Rendering of 27 East 4th Street, Image Credit: CPC/SRAA+E Architecture and Engineering
Supporters of preserving the Merchant House Museum rejoice in victory, but the battle may not be over as future demolition and construction is possible. On September 26, 2018, the City Council voted to disapprove the application for a rezoning at 27 East 4th Street in Manhattan. The Application would have allowed for an 8-story, 28-room hotel or office building with a restaurant and lobby below the second floor, with approximately 17,141 square feet of total floor area. The development site is located within the NoHo Historic District Extension, and is adjacent to the Merchant House Museum, an 1832 rowhouse that is an individual, interior, and national historic landmark. The Merchant House was the City’s first designated landmark and one of the first 20 landmarks designated in the state. It is only one of 120 interior landmarks in the City and one of only 6 residences.
Background
Currently, the developer’s site has a one-story structure that occupies 100 percent of the lot and is being used as a warehouse. The developer was proposing to knock down the existing structure and to build an 8-story building rising 90 feet without a setback to be used either as an office or a hotel, with a lobby and restaurant on the first floor. Existing zoning requires new buildings to be set back from the street at the building’s height of 85 feet or 6-stories, whichever is less, before any unused floor area can be used to build additional floors, up to a maximum building size of 17,415 square feet, or 5.0 F.A.R.
The developer, Kalodop II Park Corporation, has been an owner of this building for over 20 years and had originally proposed to build a 10-story building on the site in 2012. As the site is located within a historic district, the developer needed Landmarks approval in order to demolish the existing warehouse and to build a new structure. After two years, several revised plans, and three unsuccessful attempts, Landmarks finally approved construction of an 8-story building on April 8, 2014.
Landmarks approval came with a protection plan that was developed in consultation with the Department of Buildings to address concerns about the safety to the Merchant House Museum during demolition and construction of the developer’s project. The protection plan had several requirements, including on-site monitoring of the excavation and construction, that the excavation is supervised by a professional licensed engineer, and that developer provide all appropriate safeguards to ensure the structural integrity of the Merchant House. A preliminary Landmarks permit was issued on April 6, 2018, contingent upon approval of the final Buildings’ drawings.
Following Landmarks approval, the developer filed an application with the Department of City Planning in order to permit construction of the proposed 8-story building. The developer needed a special permit to allow the first floor to be used as an office or hotel lobby and allow a restaurant on the first floor. The developer also needed a special permit to construct the building to a height of 90 feet without a setback. However, under the zoning rule, such special permits can only be granted for sites that are either vacant lots, lots with minor improvements, or lots covered by no more than 40 percent by an existing structure. As the developer’s existing warehouse covers 100 percent of the lot, the developer did not qualify to receive special permits under this zoning rule. Therefore, the developer applied to have the text of this zoning section amended through the Uniform Land Use Review Procedure (ULURP), in order to get one story structures within the NoHo Historic District Extension eligible for the special permits under this section of the zoning text.
Uniform Land Use Review Procedure: Community Input
On May 24, 2018, Manhattan Community Board 2 unanimously voted in favor of a resolution disapproving the application unless the proposed development was modified to avoid all harm to the Merchant’s House Museum. The Community Board also cited concerns that the proposed zoning text change would affect no other sites throughout the City, and that therefore it represented an effort to alter the zoning to serve the “private interests of the applicant, with no public benefit”.
On June 26, 2018, Manhattan Borough President Gale Brewer also issued a recommendation to disapprove the development citing concerns about the possible damage to the Merchant House, and instead suggested that the developer build the project on developer’s other property, located around the corner at 403 Lafayette Street. She further stated, that if developer was unable to do so, then the City, through the Department of Parks, should obtain independent expert assessment to develop a plan that ensures structural stability of the museum throughout construction. The Borough President also called on City Planning to require a restrictive declaration as a condition of the special permits requiring the developer to adhere to safeguards that would minimize the effects on Merchant House.
City Planning Commission Consideration of the Project
On August 22, 2018, the City Planning Commission approved the proposed development. In recognition of the changing characteristic of the historic district extension from a predominantly manufacturing district to one that now largely consists of a mixture of residential buildings with retail and restaurants on the first floor, City Planning found that the requested amendment to zoning along with the special permits was appropriate. City Planning found an 8-story building rising to a height of 90 feet without setback to be an appropriate addition, as the building’s height would be “comparable to the adjacent buildings to the west of the site and along Lafayette Street”. City Planning also found that an addition of a hotel or office lobby and restaurant on the first floor would be appropriate as such ground floor uses have become prevalent within a close proximity of the proposed site. City Planning also stated that enforcing existing height and setback regulations, which for this project would require a setback at the 6th floor, or more specifically at 69 feet, would introduce an uncharacteristic street wall design into the historic district.
City Council Subcommittee on Zoning and Franchises Hearing
Merchant House Museum, located adjacent to the development site. Image Credit: Tony
On September 17, 2018, the City Council Subcommittee on Zoning held a public hearing on the application. The developer team, consisting of Gary Spindler, Michael Kramer, and Jeremiah Candreva, testified as to the types of protective measures for demolition and construction that would be undertaken in order to assure that minimal harm would be caused to the Merchant House and repairs would be made as needed. The developer stated that Merchant House was spreading misinformation as to the danger posed to them based on out of date engineer reports from the previous 10-story building which was proposed in 2012 and rejected by Landmarks. That report showed that damage would be caused to the Merchant House, but the applicant stated that those findings no longer apply to the present 8-story building plan.
Developer team stated that they have updated their reports based on Landmarks and Buildings input to ensure that effects on Merchant House would be minimized. The developer team described the changes that have been made, including changes to the foundation and promised to keep the existing walls in place for as long as possible while demolition and construction were ongoing in order to provide structural support to the Merchant House. Developer further stated that they were willing and ready to have their engineers meet with the Merchant House engineers in order to discuss the updated demolition and construction plans, however they have been unable to arrange such a meeting. In response, Merchant House representatives stated that they too were willing to meet with the developer’s experts and to permit them to conduct a preconstruction survey but that they have not heard from the developer in regard to this.
Several prominent speakers testified on behalf of the Merchant’s House and in opposition of the development. First, State Senator Brad Hoylman testified that he opposed the application because he did not believe a full examination of the dangers to Merchant House had been conducted and found the applicant’s testimony to make repairs if damage is caused alarming, as the building is already fragile. The Senator’s request to reject the application was also based on the fact that the developer owns 403 Lafayette Street, which appeared to be a more appropriate site for the project.
Manhattan Borough President Gale Brewer’s representative stated that the Borough President was also in support of development at 403 Lafayette, stating that based on communication between the Borough President and City Planning Commission a transfer of air rights would be possible depending on what applicant would propose to construct. This contradicts the developer’s prior testimony that a transfer of air rights from the proposed development site on East 4th street to 403 Lafayette was not possible because of lack of contiguity between the lots.
Margaret Gardner, the Executive Director of Merchant House Museum, also testified in opposition to the project stating that the proposed construction would cause irreversible damage to, and possible collapse of, Merchant House which already has decades-long history of damage caused by work at adjoining properties. Furthermore, the western wall that is shared with the developer’s 1-story structure had been previously damaged when an older building on that lot was demolished, ensuring decades of restoration work on the wall which currently needs $350,000 in repair before any construction next door could occur. She also mentioned demolition that occurred on the development site east of Merchant House in 1988, which caused major structural damage of around $1 million dollars even though those developers promised to take the building down “brick by brick”, similar to the proposed use of hand tools for the developer’s project. She stated that even if all risk could be removed, the museum would still need to be closed for two years in order to ensure protection and the museum’s collection would need to be removed and stored somewhere else, also costing money.
The majority of those testifying against the proposed project also argued that the developer’s requested zoning text change constituted illegal spot zoning, an attempt to change the zoning text to benefit only the particular developer as opposed to the public at large.
Kurt Herschberg, a preservation architect for Merchant House, testified that their structural engineers had updated their reports based on the developer’s revised plans and that damage to the exterior and interior would occur to the Merchant House as a result of construction, particularly the plaster finishes on the inside, and the masonry on the outside.
Many area residents, as well as volunteers and staff of the Merchant House Museum also testified in strong opposition to the proposed development.
City Council Zoning Subcommittee Decision, Land Use Committee Vote and City Council Vote
On September 20, 2018, the Subcommittee on Zoning voted to disapprove the application. The Subcommittee stated that they “questioned the policy rationale behind the proposed zoning text amendment.” The subcommittee expressed that the applicant and City Planning could use a different zoning section that would allow the applicant to obtain the necessary special permits to build the 8-story building plan exactly how they want without needing to change any zoning text. Plus, this alternative zoning section would provide an added benefit to the public by providing additional protections to the adjacent Merchant House.
The Subcommittee stated, “we do not wish to promote zoning text amendments which disincentivize the use of an otherwise available special permit which supports landmarks. Given that [another zoning rule] is available to developer, City Council believes that proposed zoning text amendment is neither necessary or appropriate. Because the special permits are contingent upon the zoning text amendment, they will also be disapproved.”
Council Member Carlina Rivera at the September 17th Subcommittee on Zoning Hearing. Image Credit: Emil Cohen/ New York City Council
Council Member Carlina Rivera stated at the Subcommittee hearing, “there is disagreement as to whether the proposed construction protocols will protect the Merchant House which is located on city-owned land under the jurisdiction of the Parks Department. The City hasn’t funded the structural upkeep of this irreplaceable asset. Section 74-711, titled “Landmarks Preservation in All Districts” would not require a zoning text amendment and can be used to achieve the same use and bulk waivers that applicant seeks if they meet certain conditions, including that Landmarks approve a plan for the continued maintenance of the landmarked building.
Council Member Rivera went on to say that if the Council would approve this text amendment it would erode the zoning section, which benefits the public by preserving landmarks. She also stated that she remained committed to continue working with the developer to explore other approaches and strategies for ensuring preservation of Merchant House.
Later that same day the Committee on Land Use also voted to disapprove the application and on September 26, 2018, the full City Council also voted to disapprove the application.
CC: Zoning, 27 East 4th Street, Manhattan (Res 0549-2018, LU 203; Res 0550-2018, LU 204; Res 0551-2018, LU 205). (September 26, 2018).
By: Viktoriya Gray (Viktoriya is the CityLaw Fellow and New York Law School Graduate, Class of 2018).
Great work by the author, Viktoria Gray. Keep it up.