Court rejected neighbors’ article 78 challenge to nine-story mixed-use building adjacent to landmarked synagogue. Congregation Shearith Israel applied to BSA for a variance to build a nine-story mixed-used building adjacent to its landmarked synagogue at the corner of West 70th Street and Central Park West in the Upper West Side-Central Park West Historic District. In addition to the synagogue, Shearith Israel owns a four-story parsonage house to the south of the synagogue along Central Park West and a four-story community house to the west of the synagogue along West 70th Street. Shearith Israel planned to demolish the community house to build the project. The proposed building’s first four floors would be occupied by community facility uses, including adult education classrooms, a Jewish day school, and a synagogue reception and banquet area. The top five floors would be developed into five market-rate condominiums.
The majority of Shearith Israel’s zoning lot is zoned R10A, but a portion of the lot along West 70th Street is zoned R8B. Shearith Israel needed the variance because the 105-foot building would violate, among other things, the zoning resolution’s maximum building height and setback regulations. Prior to applying to BSA, Shearith Israel obtained approval from Landmarks to demolish the community house and build the proposed mixed-use development.
At BSA Shearith Israel claimed that because of the lot’s split zoning and the presence of the landmarked synagogue, a non-complying design was necessary to meet the congregation’s needs. Because the residential portion of the building was for revenue-generating purposes and not in furtherance of the congregation’s programmatic needs, BSA required Shearith Israel to demonstrate that it could not realize a reasonable economic return from an as-of right residential development.
Elected officials, preservationists, and residents opposed the project. Opponents argued, among other things, that the lot’s split zoning was not a unique physical condition, noting that four other properties in the area are also zoned R10A and R8B. Opponents also argued that Shearith Israel used the wrong economic model to demonstrate that it was unable to earn a reasonable return from an as-of-right development. Further, Manhattan Community Board 7 and neighboring property owners argued that the project would reduce access to light and air for residents along West 70th Street and Central Park West. 5 City- Land 28 (March 15, 2008).
BSA granted the variance, finding that the existence of four other sites with the same split zoning within a 51-block area did not defeat a finding that Shearith Israel’s site possessed a unique condition. BSA also found that the congregation demonstrated that it could not obtain a reasonable return with an as-of-right development. BSA ruled that Shearith Israel used the appropriate methodology to calculate the rate of return for its alternative development proposals.
Two nearby property owners and the preservation group Landmark West! filed article 78 petitions challenging BSA’s decision. The property owners reiterated the arguments presented at BSA including that an as-of-right mixed-use development would provide Shearith Israel with a reasonable return that would not adversely affect the neighboring buildings. The property owners also argued that BSA should have required Shearith Israel to disclose rental income generated from its properties, including a six-bedroom apartment in the parsonage house and the community house’s Jewish day-school space.
A lower court upheld BSA’s issuance of the variance, ruling that BSA had a reasonable basis for its determination. Noting the concerns of the property owners, the court pointed out that it was limited to determining whether BSA’s determination lacked a rational basis. The property owners appealed the decision.
The First Department affirmed the lower court, ruling that BSA had satisfied the statute in granting the variance.
Kettaneh v BSA, 2011 N.Y. Slip Op. 05410 (1st Dep’t June 23, 2011) (Attorneys: Jeffrey D. Friedlander, Ronald E. Sternberg, for BSA; Claude M. Millman, for Shearith Israel; Alan D. Sugarman, for property owners; David Rosenberg, for Landmark West!).