Note: Since posting The New York Times has come out with a piece and a stand out quote by housing activist lawyer! If only we could remove more zone busters....and force developers to un-do their dirty work.
I got this email from a source who knows.....
The Post article is shit. Apparently, they thought it sufficient to speak with Marvin Mitzner, high powered real estate/zoning attorney for the owners of the buildings, the Shaouls, without quoting any tenants. We thought the Times would write something this time but...
Here is the real story. Yes, it is a partial symbolic victory that the seventh floors (so-called penthouses) must be removed but the BSA has acted irresponsibly by allowing the variance after initially ruling in 2008 that the vertical enlargements contravene strict enforcement of Multiple Dwelling Law fire and safety requirements. Briefly, MDL 211 allows tenements to add a 6th floor or go to 75 ft. so long as the fire and safety provisions (found in Articles 3 and 5 of MDL) are met, that is, provided the non-fireproof building is fire-proofed. When the tenants of 515 E. 5th St. and 514-516 E. 6th St. brought their appeal to the BSA (Board) opposing the DOB's allowance of the construction of two extra floors the Board agreed and issued a unanimous ruling revoking all permits. The owners then appealed to Supreme Court. That Judge tabled her decision and told the owner's they had not exhausted their administrative remedies, i.e. they could seek their own variance at the BSA. The owners then went back to the BSA to do so but only on 514-516 E. 6th Street leaving the 5th St. building in limbo. In fact, the Supreme Court judge should not have heard the cases together since the BSA had issued two separate rulings for the 5th and 6th St. buildings.
Corporation Counsel then gave the Board (BSA) a loophole through a strained interpretation of MDL 310 which discusses the BSA's legal authority to issue MDL variances. Tenants argued that according to MDL 310(c) the BSA lacks legal authority to issue MDL variances because the building has been altered pursuant to plans filed after 1961. But Corporation Counsel and the Board agreed with the owners that 310(a) pertained allowing the Board to issue variances because the building was in existence in 1948 (regardless of the fact that it was thereafter altered). In other words, who cares about the alteration so long as the building existed before that. Of course, an alteration presumes the existence of a building. Otherwise, what would be altered. This means that the plain language of the law should not have allowed the variance at all.
The facts of the case are also at issue. The owners claimed to have provided "alternative" fire and safety provisions equal to or better than those required by the MDL but these claims have not been vetted in any way. The Board simply accepted the owner's claims at face value. The MDL explicity requires a 3 hr. fire rated enclosed central stairwell. This should have necessitated the removal of all highly flammable wood studding and plaster lathing from the interior stair walls, the installation of four layers of fire-proof gypsum board drywall, two on each side of the stair walls (apt. and stair sides), the removal of wood studding from floors, a stairwell at least 3 ft. wide in all places, etc. That's why these vertical enlargements have not been tried all over the city. To strictly comply would be impossible in an occupied building because it most certainly would require a complete gutting of the building interior and total reconfiguration of apts. The BSA has now ruled that simply by saying you have fire-proofed a building and adding a sprinkler system owners may circumvent these MDL restrictions, in place since 1929.
This is a terrible precedent. Many other buildings may now go through the same ordeal perhaps not in this immediate area due to the reduced FAR under the new zoning but wherever possible owners will be looking at opportunities to add a sixth floor on their tenements simply by adding a sprinkler system, MDL be damned.
The tenants' point of view is that the owners should not be rewarded for making a bad investment based upon a plan which involved needed displacement of long-time rent regulated tenants. They should not have spent exhorbitant amounts of money on these properties thinking that they could add luxury apt. square footage on top, behind, and below (at least in the case of 515 E. 5th), then use the conditions caused by construction to drive out long-time rent regulated tenants so that noone would be left to oppose their plans. Ultimately, they then lease these new units to young NYU students, long term tourists, or Wall Street traders who make noise 24/7 and could care less about the aggrieved original tenants.
So, first the DOB ignored its mandate by allowing the projects and issuing permits and now the Board has reversed itself and given a green light to similar projects despite any claims they make make to the contrary.
But, they could not ignore all the MDL provisions, for instance those prohibiting the addition of a seventh floor without putting in an elevator. That is why they have said remove the seventh floor (penthouses). Other than that, they have given these owners and all developers seeking to do the same thing the rest of the pie. They said you may now add an additional story to all your old law tenements simply by adding a sprinkler system. This is not a responsible exercise of their duties.
According the the Post article the owners shall now seek a similar variance re 515 E. 5th Street requiring more legal battles from beleaguered tenants. Any community would be greatly appreciated.
P.S. It should also be said that the tenants at 515 E. 5th St. won a previous case before the BSA regarding the "Sliver Law" (Zoning Resolution 23-692) barring vertical enlargements beyond 60 ft where the Resolution applies. Yet, even though neither BSA ruling affecting that building has been reversed the DOB has consistently ignored tenant entreaties to enforce the resolutions. The sixth and seventh floors have been continuously occupied since Sep. 2007 despite the BSA rulings and despite the owner's failure to obtain the Certificate of Occupancy now required by the major alteration. There are open DOB violations to this effect but the DOB refuses to issue vacate orders. Three other apts. in the building are constructed contrary to approved DOB plans (3+ bdrms. instead of the approved 1 bdrm.) leading to overcrowding and persistent noise problems. The DOB has also issued violations for these including administrative violations for falsely claiming correction (these carry a criminal penalty). These latter violations were dismissed when the owners' representative swore under oath and submitted questionable documents at an Environmental Control Board hearing in Sept. 2009. They asserted that it was not they but their tenants who constructed the additional full walls in one of these apts. and that this happened not once, but twice. All efforts to get the DOB and ECB to do something have been ignored. The District Attorney's office seems uninterested in pursuing a clear case of misrepresentation of the facts (tenants have full hearing transcripts from the ECB through a FOIL request).
Ben Shaoul is rumored to be totally shady and less than ethical -- just google his name and also try other spellings like Ben Shaul -- there may be even other spellings.....
but plenty should pop up....
