BSA hears appeal challenging NYU dorm

East Village residents opposed lot merger needed for construction of 26-story dormitory. On April 17, 2007, BSA held a contentious hearing on New York University’s 26- story dormitory, currently under construction on East 12th Street in the East Village. In September 2006, a court refused to halt construction while residents appealed the building permit to BSA. 3 CityLand 144 (Oct. 15, 2006).

NYU achieved the 26-story height by merging the construction site with an adjacent lot containing the two-story Cooper Station Post Office, owned by the United States Postal Service. This enabled NYU to use the post office site’s unused floor area in determining the size of development allowed on NYU’s portion of the site. NYU’s developer paid $7.7 million to merge the lots and use the development rights. It also received an easement agreement for light, air and an unobstructed view over Cooper Station.

At BSA, Kevin Finnegan, representing the local residents, argued that the Department of Buildings erred in granting the permit since the postal service is exempt from local zoning laws. According to Finnegan, the power to merge a lot and to allow the transfer of development rights comes from the zoning resolution. The Postal Service cannot gain benefits from zoning if it remains exempt from it. Finnegan also raised the community’s concerns that due to the post office’s exemption, nothing stopped the Postal Service from building its own high-rise development on the Cooper Station site. When Commissioner Dara Ottley-Brown asked for a code section that allowed BSA to revoke the permit, Finnegan answered that the zoning resolution does not contemplate the merger, adding that “by implication it can’t happen.”

Buildings attorney Lisa M. Orrantia argued that the zoning resolution attributes floor area to a zoning lot regardless of ownership, adding that zoning regulates land use and not the identity of the owner. She pointed out that the zoning text specifically allows transfers of air rights from federally-owned landmarks, proving that a type of air rights transfer from federal properties is contemplated by the City. Orrantia went on to explain that, due to the lot merger, the floor area of the proposed dorm is as-of-right.

David Satnick, speaking on behalf of the dorm developer Hudson 12th Development LLC, argued that the local residents’ “problem is with the supremacy clause, not the project.” The attorney for the Postal Service stressed that the easement agreement prevents additional development over the historic Cooper Station building, which, in his words, is what the community wanted for years.

Council Member Rosie Mendez spoke in opposition, saying she was “baffled how a private entity could be used to enforce the zoning resolution on a federal agency.” U.S. Congressman Jerrold Nadler, State Senator Thomas Duane and Assembly Member Deborah Glick sent representatives to urge BSA to overturn the permit. Brian Cook from Manhattan Borough President Scott Stringer’s office argued for the permit’s revocation, saying that the federal government’s immunity from the zoning resolution applies to all provisions not solely the sections that it finds convenient. Vice- Chair Christopher Collins then asked Cook if Stringer would support a similar limitation when the City was the party, instead of the federal government. Cook argued that there are specific procedures in place for community input when the City or state transfer development rights, but no procedures exist for the Postal Service.

Several local residents argued that the dorm was inappropriate, would put a strain on community services, like police and fire, and would give nothing back to the community. One resident criticized the future residents of the dorm as “transient students away from home for the first time and without adequate supervision.”

BSA scheduled a vote on the matter for June 12, 2007.

Hearing on 120 East 12th Street, Manhattan (238-06-A), April 17, 2007.