104 Charlton Street, Lower Manhattan. Image Credit: GoogleMaps
The transferring property was granted a variance 15 years ago, but the development of the adjacent property had not been under the applicant’s control. On December 6, 2016, the Board of Standards and Appeals unanimously voted to grant 104 Charlton Street Condominium’s request to transfer unused development rights from the applicant’s property, located at 104 Charlton Street, to an adjacent property located at 108 Charlton Street in Manhattan’s Special Hudson Square District. Because the site from which the unused development rights would be transferred had previously received a variance, the development rights cannot be transferred without Board approval.
The applicant’s property holds an eight story residential building in a district zoned for residential use. On May 14, 2002, the district was at that time zoned for manufacturing use (M1-6), and the Board granted a variance to convert five of the six of the seven floors of the building from manufacturing use to residential use, excluding a portion of the ground floor, and allowing the construction of an eighth floor for residential use. Fifteen years later, the applicant requested permission from the Board to transfer the unused development rights for use on an adjacent property in the construction of a new, as-of-right residential development.
The applicant argued that transferring the unused development rights in this situation was appropriate. According to the applicant, transferring the unused development rights in this instance would not undermine the integrity of the Board’s findings in granting the original variance, because the Board, when considering the original variance, considered and accepted as part of the estimated “as is” value of the site more than 16,000 square feet of excess development rights. Further, the applicant argued that at the time of the variance, the two sites were held in separate and unrelated ownership from all other parcels on the block, and therefore the applicant lacked control over the timing and nature of the transfer at the time the original variance had been granted.
The Board voted unanimously to grant the applicant’s request to transfer the unused development rights from its property to an adjacent property for residential use. The Board found that since the applicant’s property and the adjacent property are under separate ownership, the applicant could not have predicted or controlled the development activities on the adjacent site. Further, the Board noted that the value of more than 16,000 square feet of excess development rights at the site was considered as part of the Board’s findings in its 2002 grant and that a transfer of unused development rights from the site was foreseeable.
BSA: 104 Charlton Street (371-01-BZ) (Mar. 8, 2016) (Greenberg Traurig, LLP, for 104 Charlton Street Condominium, owner).