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Land Use, Housing & Zoning
112-116 West 28th street, application for enlargement to an existing hotel contrary to use regulation ZR 42-111
At the regularly scheduled monthly Community Board Five meeting on Thursday, October 14, 2021, the following resolution passed with a vote of 36 in favor; 0 opposed; 1 abstaining:
WHEREAS, The owner of the Subject Property at 112-116 West 28th Street (the “Applicant”) filed an application for a use variance pursuant to Section 72-21 of the Zoning Resolution of the City of New York (“ZR”), seeking a Board of Standards and Appeals variance of ZR Section 42-111, within an M1-6 zoning district, to permit the development of a eighteen (18) story, 217 foot tall, 59,000 square foot (9.97 FAR), 179 transient unit hotel; and
WHEREAS, The premises of 112-116 West 28th Street (identified by the City of New York as Block 803, Lot 49 in Manhattan) is 5,925 square feet of lot area, 60 foot frontage and 98.75ft depth, and is located in an M1-6 zoning district between 6th and 7th Avenues, wherein hotel uses are permitted with a special permit; and
WHEREAS, Former Lot 48 (112 West 28th Street), which was purchased by the Applicant in June 2012, and former Lot 49 (114-116 West 28th Street), which was purchased by the Applicant in 2005, had a Zoning Lot merger in November 2018 to create the current, enlarged Lot 49; and
WHEREAS, The Proposed Building would be on the former Lot 48, which measures as a 1,975 square feet of lot area, 20 foot frontage and 98.75ft depth, would have commercial or retail use at the ground floor, and 67 additional transient hotel units above, which would enlarge by 33% the zoning floor area of the existing 2010 built, 17-story, 39,000 square foot, 112 transient unit hotel currently operating as the Marriott Fairfield Inn Manhattan/Chelsea; and
WHEREAS, For a comparative analysis of the Proposed Building, the Applicant used an alternate As-of-Right development with a 15-story, 20,112 square foot, 9.98 FAR, 179 foot tall Commercial office building with 1,050 square feet of useable office space on the first nine floors and 700 square feet of useable office space on the top six floors; and
WHEREAS, The existing four-story commercial building on former Lot 48 has been vacant since 2018, had a Partial Department of Buildings (DOB) Work Permit for hotel expansion in November 2018, two DOB demolition permits in April 2018 and February 2019, has an ongoing DOB Stop Work Order from September 2019, currently has holes in its roof, and scaffolding supporting a sidewalk shed in front, and the Applicant was unable to explain how much money has been spent on demolition or how much demolition has been completed as of 2021; and
WHEREAS, On December 20, 2018, ZR 42-111 Hotel Special Permits for M1 Districts was enacted into the Zoning Resolution, after a public announcement by the Department of City Planning on April 23, 2018 and public hearings by Community Boards, Borough Presidents, the City Planning Commission, and the City Council throughout the summer and fall of 2018, although the Applicant’s representative was not sure if the Applicant was aware of this; and
WHEREAS, The Hotel Special Permit for M1 Districts allows for hotel use in M1 zoning districts through a modified ULURP process that encourages development that integrates itself within the neighborhood and the text amendment allowed for a transition/“grandfathered in” period for projects that had DOB-approved Entire (not partial) work plans by December 20, 2018 and could show substantial interest and investment; and
WHEREAS, In order to be eligible for a variance under Section 72-21 of the Zoning Resolution, an applicant is responsible to demonstrate that the variance meets or satisfies ALL five specific findings set forth in the Zoning Resolution and failure to satisfy any one of the five findings would result in a rejection of the application
The five findings are:
(a) “Uniqueness” 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) “Financial Hardship” 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) “Neighborhood Character” 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) “Self-Created Hardship” 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) “Minimum Variance” 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, The Applicant contends that the portion of the enlarged, merged lot, that was formerly Lot 48, is uniquely small, having a width of 20 feet and a depth of 98.75 feet, and the Applicant contends that the lot is not suitable for the alternate As-of-Right commercial office building; and
WHEREAS, In the Applicant’s Statement of Facts and Findings, eleven other lots with widths of 20 feet or fewer are identified within a ¼ mile radius from former Lot 48, which suggests that the former Lot is not unique in the neighborhood, however Finding (a) specifies that the dimensions of the zoning lot (not the development site or the former lot) are to be evaluated, which in this case the enlarged, merged Lot 49 has a width of 60 feet, therefore the Proposed Building fails to meet Finding (a); and
WHEREAS, The Applicant contends that the development of the As-of-Right commercial office building would not provide for a reasonable return on investment and result in a net loss of 6.3% based on $41.6 million annual net operating income and $50.5 million development costs, and the Applicant contends that the development of the Proposed Building would provide a reasonable return on investment and result in a net profit of 0.1% based on $53.8 million annual net operating income and $53.7 million development costs; and
WHEREAS, The Applicant’s financial analysis for hotel use and office use was done using 2020 pandemic numbers and the Applicant could not provide more information or answer questions about the analysis during the public hearing, therefore it is unclear whether the Proposed Building satisfies Finding (b); and
WHEREAS, The Applicant contends that the development of the Proposed Building would fit well within the character of the neighborhood as there are currently, or soon to be, a total of 8 hotels on this block of West 28th Street; and
WHEREAS, The Applicant could not provide the Community Board with any environmental or traffic impact studies that analyzed what, if any, the Proposed Building would have on the neighborhood, and residents of three buildings on the block spoke at LUHZ Committee hearing about not wanting anymore years of construction traffic after living with over a decade of continuous hotel development on this one block, therefore because there is no data on how the neighborhood would be impacted by this development, it is unclear how the Proposed Building can satisfy Finding (c); and
WHEREAS, The Applicant contends that the existing condition of the premises is not due to any self-created hardship; and
WHEREAS, The Applicant stated during the public hearing that the four-story Lot 48 building was bought in 2012, the same date is stated on Page 2 of the application’s Statement of Facts and Findings and on the June 6, 2012 Deed, however this is not what is indicated on page 10 under the discussion of Self-Created Hardship in the Statement of Facts: “the building was acquired in August of 2018”; and
WHEREAS, The Applicant had six years, from June 2012 until April 2018, to redevelop as-of-right the four-story building as a hotel while it was Lot 48, and the Applicant failed to be “grandfathered in” by submitting entire work plans to DOB during the eight months starting in April 2018, when the Applicant merged the two lots and enlarged Lot 49, and ending on December 20, 2018, when M1 District Hotel Special Permit was enacted into the Zoning Resolution, and furthermore in the three years since December 2018, the Applicant has failed to demonstrate clear intent to demolish four-story building or provide any analysis that demonstrates substantial investment or substantial demolition work has been completed, therefore the Proposed Building fails to meet Finding (d); and
WHEREAS, The Applicant contends that the Proposed Building would be a minimal variance compared to the As-of-Right commercial building; and
WHEREAS, A use variance is not necessary to develop a hotel since the Hotel Special Permit, as designed by the Zoning Text Amendment passed in December 2018, is the appropriate zoning mechanism for the Proposed Building, therefore the Proposed Building fails to meet Finding (e); and
WHEREAS, Granting a use variance at this location would amount to spot zoning, a practice that has been very detrimental to proper land use planning and growth in our district, and granting a variance to this application would undermine the whole purpose of seeking relief from the Board of Standards and Appeals as the recourse of last resort, when all other options have been exhausted; therefore be it
RESOLVED, Community Board Five recommends denial of the application for a BSA variance to permit the enlargement of an existing hotel to become a 18-story, 179 transient unit hotel with commercial ground floor in an M1-6 district at 112-116 West 28th Street because it does not clearly meet any of the five required findings, and be it further
RESOLVED, Community Board Five strongly encourages any applicant to take advantage of all available mechanisms, in the Zoning Resolution, including the use of a Hotel Special Permit, instead of applying for a variance from the BSA.