Testimony Before the Board of Standards and Appeals in Opposition to Calendar No. 2017-290-A, 1558 Third Avenue

The Real Estate Board of New York (REBNY) is strongly opposed to the application before the Board of Standards and Appeals (BSA) that would reverse the previously issued building permit for a new development on property located at 1558 Third Avenue in the Upper East Side, Borough of Manhattan by DDG Investment and Real Estate Development.

DDG’s project underwent extensive and exceptional review by DOB and the City — both prior to breaking ground and over the 2 subsequent years — and has consistently been interpreted during that tenure as consistent with applicable zoning law. In addition, the court recently dismissed the petitioners’ suit after opposition groups filed an Article 78 proceeding seeking an injunction to halt construction. Now the applicant is asking the BSA for a general opinion on zoning statute under the guise of a specific development proposal, i.e. defining a zoning lot. That type of far-reaching interpretation is not the purview of this Board. If there are issues of clarity with the statute, the most appropriate venue is consideration by the City Planning Commission. 

The interpretation requested by the community would have broad implications for as-of-right development in the City of New York. Their issue highlights a more general or universal concern than that which is supposed to be under the Board’s purview. 

If 180 East 88th Street – which at the time when the SWO was issued was already over one year into construction, with full financing and foundations already poured – can have its permitted as-of-right project upended at the BSA by neighborhood opposition, it will have chilling and negative consequences on the real estate sector.

The City’s as-of-right framework embodied in its Zoning Resolution is meant to encourage predictability in an industry where financing needs predictability especially when market conditions can be so unpredictable. The consistency of the review should be upheld and protected by the City to ensure the predictability and confidence of the regulatory system for investors and businesses.

The interpretation of our zoning laws should be objective and rational and not be subject to political whim or subjective criteria advanced by community groups who simply don’t like the results of a lawfully approved project. The current BSA claim is without merit and should be dismissed expeditiously to thwart further efforts to use this forum to stop projects communities don’t like.