FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO.

154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-------------------------------------------------------------------------- x
THE CITY CLUB OF NEW YORK, 10 WEST 66TH
STREET CORPORATION, JAMES C.P. BERRY, JAN
CONSTANTINE, VICTOR A. KOVNER, AGNES C.
McKEON, and ARLENE SIMON,
Index No.
Plaintiffs,
SUMMONS
- against -

EXTELL DEVELOPMENT COMPANY and WEST 66TH

SPONSOR LLC,

Defendants.
-------------------------------------------------------------------------- x

TO THE ABOVE-NAMED DEFENDANTS:

You are hereby summoned to answer the complaint in this action and to

serve a copy of your answer, or, if the complaint is not served with this summons, to

serve a notice of appearance, on the plaintiffs’ attorneys within 20 days after the

service of this summons, exclusive of the date of service (or within 30 days after the

service is complete if this summons is not personally delivered to you within the State

of New York). In case of your failure to appear or answer, judgment will be taken

against you by default for the relief demanded in the complaint.

1 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

The basis of venue is the location of the subject property, 36 West 66th

Street, in New York County.

Dated: Brooklyn, New York

April 24, 2019

_______________/s/________________
JOHN R. LOW-BEER
415 8th Street
Brooklyn, NY 11215
(718) 499-2590
jlowbeer@yahoo.com

________________/s/_______________
CHARLES N. WEINSTOCK
8 Old Fulton Street
Brooklyn, NY 11201
(323) 791-1500
cweinstock@mac.com

Attorneys for Plaintiffs

To:

EXTELL DEVELOPMENT COMPANY

805 Third Avenue
New York, New York 10022

WEST 66TH SPONSOR LLC

c/o Extell Development Company
805 Third Avenue
New York, New York 10022

-2-

2 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
---------------------------------------------------------------------------x
THE CITY CLUB OF NEW YORK, 10 WEST 66TH
STREET CORPORATION, JAMES C.P. BERRY, JAN
CONSTANTINE, VICTOR A. KOVNER, AGNES C. Index No.
McKEON, and ARLENE SIMON,
VERIFIED
Plaintiffs, COMPLAINT
-against-

EXTELL DEVELOPMENT COMPANY and WEST 66TH

SPONSOR LLC,

Defendants.

---------------------------------------------------------------------------x

The above-named Plaintiffs, by and through their attorneys, John R. Low-Beer

and Charles N. Weinstock, for their Complaint, allege as follows:

Preliminary Statement

1. Plaintiffs, a not-for-profit civic organization, a coop building directly

adjoining the site of Extell’s proposed building, and immediate neighbors, bring this action for

declaratory and injunctive relief to stop defendants Extell Development Company and West

66th Sponsor LLC (collectively, “Extell”) from continuing their ongoing construction of a 775-

foot-tall luxury residential tower at 36 West 66th Street – the would-be tallest building on the

Upper West Side of Manhattan – in violation of the Zoning Resolution. Extell’s building is

hundreds of feet taller than allowed in the Special Lincoln Square District, driven by greed and

the desire to build ever-higher apartments with commanding views and higher prices. The

zoning violations are blatant.

2. Extell’s proposed building violates the Bulk Packing Rule. By

misconstruing three words in the Zoning Resolution, “Within the Special District, . . .” to mean

3 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

“Everywhere within the Special District, . . .”, Extell has obtained a permit to build a tower

five floors higher than the Zoning Resolution allows.

3. The Bulk Packing Rule and the related Tower Coverage Rule were enacted

in 1993 as integral parts of the “tower-on-a-base” regulations that replaced the “tower on a

plaza” building form with a lower, squatter, more contextual building form. A tower-on-a-

base building has a box-shaped base fronting on the street, and a tower above the base.

4. These rules are supposed to work as follows. The Zoning Resolution

regulates bulk by limiting the amount of floor area that can be built on a lot. This allowable

floor area is a multiple of the lot’s area, generally referred to as the “floor area ratio” or “FAR.”

Hereinafter, the terms “FAR,” “bulk,” “floor area” and “square footage” are used

interchangeably.

5. The Bulk Packing and Tower Coverage Rules further regulate how that

bulk must be distributed within the allowable envelope. The Bulk Packing Rule requires that

most of the allowable floor area – 60 percent – be in the base of such buildings, below 150

feet, leaving no more than 40 percent for the tower portion. But the Rule only achieves its

purpose if the floor area of the tower and base add up to the total allowed: one more square

foot of floor area in the base is one square foot less in the tower. The Tower Coverage Rule

requires that the tower built on the base have a footprint of a minimum size – it must cover at

least 30 percent of the lot area. This ensures that the tower will not be too tall and narrow, and

will broaden as the lot grows larger, so that the tower’s height remains constant no matter the

size of the lot.

6. The two rules form an integrated mechanism that limits the number of

floors in the tower portion of the building. But for it to work as intended, the total allowable

4 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

floor area, the tower coverage, and the bulk packing must all be based on a common

denominator: one lot size, one FAR, and one set of rules applicable to the entire envelope.

7. Extell attempts to evade the Bulk Packing Rule by taking advantage of the

fact that its zoning lot straddles two zoning districts: one in which tower-on-a-base buildings

are allowed and one in which they are not. Extell properly calculates both total allowable floor

area and tower coverage based on the portion of its lot where towers are allowed. However,

in counting the required bulk below 150 feet, Extell takes floor area from the portion where

towers are not allowed, and counts that toward the required amount. Instead of reducing the

size of the tower, adding to the base in this way actually allows the tower to grow in size. This

is the opposite of what the rule is supposed to do.

8. Extell’s second zoning violation is that the tower contains, in the floors

just above the base, four cavernous volumes purportedly necessary for mechanical equipment

that total 196 feet in height. Two of these voids are 64 feet high, a third is 48 feet high, and a

fourth is 20 feet high. Their real purpose is to raise the height, and the prices, of the apartments

above them.

9. Such huge voids are illegal because they are “not customarily found in

connection with residential uses,” as the Zoning Resolution requires for an “accessory use.”

Nor are they “space[s] used for mechanical equipment,” as defined by ZR § 12-10.

Parties

10. Plaintiff the City Club of New York is a not-for-profit advocacy

organization founded in 1892. It is well-known for its work in improving the quality of the

City’s government and urban planning and environment. The City Club has members who live

within a few hundred feet of the proposed building.

5 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

11. Plaintiff 10 West 66th Street Corporation is a cooperative incorporated

pursuant to New York Business Corporation Law that owns the building at 10 West 66th Street,

New York, New York. The building is directly adjacent to the site of Extell’s proposed

building.

12. Plaintiff James C.P. Berry lives at 10 West 65th Street, across the street

from the proposed building.

13. Plaintiff Jan Constantine has lived at 10 West 66th Street since 1981. Her

apartment directly overlooks the building site.

14. Plaintiff Victor A. Kovner has lived at 27 West 67th Street, just over 300

feet from Extell’s proposed building, since 1974. If built, the building would be very visible

from his apartment.

15. Plaintiff Agnes C. McKeon has lived at 10 West 65th Street, located

directly across West 65th Street from the building site, since 1992. Her apartment is in the

front and overlooks the site.

16. Plaintiff Arlene Simon has been active for 50 years in fighting to protect

the quality of the built environment and for preservation of landmarks on the Upper West Side.

She has lived at 27 West 67th Street since 1969. Her apartment faces south, toward Extell’s

building.

17. Defendant West 66th Sponsor LLC (“Extell Sponsor”) is a Delaware

limited liability company with offices c/o Extell Development Company, 805 Third Avenue,

New York, New York 10022. It is the owner of record of the properties in question, and on

information and belief, a subsidiary of Extell Development Company.

6 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

18. Defendant Extell Development Company is a Delaware general

corporation with offices in New York City at 805 Third Avenue, New York, New York 10022.

FACTS

A. The Special Lincoln Square District, the Proposed Building and the Site

19. On the south side of West 66th Street, just west of Central Park, Extell

proposes to build a 775-foot-high residential tower-on-a-base building. The building would

be the tallest on the Upper West Side, 230 feet higher than the Millennium Tower, a 47-story,

545-foot-tall tower a block and a half away that outraged the community and contributed to

the enactment in 1993 of rules intended to limit building height, including the Bulk Packing

Rule and the Tower Coverage Rule.

20. The building would achieve its exceptional height in substantial part by

virtue of two illegalities that would add approximately 276 vertical feet: its evasion of the

Bulk Packing Rule and its largely empty mechanical spaces located above its base and below

the residential floors of the tower section. There would be three contiguous supposed

mechanical floors (17, 18, and 19), two 64 feet high and one 48 feet high. Just below these,

on the 16th floor, would be a “residential amenity space” 42 feet high, and below that, on the

15th floor, yet another mechanical space, 20 feet high. In addition, the building would have

two mechanical floors at the top.

21. Extell’s zoning lot is a through lot running between West 65th and 66th

Streets, 100 yards west of Central Park. It comprises six tax lots: five lots fronting on 66th

Street, and one fronting on 65th Street. The five lots fronting on 66th Street include three lots,

formerly the site of three small buildings that Extell purchased from the Walt Disney Company,

parent of American Broadcasting Companies, Inc. (“ABC”). Also fronting on 66th Street are

7 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

the former site of the Habonim Synagogue and, to the west, the landmarked First Battery

Armory. Although the Armory is still owned by ABC, Extell obtained its development rights

through a zoning lot merger. The sixth lot, formerly the site of the Jewish Guild for the Blind,

is large, fronting on 65th Street, with the panhandle of a former driveway extending on its

western edge north and through to 66th Street. Extell purchased that lot in 2016, and

demolished the Guild’s 11-story building.

22. The proposed building is in the Special Lincoln Square District,

established in 1969 to guide new growth and uses in a way that would complement the newly

sited institutions of Lincoln Center. The great majority of the District is zoned C4-7 (R10

equivalent) (“C4-7/R10”), a commercial designation which also allows the highest level of

residential density in the City. Towers are allowed in this area. Only a very small portion of

the Special District – parts of two blocks comprising 5.3 percent of the District’s area – is

zoned R8, a lower density residential designation where towers are not allowed.

23. Extell’s zoning lot is split between two districts: 64.2 percent of the lot

area is in the C4-7/R10 district and 35.8 percent is in the R8 district. The dividing line between

the zoning districts runs east-west right through the middle of Extell’s zoning lot, with the

northern side zoned C4-7/R10 and the southern side zoned R8.

24. The current zoning rules for the Special District are the result of

amendments enacted in 1993, when residents outraged by the Millennium Tower urged the

City Planning Department to downzone the District. The Department then conducted a Zoning

Review which proposed the Bulk Packing and Tower Coverage Rules to regulate the height of

towers. The Department’s proposals were drafted with a view toward regulating six potential

development sites that the Zoning Review had identified within the District. All six potential

8 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

sites were in the highest residential density (C4-7/R10) portion of the Special District, where

towers are allowed. One of the sites was the “ABC assemblage,” comprising three lots with

small buildings fronting on 66th Street, which now forms part of Extell’s development lot.

None of the sites identified for potential development were located in the R8 portion of the

Special District, where towers are not allowed.

B. Extell’s Duplicitous Application to Build a 25-Story Building

25. On November 24, 2015, Extell applied for a permit to build a relatively

modest 25-story, 292-foot-tall residential building with a community facility on four small tax

lots along 66th Street. On June 7, 2017, the Department of Buildings (“DOB”) issued a New

Building permit for that anodyne building. Thereafter, Extell proceeded with foundation work

on the site.

26. In fact, Extell never intended to build this building. Already in April 2015,

seven months before it filed for that permit, it had completed plans for the much larger building

at issue here – a building more than twice the size. In June 2016, a year before DOB approved

Extell’s supposed plans for the smaller building, the Attorney General had approved the Jewish

Guild’s sale to Extell of its large building fronting on 65th Street.

27. On December 13, 2017, Extell filed its plans for the 775-foot building.

Meanwhile, it continued to build pursuant to its June 7, 2017 permit. Under this disingenuous

cover, it has been able to work undisturbed for almost two solid years.

C. DOB’s Approval of Extell’s Zoning Diagram for Its Megatower, the

Resulting Zoning Challenge and Appeal to the BSA, and DOB’s Notice of
Intent to Revoke Its Approval

28. On July 26, 2018, DOB approved one piece of Extell’s permit application

for its 775-foot building: the Zoning Diagram (known as a “ZD1”). This gave the public its

first detailed look at Extell’s proposal and its first opportunity to challenge it. In response, on

9 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

September 9, 2018, Landmark West! (LW!), an Upper West Side advocacy organization, and

Plaintiff 10 West 66th Street Corporation, filed a Zoning Challenge with DOB. Meanwhile,

Extell continued to work pursuant to its permit for the 25-story building.

29. The challengers raised two issues that remain of concern to Plaintiffs:

first, that Extell’s building design relied on an illegal methodology for applying the Bulk

Packing and Tower Coverage Rules; and second, that the building as then proposed had an

enormous 160-foot void that was not a legitimate mechanical space and was not allowed under

the Zoning Resolution.

30. On November 19, 2018, DOB rejected the challenge on all points. With

respect to the 160-foot void, DOB simply stated, “The Zoning Resolution does not prescribe a

height limit for building floors.”

31. With respect to the Bulk Packing Rule, DOB’s response was more

extensive. The challengers had raised the fact that Extell had calculated the bulk below 150

feet based on the entire zoning lot while calculating tower coverage based only on the C4-

7/R10 portion of the lot. They argued that the Bulk Packing and Tower Coverage Rules must

both apply to the same area.

32. DOB’s response followed the reasoning of Extell’s counsel David

Karnovsky, now in private practice but for many years previous General Counsel at the

Department of City Planning. Mr. Karnovsky set forth his argument in a December 18, 2017

email to Council Member Helen Rosenthal’s staff. He and DOB correctly pointed out that

under the Zoning Resolution’s provisions governing split lots (ZR §§ 33-48 and 77-02), the

Tower Coverage Rule can only apply to the C4-7/R10 portion of the zoning lot, where towers

are permitted.

10 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

33. However, following Extell’s counsel, DOB argued that the split lot

provisions did not apply to the Bulk Packing Rule, because the Special District’s version of

that rule “would be applicable to all portions of a zoning lot located within the Special District

regardless of zoning district designations.” Extell’s counsel based his assertion on the fact that

the Bulk Packing Rule for the Special District begins with the phrase “Within the Special

District, . . . .” Because both the R8 and the C4-7/R10 portions of the lot are “within the

Special District,” he argued, the bulk packing calculation must be based on both portions,

notwithstanding the split lot rules.

34. LW! timely appealed to the Board of Standards and Appeals (“BSA”) from

the denial of the Zoning Challenge.

35. However, before the BSA could address the issue, DOB reversed itself: on

January 14, 2019, it issued a Notice of Intent to Revoke Approval of the zoning diagram that

had been the object of LW!’s Zoning Challenge and subsequent appeal to the BSA. The Notice

stated DOB’s intent to revoke the approval within 15 calendar days “unless sufficient

information is presented to the Department to demonstrate that the approval should not be

revoked.” DOB further stated:

The proposed mechanical space on the 18th floor of the Proposed Building does
not meet the definition of ‘accessory use’ of § 12-10 of the New York City
Zoning Resolution. Specifically, the mechanical space with floor-to-floor
height of approximately 160 feet is not customarily found in connection with
residential uses.

36. The Notice did not, however, reconsider whether Extell’s methodology for

calculating the required floor area below 150 feet and the allowable tower floor area violated

the Bulk Packing Rule.

11 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

37. The Notice also announced that it was rescinding its denial of LW!’s

zoning challenge, from which LW! had appealed. As a result, LW!’s appeal to the BSA ground

to a halt.

38. Meanwhile, although DOB had threatened to issue a stop-work order, it

had not done so, leaving Extell free to continue construction.

39. Three months later, on April 4, 2019, DOB reversed itself yet again,

withdrawing its Notice of Intent to Revoke and, on April 11, 2019, for the first time, issuing a

building permit for the 775-foot tower. The architectural plans had changed, though for present

purposes not materially. Apparently in response to objections by the Fire Department, which

had raised safety concerns about the proposed 160-foot void, Extell replaced it with three

smaller ones totaling 176 feet, 16 feet more than the original 160-foot void.

40. The aggregate of these voids and a 20-foot “mechanical” floor below it is

196 feet. In other words, fully one quarter of the height of Extell’s building is taken up by

purported mechanical spaces. The total height of these spaces is unique in the City. A City

Planning Department survey of mechanical spaces in 797 buildings constructed between 2007

and 2018 showed that only seven buildings had mechanical spaces higher than 25 feet, and all

seven were apparently motivated by illegitimate intentions similar to Extell’s.

THE BULK PACKING AND TOWER COVERAGE RULES

41. In 1993, the City Planning Commission approved the tower-on-a-base

amendments, which were intended to limit building height definitively, not only in the Special

Lincoln Square District, but throughout Manhattan’s high-density residential neighborhoods.

The amendments included the Bulk Packing and Tower Coverage Rules as well as other rules

designed to preserve the street wall and promote contextual development.

10

12 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

42. The amendments were approved by the City Planning Commission on

December 20th, in two different versions, one for the Special Lincoln Square District and

another for Manhattan’s high density (R9 and R10) residential districts generally. ZR §§ 82-

34 and 82-36 (Special District rules); ZR § 23-651 (general rules).

43. The Bulk Packing and Tower Coverage Rules govern the distribution of

the allowable square footage within an envelope the size of which is determined by the size of

the lot and the FAR applicable to that area.

44. The Bulk Packing Rule ensures that, of the total allowable floor area that

could otherwise go into the tower, 60 percent will be in the base, below 150 feet. Thus each

square foot of floor area required for the base must come out of the tower, reducing its bulk

and height.

45. The Tower Coverage Rule requires that the tower portion of the building

cover at least 30 percent of the zoning lot area.

46. When applied correctly, these two rules ensure that the number of stories

in the tower portion of the building (i.e., the portion above 150 feet) remains constant

regardless of lot size. As the envelope grows bigger, the square footage in the tower and base

grow proportionately, but the Tower Coverage Rule applied over the larger lot broadens and

extends the tower’s floorplates, keeping its height constant regardless of lot size.

47. The purpose of this legislation was to limit building heights to “the low-

30 stories,” equivalent, at that time, to little over 300 feet.

11

13 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

FIRST CAUSE OF ACTION

EXTELL’S BULK PACKING CALCULATIONS VIOLATE ZR § 82-34

(BULK PACKING) AND ZR §§ 77-02 AND 33-48 (SPLIT LOT RULES)

48. Extell’s proposed building violates Sections 82-34 (Bulk Packing Rule)

and 77-02 and 33-48 (split lot rules) of the New York City Zoning Resolution.

49. The tower-on-a-base rules form an integrated, interlocking mechanism that

relies on lot area and FAR, bulk packing and tower coverage, to shift bulk within the building’s

envelope from the tower to the base. The Tower Coverage Rule requires that the tower portion

of the building cover at least 30 percent of the zoning lot area.

50. This mechanism can work only if the total allowable floor area, tower

coverage and bulk packing are calculated based on a common denominator: one lot size, one

FAR and one set of rules applicable to the entire envelope. Only in this way can it keep the

number of tower floors constant even as lot size varies.

51. The logic of this mechanism dictates that the common denominator in this

case must be that portion of the lot in which towers are allowed. That is the area in which

Extell in fact proposes to put its tower. Extell correctly calculated the total allowable floor

area for the tower portion of the tower-on-a-base based on that area. This is the envelope

within which its tower must fit. It also correctly calculated the minimum coverage requirement

for the tower as 30 percent of that area.

52. However, when Extell did its bulk packing calculation, it did not calculate

the amount permissible in the tower as 40 percent of the FAR allowed in the tower-on-a-base

portion of its lot, but rather as 40 percent of the FAR allowed on the entire lot. Taking

advantage of the split lot situation, it fulfilled the requirement of “60-below-150” with floor

area much of which is outside the envelope, in the portion of its zoning lot where towers are

12

14 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

not allowed. This not only does not reduce the size of the tower, but actually allows Extell to

add to it.

53. This erroneous methodology negates the rule’s purpose. To work right,

the calculation must be zero-sum: the total square footage of the tower and base must add up

to the total allowed on C4-7 portion of the lot.

54. Extell’s own 2019 Zoning Diagram shows how its tower fails to comply

with the required 60/40 ratio between tower and base. All the numbers in what follows are

taken from Extell’s 2019 Zoning Diagram. The amount allowed on the C4-7 portion of the lot

is 421,260 square feet. That same document shows a building base with 329,132 square feet

and a tower with 219,403 square feet, adding up to 548,535 square feet.

55. The result of Extell’s mix-and-match approach is that instead of 60/40, the

ratio of the base to the tower is 48/52 ratio. Only 48 percent of the bulk is in the base and a

majority, 52 percent, is in the tower. This is an inversion of the correct ratio.

56. Moreover, the tower-on-a-base rules’ basic requirement that the total

square footage of the tower and the base not exceed the total allowable square footage is not

met. The square footage of the tower and the base (548,535) adds up to 30 percent more than

the allowed 421,269. The excess tower square footage (50,899) increases the height of the

tower, while the excess base square footage is in a district where towers are not allowed.

57. Removing the excess square footage from the tower and leaving everything

else unchanged would reduce the height of the tower by five floors. At 16-foot floor-to-floor

heights, that adds up to 80 feet, and would bring the building’s height down from 775 feet to

695 feet.

13

15 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

58. The split lot rules dictate that when a zoning lot is split between two

districts, the rules of each portion of the lot apply to that portion and to that portion alone.

Thus, ZR § 77-02 provides:

Whenever a zoning lot is divided by a boundary between two or more districts .

. . each portion of such zoning lot shall be regulated by all the provisions
applicable to the district in which such portion of the zoning lot is located.

Section 33-48 applies this same rule to the precise situation here, stating specifically that the

split-lot rule of ZR § 77-02 applies

whenever a zoning lot is divided by a boundary between a district to which the

provisions of Section 33-45 (Tower Regulations) apply and a district to which
such provisions do not apply.

59. These rules flatly prohibit what Extell has done here.

SECOND CAUSE OF ACTION

EXTELL’S 196 FEET OF PURPORTED MECHANICAL

SPACE VIOLATE ZR §§ 22-12 AND 12-10

60. Extell’s aggregate 196-foot tall volume – nearly 20 conventional floors –

of purported mechanical spaces make up fully one quarter of the height of its building. These

spaces violate both use and bulk restrictions in the Zoning Resolution.

61. These supposed mechanical floors in the middle of the proposed building

are illegal because they do not fall within any Use Group in the Zoning Resolution. Extell

claims that they fall within the Zoning Resolution’s Use Group 2. Use Group 2 allows

residential uses and “accessory uses.” ZR § 22-12. “Accessory uses” is a defined term in the

Zoning Resolution: “An ‘accessory use’: (a) is a use conducted on the same zoning lot as the

principal use . . . ; and (b) is a use which is clearly incidental to, and customarily found in

connection with, such principal use . . . .” ZR § 12-10. These spaces violate the use restrictions

14

16 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

because they are not a use “customarily found in connection with residential uses,” and

therefore do not fit within the Zoning Resolution’s definition of “accessory use.

62. This was what DOB determined when, on January 14, 2019, it issued a

Notice of Intent to Revoke its prior approval of Extell’s 2018 Zoning Diagram:

The proposed mechanical space on the 18th floor of the Proposed Building does
not meet the definition of “accessory use” of § 12-10 of the New York City
Zoning Resolution. Specifically, the mechanical space with floor-to-floor
height of approximately 160 feet is not customarily found in connection with
residential uses.

Although it reversed itself on April 4, 2019, it has not explained why it did so.

63. DOB’s determination that such spaces are not “customarily found in

connection with” residential uses is supported by the City Planning Department’s survey of

mechanical voids, which found that of 797 buildings surveyed, only seven had “excessively

tall” voids. Those were buildings that used the same stratagem as Extell here, placing the

voids below the residential apartments so as to increase their height. Typically, the survey

found, mechanical spaces were only 12 to 15 feet high. In no building other than the seven

did the height of a mechanical space exceed 25 feet. Moreover, not even among those seven

buildings was there one with as much mechanical space height as this building: the survey

found that in no building in the entire city did any of these voids, whether single or multiple

stacked together, aggregate to more than 190 feet.

64. Nor are these enormous voids permissible as “space used for mechanical

equipment,” as provided for in ZR § 12-10. That section excludes such space from the

definition of “floor area” for the purposes of calculating FAR, the basic measure of bulk in the

Zoning Resolution. To qualify for the exclusion, however, the space must actually be “used

for mechanical equipment.” ZR § 12-10 (emphasis added). Nothing in Extell's public

documents supports its claim that this space is necessary to house mechanical equipment.
15

17 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

Indeed, there is no mechanical equipment yet imagined by humans that requires a 48- or 64-

foot tall clearance for accessory use in a residential building.

65. Extell’s mechanical void is not only contrary to the plain language of the

Zoning Resolution, but also contrary to the purpose of the 1993 tower-on-a-base amendments,

which was to limit building heights to “the low-30 stories.” As the Chair of the Planning

Commission, Marisa Lago, stated at a town hall meeting about the proposed zoning text

amendment, the legislative proposal now going through the legislative process is a

clarification, not new law: “The notion that there are empty spaces for the sole purpose of

making the building taller for the views at the top is not what was intended [by the City's

zoning laws].” No one in 1993 anticipated that a developer might insert enormous volumes of

empty space in its building solely to make it higher.

WHEREFORE, Plaintiffs respectfully request that this Court:

(1) On the first cause of action, enter a judgment pursuant to CPLR § 3001

declaring that Extell’s bulk packing calculations violate ZR § 82-34 (bulk

packing) and ZR §§ 77-02 and 33-48 (split lot rules), and an order

enjoining Extell from taking any further steps in the construction of 36

West 66th Street, New York, New York; and

(2) On the second cause of action, enter a judgment pursuant to CPLR §

3001 declaring that the excessive height, both singly and in total, of

Extell’s so-called mechanical spaces violates ZR §§ 22-12 (Residential

Uses) and 12-10 (definitions of “accessory use” and “space used for

mechanical equipment”), and an order enjoining Extell from taking any

16

18 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

further steps in the construction of 36 West 66th Street, New York, New

York

(3) Award Plaintiffs their costs, disbursements and expenses, including

reasonable attorneys’ fees; and

(4) Grant such other and further relief as this Court may deem necessary.

Dated: Brooklyn, New York

April 24, 2019

Respectfully submitted,

______________/s/_______________
JOHN R. LOW-BEER
415 8th Street
Brooklyn, NY 11215
(718) 499-2590
jlowbeer@yahoo.com

______________/s/_______________
CHARLES N. WEINSTOCK
8 Old Fulton Street
Brooklyn, NY 11201
(323) 791-1500
cweinstock@mac.com

17

19 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

20 of 21
FILED: NEW YORK COUNTY CLERK 04/24/2019 04:01 PM INDEX NO. 154205/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/24/2019

VERIFICATION

JOHN WALDES, being duly sworn, deposes and says:

I am President of the 10 West 66th Street Corporation, a Plaintiff in the within

action. I have read the foregoing Complaint and know the contents thereof. The

same is true to my own knowledge except as to matters therein alleged upon

information and belief, and as to those matters, I believe them to be true.

Sworn to before me this

23rd day of April, 2019

YELENA SVERDLCM.
Notary Public. State tA New York
No. 01SV6303481
Qualified in RichmOnd Countt .
CommiSSiOn ExpireS 05112120-'A,l

21 of 21