon, Esq.
Jean Adams

October 16, 2007

Without any rational basis, Community Board 7 has decided to proceed with consideration of the Congregation's application to the Board of Standards and Appeals, even though the BSA has concluded that the application is incomplete and facially erroneous, so much so that the BSA will not even calendar the matter. See letter to CB7 dated October 15, 2007.

Some would conclude that CB7 is contemptuous of the BSA since the BSA is the determining authority. CB7 is thus considering an incomplete application, in fact an application that the BSA has found is wanting and inadequate and filled with inaccurate statements. This is nothing new. Last time around CB7 approved for landmark purposes a building with no setback from the property line when the model presented to them had a setback and never bothered to require meaningful perspective drawings. Why be bothered with the facts or logic or the law? Full steam ahead.

October 12, 2007

BSA has just issued new objections to the Congregation. We have not analyzed them yet, but, it would seem not appropriate for CB7 to hold its meeting without a complete application.

October 2, 2007

Following is the CB7 notice of the October 17, hearing:

Wednesday, October 17, 7:00 PM At Congregation Rodeph Sholom, 7 West 83rd Street (Central Park West)
6-10 West 70th Street (Central Park West.) Application to the Board of Standards & Appeals by Congregation Shearith Israel for a variance to waive lot coverage (R8B & R10A portion), rear-yard-interior lot (R8B & R10A portion), building & base eight setback (R8B portion), and rear setback (R8B portion) in order to construct an 8-story (plus penthouse) mixed-use building.

October 2, 2007

Landmark West has alerted us to the availability at New York Law School's web site of a 50 minute video a September 21, 2007 talk by BSA Chiar Meenakshi Srinivasan, in which she discusses variances and religious institutions.

September 27, 2007

Although Community Board 7 (CB7) apparently has scheduled a meeting of its Land Use Committee to consider the CSI revised September application, today Landmark West opposed hearings until such time as the CSI adequately responded to the June objections of the Board of Standards and Appeals. Claiming that there should be no Community Board meeting until CSI had filed a complete application, attorney Mark Lebow with his letter to the BSA and CB7 provide an analysis by planner Simon Bertrang detailing the deficiencies, and also cited Alan Sugarman's opposition of September 19, 2007. Earlier, on behalf of the community, Bertrang and Sugarman had filed detailed objections to the April CSI initial application.

September 20, 2007

Today's New York Sun published an article "A Classical Gem of Central Park West", by Francis Morrone criticizes the the Landmarks approval of the design. Morrone writes:

The city's oldest Jewish congregation, Shearith Israel, wishes to put up a modernist residential tower next to its landmark synagogue. The synagogue, which fronts on Central Park West, may be the most beautiful in the city. That makes any appendage to it a matter of urgent public concern.

September 20, 2007

Ramaz KJ Project East 85th Street: Friedman & Gotbaum Mounts Effort to Gut the Zoning Laws on East 85th St.

Who could imagine that the Congregation Shearith Israel's application of variances was the stalking horse for a City wide effort to dismantle the zoning law ... read more

September 19, 2007

ProtectWest70.org today has filed a 25 page preliminary opposition statement with the BSA together with a cover letter describing the failue of the Congregation to respond to the BSA Objections in a complete manner and the new issues raised by the Revised Application by the Congregation. Because of the great number of questions raised, we feel that neither the BSA nor CB7 should even schedule meetings or hearings until the Congregation provides all relevant information.

Update:
Redlined Version of Revised Application to Initial Application showing location of responses to BSA Objection Letter.

September 11, 2007

Shearith Israel filed new documents in support of its application for a variance on September 10, 2007, typically, two days before a major Jewish obervance - Rosh Hashonah. The document have been scanned and may be downloaded - see the right column.

SAVE TIME: DOWNLOAD All DOCS IN ONLY TWO FILES
All Drawings Sept. 2007 - 5MB
All Documents Sept. 2007 - 2MB

July 9, 2007

Community Board 7 has now "decided" to postpone the meetings on Shearith Israel to September. The fact is that Shearith Israel has yet to provide the revised application required by the BSA But the questions are "Why did Community Board 7 wait so long to do the obvious? Did Community Board 7 believe that one week was sufficient notice and time for the 'community' to review what is expected to be long and complicated revisions?" CB7 needs some cujones - scheduling meetings prior to the developer submitting its application material is being too accommodating to developers - at the expense of the community. Amazing, is is not? So what is really at work here - Shelly Friedman promised his client that he would get the BSA approval by year end. So, CB7 was helping out Shelly so that perhaps he could satisfy this promise, leaving open the possibility of BSA hearings in September. Well, that is not going to happen.

July 3, 2007.

Community Board 7 has rescheduled the Shearith Israel Land Use committee meeting to July 18, 2007. Given that the BSA bounced the Congregation's application in all but name only, it is entirely unseemly for the Community Board to reschedule the meeting when fundamental components of the BSA application have been seen by no one. The Congregation flaunted many clear and unambiguous BSA requirements and there is no reason why the public's opportunity to review the proposal is being curtailed in order for the Community Board to accommodate the missteps of the Congregation.

Landmark West has sent the Community Board a strong letter requesting that the matter be dropped from the July 18 agenda. Landmark West also provided a succinct memorandum by planner Simon Bertrang, explaining the zoning issues raised by the application and by the BSA objections.

June 20, 2007 - New Objections to CSI Project filed.

Today we filed with BSA 65 new objections to the Congregation's April 2, 2007 application for zoning variances. To obtain a full understanding of the BSA and Community Objections, we have prepared a version of the April 2, 2007 application into which is interpolated the BSA and Community objections. This makes the objections understandable.

Letter with short version of objections.
The BSA and Community objections in context.

June 18, 2007 - Meeting Postponed.

Late this Monday afternoon, the agenda for Community Board 7 was updated to state that the agenda item for Shearith Israel is being postponed. The BSA basically is requiring a new filing from Shearith Israel.

They are now trying to put this on for July 18, but wait and see.

June 15, 2007 - BSA issues Objections.

Late Friday Afternoon, the BSA issued objections to the Shearith Israel BSA Application, basically requiring a resubmission of its application. Given the number of changes requested by BSA, one would guess that the matter will not be on the June 20, 2007 hearing.

We will have comments. The BSA staff was able to point out in a methodical way many attempts of the Congregation to confuse and obfuscate.

We think the BSA has adopted the proper approach: it will not hold it first hearing until after the application is coherent, has a colorable theory, meet jurisdictional requirement, and complies with the significant rules as to such applications.

We will have an analysis posted later.

June 7, 2007
Community Board 7 Sets Meeting

As is now routine in all matters Congregation Shearith Israel, we have another last minute hearing announcement, so as to accommodate the schedule of the Congregation's attorneys. CB7 today just amended its agenda for the June 20, 2007 meeting of the Land Use Subcommittee. The agenda was amended to include the consideration of the Congregation Shearith Israel application to the Board of Standards and Appeals for a variance from zoning laws, which otherwise would limit the height and other aspects of its proposed condominium/community building.

The meeting will be at 7:00 PM at the Congregation Rodoph Sholom, 7 West 83rd Street. Speakers are limited to two minutes. There are many topics to cover. Please e-mail me at sugarman@sugarlaw.com if you wish to know what topics are not yet covered by other community speakers. See below re 18 West 70th Street residents.

The Congregation's application to the BSA was filed on Passover eve, April 2, 2007 and then served by the Synagogue on CB7 on the first day of Passover. With complaints about this lack of courtesy as well as the many problems in the application, the CB7 meeting was delayed. Ordinarily, the BSA rules would have required the BSA meeting prior to June 2, 2007.

Subsequent steps in the process will include the full Board Meeting of CB7 (July 10?) and then the BSA hearing. The BSA must first determine that the application is substantially complete; but, that finding by the BSA has not been made. Attorneys for the community and Landmarks West have been busy pointing out these deficiencies and attempting to assure an open and transparent process. We have also requested recusal of two BSA commissioners for an improper ex parte meeting with CSI. BSA is stonewalling FOIL requests. A full correspondence file is here.

The application statement itself (see right column for list of documents) is extraordinary. After a lengthy discourse about the history and traditions of the Congregation and Jewish Law and customs, the Congregation concludes:

All of the requests for relief presented in this Application are directed toward alleviating the hardships caused to that mission by the literal application of the cited provisions of the Zoning Resolution.

"That mission" is of course means the tradition etc. of the Congregation. " The "hardship" referred to is the hardship that the Congregation cannot use non-zoning compliant condominiums to provide a free community house to the Congregation. What this sentence really says is "We deserve an exemption from zoning law because we are who we are." The concept is that the Trustees are holding up a grand tradition. But are the Trustees holding up tradition.. Read more...

Residents at 18 West 70th Street who will have their windows, light, and air blocked if the variance is granted should know that this is there best chance to block the variance based upon finding (c) - for the variance will certain impair the use of your apartments. There is no reason why your apartments should be devalued and impaired so that members of the Congregation do not need to finance their own community center.

April 26, 2007
Three weeks have elapsed since the Congregation filed its application on Passover eve, but, still, no news as to the Community Board 7 hearings. The word is that counsel for the Congregation, after working on the application for over a year, need more time!!

In the meantime, serious questions have been raised as to the adequacy of the Congregation's application including an interesting question - the DOB Objection Letter filed by the Congregation is dated in 2005, even before the LPC turned down the penultimate proposal -- Magic!

 

April 10, 2007

Stop West 70th Request Recusal of BSA Commissioners

It seems that in New York City, in this pro-development administration, that anything goes, and, among other things, basic administrative law is being tossed over the side. The ex parte meeting between two of the BSA Commissioners is just improper. On April 10, 2007, we delivered a letter to the BSA asking that the Chair and Vice Chair recuse themselves.

April 2, 2007

Shearith Israel Files for Zoning Variance on Passover Eve

Demonstrating its respect for Passover, late on the afternoon of April 2, 2007, just as many were preparing for the Pesach Seder, Congregation Shearith Israel filed its application for zoning variances with the Boards of Standards and Appeals. The purpose of filing at this particularly time evidently was to jam Community Board 7 into having the hearing on the matter held at its May 1, 2007 meeting, since the CB7 meeting for June would be more than 60 days after the filing with BSA. Even worse, this maneuver jams the CB7 into holding the important Committee hearing even sooner.

CB7 needs to immediately notice the Committee hearings. Sheldon Fine, the chair of CB7, was not available for comment on April 3 and 4 due to the observance of Passover.

Some question whether the service of these documents on Passover was a violation of Halakhic Law.

The documents filed are listed at the top of the column to the left.

 

 

March 23, 2006

New Group to Reform Landmarks Preservation Commission To Hold Press Conference

On Monday, March 26, 2007 on the steps of City Hall, the Citizens Emergency Committee to Preserve Preservation (CECPP) will hold a press conference on the steps of City Hall concerning the qualifications of LCP commissioners. The CECPP has been putting pressure on the Bloomberg administration to restore the LPC to a functioning administrative agency.

PW70 suggest, in addition to the reforms suggested by CECPP, the following areas for reform:

  • Training of Commissioners in Basic Concepts of Administrative Law including due process concepts and the meaning of the rule of law.
  • Reforming transcript practices by replacing curent outmoded audio recording system with modern system, disseminating audio transcripts in mp3 format on web site and on CD's rather that cassettes (yes, they use cassettes!), and requiring applicants for major projects to fund written transcripts to be disseminated as text files on LPC web site.
  • Requiring applicants for major projects to submit Acrobat/ electronic versions of all submissions including pdf versions of the large boards, to then be disseminated on the LPC web site.

January 12, 2007:

[Note: On January 3, 2007 in a telephone conversation, the CSI attorneys absolutely said they had received an "objection letter" - but, in a letter of January 12, 2007, the attorneys now say that this comment was a "misunderstanding" - hmmm.]

Congregation Shearith Israel (CSI) is moving forward with its project. On November 8, 2006, CSI held an ex parte preliminary application meeting with Commissioners of the Board of Standards of Appeals and has filed plans with the Department of Buildings. The DOB apparently has provided objections to the project as to zoning, and CSI must now apply to the BSA for a variance.

However, community groups remain in the dark, as both the BSA and DBA are stonewalling neighborhood and landmark groups. Both Landmark West and community members have filed Freedom of Information Law requests with DOB and BSA. BSA refuses to turn over notes of the ex parte BSA meeting on the specious ground of attorney client privilege.

DOB has refused to provide access on security concerns having decided to designated certain religious sites as "sensitive" and after 9/11 having decided to release information only if approved by the building owner - and - CSI has refuse to authorize release.. So, for now, material that will be completely public when CSI applies to the BSA and goes through the CB7 process, is now considered to pose security risks.

See the letters concerning FOIL requests to the DOB and BSA and the ex parte meetings.

Tom Wolfe in a New York Times article "The (Naked) City and the Undead" launched a powerful missive criticizing the New York City development process and in particular LPC and its Chairman Robert Tierney. This provoked a flurry of letter to the editor by Tierney and friends defending LPC, Tierney and the process. But the little game now being played by BSA, DOB, and CSI is illustrative of the City's practice to treat interested members of the public and groups as a nuisance, largely irrelevant to the back door decisions driven by powerful entities like CSI and its influential membership.

 

 

Status - as of September 1, 2006:

The Landmarks Preservation Commission approved the 9 story project on March 14, 2006 - lopping one of the two penthouses from the building proposal of August 15, 2005.

Even though the Congregation Shearith Israel in October 2005 represented to the Community Board 7 that the two penthouses were acceptable to the LPC, it appears that was not so.

This is the latest act in a saga that includes a 1983 proposal to build a 42-story tower, a 1995 proposal for a 33-story tower, and a 2003 proposal for a 15 story tower. The 2006 action by the LPC was a continuation of the proceeding initiated in 2002.

The next step for the Congregation is to attempt obtain the approval of the Board of Standards and Appeals (BSA). This is required because the proposed building does not conform with zoning requirement: it is too tall and is too deep in the lot. In addition, the penthouse does not conform with zoning law.

Almost all of the conforming space represents condominium apartments: this presents a huge problem to the Congregation.

In order to obtain a variance, the project must satisfy the five factors specified in Zoning Resolution 72-21.

Before the BSA may act, there must first be a hearing at Community Board 7 and its Land Use Committee (co-chairs: Richard Asche and Page Crowley).

2005north

Note how the Congregation's rendering above fades out the floors that exceed the height of 18 W. 70 - the second penthouse level was not approved by the LPC.

east
2005 Proposal (from imaginary perspective::


The Congregation Shearith Israel removed the facade to the first two townhouses in 1954 and demolished the third townhouse in 1970.

TECHNICAL MEMORANDUM


 

 

 

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