<< Back
Land Use, Housing & Zoning
142 West 29th Street, application for a zoning variance to allow the creation of a new 15 story residential building with ground floor retail in what is currently a manufacturing zone. The current 33-foot building would rise to 169 feet
WHEREAS, The property at 142 West 29th Street is a two-story retail and office building located in a M1-6 district, which permits a base permitted Floor Area Ratio (FAR) of 10.0; and
WHEREAS, The property has 32.5' of street frontage along the south side of West 29th Street between Sixth and Seventh Avenue; and
WHEREAS, The applicant is seeking a variance for for use and bulk (front and rear wall heights and setbacks), pursuant to Section 72-21 of the Zoning Resolution of the City of New York ("ZR"), within an M1-6 zoning district, to redevelop the 3,209 square foot Premises which is currently improved upon with a two (2) story, 5,870.38 sq/ft, Use Group 2 retail building; and
WHEREAS, The building was constructed in 1929. Today, as depicted on the existing plan set and photographs, the building is currently occupied by:
• 1st floor and mezzanine:
'Henna Impex, Inc' with a month-to-month tenancy;
'Jings Fashion, Inc.' with a month-to-month tenancy.
• 2nd floor: New Frontier Church - the lease expires on July 31, 2018; and
WHEREAS, If approved, the application would allow a new fifteen (15) story, 32,093 square foot (10.0 FAR) mixed use building with Use Group 6 retail use on the ground floor and thirty-seven (37) Use Group 2 residential units on the upper floors, that would rise to a height of 159 feet; and
WHEREAS, The variance is required as the proposed Use Group 2 residential use is contrary to the applicable M1-6 use regulations pursuant to ZR4 2-00; and
WHEREAS, In order to be eligible for a variance under Section 72-21 of the Zoning Resolution, each of the waivers an applicant is seeking must satisfy all five specific findings set forth in the Zoning Resolution. Failure to satisfy any one of the five findings would result in a rejection of the application.
The five findings are:
(a) that there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the #use# or #bulk# provisions of the Resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located;
(b) that because of such physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this Resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such #zoning lot#; this finding shall not be required for the granting of a variance to a non-profit organization;
(c) that the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare;
(d) that the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title; however where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship; and
(e) that within the intent and purposes of this Resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.; and
WHEREAS, Finding (a) is not met because the alleged conditions are not unique physical conditions: The building width is not uniquely narrow. 39% of properties in the midtown south M1-6 districts (on both sides of 6th Avenue) have a building width as narrow or narrower; and
WHEREAS, Finding (a) Applicant's assertion that the existing property is functionally obsolete—and that such obsolescence is a unique physical condition—has not been proven and there is no evidence that even if the building were considered functionally obsolete that such obsolesces would in any way cause "practical difficulties or unnecessary hardship… in complying strictly with the use or bulk provisions of the Resolution"; and
WHEREAS, The real-estate agent representing the property for sale for as-of-right use describes the property as having "32.5' of valuable retail frontage along the south side of West 29th and describes the lot as follows: "The generous lot size of 3,224 square feet equates to an as-of-right development of approximately 32,240 buildable square feet" dispelling the notion that the width or size of the lot are unique physical conditions causing the alleged hardship; and
WHEREAS, We believe any methodology suggested by applicant to establish that this existing building is functionally obsolete could be similarly used to "prove" that any M1-6 building built in the 1900s, 1910s, 1920s or 1930s at more than 2 FAR is ALSO also functionally obsolete—and therefore could not be excluded in their uniqueness study; and
WHEREAS, Applicant's assertion that the existing property is functionally obsolete—and that such obsolescence is a unique physical condition—has not been proven and there is no evidence that even if the building were considered functionally obsolete that such obsolesces would in any way cause "practical difficulties or unnecessary hardship… in complying strictly with the #use# or #bulk# provisions of the Resolution"; and
WHEREAS, Even if the building were determined to be functionally obsolete and somehow impaired full development of the site in conformance with the M1-D zoning regulations, the building was built in 1929 by a previous owner and therefore would not meet the qualifying threshold for the A finding; and
WHEREAS, Even were the BSA to believe that there are unique physical conditions on this site, finding (b) is not met because there is no concrete evidence that any alleged "unique physical conditions" cause an inability to realize a reasonable return on the subject site; and
WHEREAS, Applicant has provided no evidence that a comparable site with a width in excess of 40 feet and without an existing 2-story structure would achieve a reasonable economic return using their methodology—a necessary condition to establish that the width and existing structure somehow cause an economic hardship for purposes of establishing the (b) finding; and
WHEREAS, The as-of-right developments economic analysis for hotel development bases its analysis on 46 hotel rooms, with rooms ranging from 274 sq ft. (6 rooms) to 530 sq ft. or more, some with terraces (10 rooms), with an average of 400 SF per room, far exceeding the average size of a hotel room in NYC which is 265 sq ft, according to various sources; and
WHEREAS, While using far larger hotel rooms and room amenities (terraces), the economic analysis is using the average room rate, which is based on average size for all modeled hotel units; and
WHEREAS, The applicant agrees that other hotel developers such as 1162 Broadway are able to develop a lot narrower than theirs as a 52 room hotel with 26 ft frontage, and a total of 24,325 sq ft with conforming use, because, according to the applicant, of design efficiency, the lack of applicant's design efficiency is not caused by the physical condition of their site but rather by poor use of space; and
WHEREAS, According to the hotel plans analysis, the total rough square footage for floors 2 to 6 is 12,795 SF, but the total net square footage allocated to rooms is 8,355 sq ft, which is only 65% of the total square feet, when the average ratio of gross to net square footage in hotel development is 74%, according to a Cornell University School of Hotel Administration study published by Jan A. deRoos in 2011; and
WHEREAS, The proposed design inefficiency itself is to blame for not yielding more hotel rooms, which would produce more revenue as shown with dozens of other hotels developed since 1961 in New York City on lots of 33 ft of width or narrower; and
WHEREAS, We seriously question a number of the assumptions used by the applicant in their economic analysis used to value the as-of-right developments as well as their possible return on investment (e.g., cap rate, use of comparables for establishing acquisition price, residential rental price, retail price, etc); and
WHEREAS, The theoretical acquisition price cited by the applicant has no basis in the fundamental economics of what's viable on this property or on comparable M1-6 properties that would be developed in conformance with the Zoning Resolution—and therefore reflects an unreasonable price that should not be used for the (b) finding; and
WHEREAS, Finding (c) is not met as the proposed variance would "alter the essential character of the neighborhood" by depriving an opportunity to build Class B office space which is in extremely high demand by small businesses in the community district or hotel space; and
WHEREAS, A 100% residential building on the mid block between 6th and 7th Avenues at 29th Street would alter the manufacturing and commercial nature of the area in an irreversible way; and
WHEREAS, Finding (c) is not met because Community Board Five finds that the proposed development would "be detrimental to the public welfare" because it would introduce new residential units not permitted as-of-right yet not mitigate for the adverse impact by creating new school seats for the local zoned school; and
WHEREAS, As-of-right levels of residential development are already overburdening local public schools and new residential cannot be permitted unless new schools seats are created; and
WHEREAS, Even if the BSA believes that the presence of an existing 2 story building with conforming use is a "unique physical condition" resulting in a hardship, finding (d) is not met because a predecessor in title elected in 1929 to construct a 2-story building when his or her neighbors in the surrounding blocks were developing 10+ story buildings; and
WHEREAS, Even if the BSA were to accept other arguments in this case, finding (e) is not met as the as-of-right developments can be profitable and therefore the use change is not necessary to relieve hardship; and
WHEREAS, Even if the BSA were to accept other arguments in this case, which it should not, finding (e) is further not met because residential condominium development (not modeled by the applicant) would result in a significantly higher projected project value and thus result in an approved variance providing far more than a minimum relief; and
WHEREAS, Even if the BSA were to accept other arguments in this case, which it should not, finding (e) is additionally not met because the residential rental development is modeled paying full property taxes, which is entirely unreasonable as the vast majority of rental development in Manhattan uses the 421-a property tax exemption—which, if used, would result in a significantly higher project value; and
WHEREAS, While failure to meet any single finding would be sufficient grounds for a BSA denial, CB5 believes that the proposed variance fails to meet each and every one of the required five findings; and therefore be it
RESOLVED, Community Board Five recommends denial of the application for a variance pursuant to ZR §72-21 for 142 West 29th Street to allow residential use and bulk modifications 142 West 29th Street in an M1-6 district.