UPDATED: Work on apartment tower to continue after appeal

36 West 66th Street. Image Credit: Google Maps.

NOTE: This article was written for and previously appeared in an issue of CityLaw earlier this year, and was chosen for publication to CityLand prior to the issuance of a recent appeal decision that has now overturned this case. Please wait for future coverage of this issue.

Developer received permit to build record-setting skyscraper on the West Side of Manhattan. In November 2017, Extell Development Company unveiled plans to build a massive residential tower for luxury condominiums at 36 West 66th Street. The building, if completed at 775 feet tall, would be the tallest on the Upper West Side of Manhattan. Extell applied for and received a permit from the Department of Buildings after making slight modifications to the structural design in order to accommodate, primarily, fire safety concerns.

On April 24, 2019, the City Club of New York, a non-profit advocacy group, sued to stop construction, alleging that the design violated multiple zoning rules. The City Club argued that Extell had exceeded height limitations by employing two unlawful stratagems.

The City Club first charged that Extell had unlawfully exploited the fact that mechanical floors used to house elevator machinery, plumbing, heating, air conditioning, are not included in the height calculation under the zoning rules. Extell’s design called for four consecutive mechanical floors underneath the tower portion of the building, artificially raising the total height by roughly 200 feet.

The City Club charged that Extell, secondly, had unlawfully taken advantage of the split zoning site which straddled two differently zoned districts. Extell had selectively applied zoning rules from each portion of the lot, a tactic which the City Club asserted was impermissible for a single structure.

In September 2020, Supreme Court Justice Arthur F. Engoron ruled in favor of the City Club, holding that both the Board of Standards and Appeals and the Department of Buildings had erred in granting Extell a building permit. Judge Engoron vacated the building permit and enjoined further construction. Construction on the project had already stopped at the foundation stage.

Judge Engoron chastised Extell for brazenly attempting to circumvent height regulations. The City in 1993 had amended the Zoning Resolution to combat the proliferation of so-called “tower on a base” skyscrapers, of which the Extell development was a prototypical example. Judge Engoron stressed that these zoning resolutions must be read in light of their sole purpose: limiting the height of such buildings.

Judge Engoron held that each portion of a lot, even if in separate zoning districts, must be evaluated independently and that the structure must comply with all the district zoning rules applicable to that portion. Developers may not cherry-pick from among the constraints in each district and apply the more liberal rules to the more restrictively zoned portion of the lot, as Extell had done.

Judge Engoron pointed out that the building would incontestably be in violation if the entire lot were zoned under either district’s rules, thus suggesting it would be an absurd result to allow the high-rise’s construction simply because it sits in two different districts.

Secondly, Judge Engoron concluded that Extell had inserted the mechanical floors in a blatant effort to jack up the elevation of the apartments in order to command the price premium buyers will pay for the resultantly better views. There was no conceivable practical need for this many mechanical floors of highly atypical height and placement, a proposition that even Extell did not dispute. Judge Engoron found that most of the space dedicated to the mechanical floors would sit empty and serve no function other than increasing the building’s height beyond legal limits. These unnecessarily large and numerous spaces must be counted in height calculations, and doing so put this building over maximum allowable height.

On July 22, 2021, on appeal, the Appellate Division, First Department, overruled Judge Engoron and the vacate order has been lifted. To read the decision, click here.

City Club of N.Y. v. N.Y.C. Bd. of Standards & Appeals, INDEX NO. 161071/2019 (N.Y. Sup. Ct. 2020).

By: Sean Scheinfeld (Sean is a former CityLaw intern and a New York Law School graduate, Class of 2021.)