BSA rejects Buildings interpretation of Sliver Law

Residents prevail on claim that Manhattan building violated height limit. In 2006, the owner of 515 East Fifth Street self-certified a permit to add a sixth story and penthouse addition to the building. With construction underway, local residents and Manhattan Borough President Scott Stringer complained to the Department of Buildings that the penthouse violated the 60-foot height limit set by the zoning resolution’s Sliver Law, which limits building heights in certain districts to either the width of the street or the height of an abutting structure.

Almost seven months later, Buildings rejected the residents’ complaints, finding the Sliver Law’s height limit inapplicable to the penthouse due to the penthouse’s size and the fact that it was set back and not visible from the street. Buildings’ pointed out that the construction maintained the street wall’s continuity, making it compliant with the Sliver Law’s intent. The residents appealed to BSA.

At BSA, Buildings argued that the Sliver Law was ambiguous because it limits “height,” but provides no definition for it. Buildings explained that it looked to the City’s intent behind enacting the Sliver Law, which it claimed was an aesthetic interest in maintaining streetwall continuity, and not a limit on the overall building size. Buildings therefore looked outside the Sliver Law to define height and referred to the Building Code, which exempts small penthouses. Buildings argued that the Sliver Law purposely did not define building height to allow for situations such as this, where the building is consistent with the character of the neighborhood and the penthouse addition is sufficiently set back from the front of the building. 4 CityLand 107 (Aug. 15, 2007).

The residents countered that the zoning text was clear, and, by referring to the Building Code, Buildings acted outside its authority. Only the City Council could approve such a text amendment, the residents argued.

City Planning, by letter, explained that the zoning text used the word “height” 73 times without a definition, and that its common meaning was clear. The letter added that the only permitted exceptions to the Sliver Law were contained in the zoning resolution and included items like flagpoles, chimneys and dormers, but not penthouses.

BSA ruled the Sliver Law and its use of “height”were unambiguous. Ruling penthouses to be subject to the Sliver Law’s height limit, BSA

agreed with the residents’ argument that Buildings overreached its authority. Authorization to make a penthouse exempt from the Sliver Law necessitated a text amendment approval by the City Council.

Since the penthouse construction was complete, the building owner asked BSA to rule prospectively on the Sliver Law and exempt it from the decision. BSA rejected this request, explaining that it lacked equitable powers to do so and must find the building permit to be issued in error.

BSA: 515 East 5th Street (67-07-A) (Sept. 11, 2007) (Kevin Finnegan, for residents; Stephen P. Kramer, for DOB; Marvin B. Mitzner, for owner). CITYADMIN