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Land Use, Housing & Zoning
Application to continue the construction of a hotel pursuant to ZR section 11-332, special provisions for hotels in M1 districts, which requires hotels in manufacturing zones to seek special permit approval at 1227 Broadway
At the regularly scheduled monthly Community Board Five meeting on Thursday, March 10, 2022, the following resolution passed with a vote of 37 in favor; 0 opposed; 1 abstaining:
WHEREAS, JLAM Management, the owner of the Subject Property at 1227 Broadway (the “Applicant”) is requesting the Board of Standards and Appeals (the “BSA”) to renew a lapsed building permit (the “Previous Permit”) pursuant to Zoning Resolution (“ZR”) Sections 42-111(e) and 11-332(b), to complete construction of a 38-story hotel (the “Hotel”); and
WHEREAS, The Subject Property is located on a 30,150 square foot lot that is identified as both 1227 Broadway and as Block 831, Lot 68, which has the entire block frontage on the west side of Broadway between West 29th and West 30th Streets, and, is entirely in a M1-6 zoning district; and
WHEREAS, The Subject Property has a 38-story, 509 feet tall building with 301,545 total square feet of floor area that, when it is completed, will be operated as a 463-room hotel with ground and second floor retail, which will be managed by Virgin Group as one of their flagship properties, named Virgin Hotel New York City; and
WHEREAS, The Previous Permit for the building was issued prior to a December 20, 2018 amendment to the Zoning Resolution (ZR 42-111: “M-1 Hotel Special Permit”), which provided that a hotel in a M-1 zoning district would no longer be permitted as-of-right, but only if a special permit is approved by the City Planning Commission and the City Council, and;
WHEREAS, the ZR subsection 42-111(e) of the M-1 Hotel Special Permit provided for two ways for an Applicant to appeal to the BSA to be “grandfathered in” and continue to develop a hotel as of right:
- The Applicant lawfully obtained their building permits and completed all foundation work before December 20, 2018 or
- The Applicant lawfully obtained their building permits before April 23, 2018 and complete construction by lawfully obtaining a certificate (or temporary certificate) of occupancy by December 20, 2021; and
WHEREAS, if an Applicant either did not have their foundation completed by December 20, 2018 or if an applicant did not obtain any certificate of occupancy by December 20, 2021, their permit would automatically lapse; and
WHEREAS, The Applicant did lawfully obtain their building permit for 1227 Broadway on October 1, 2015 and completed all foundation work on March 31, 2017, but the applicant did not obtain any type of certificate of occupancy by December 20, 2021; and
WHEREAS, ZR 42-111(e) also says that the Applicant has the right to appeal to the BSA in order to request an extension of the building permit for construction to continue as long as the Applicant meets the provisions outlined in ZR 11–332; and
WHEREAS, ZR 11-332(b) says the BSA must find that the applicant meets three findings:
(1) that the Applicant has been prevented from completing such construction by hardship or circumstances beyond the Applicant's control;
(2) that the Applicant has not recovered all or substantially all of the financial expenditures incurred in construction, nor is the Applicant able to recover substantially all of the financial expenditures incurred through development that conforms and complies with any applicable amendment to this Resolution; and
(3) that there are no considerations of public safety, health and welfare that have become apparent since the issuance of the permit that indicate an overriding; and
WHEREAS, For Finding 1, the Applicant cited the covid pandemic as the hardship and circumstances that was beyond the Applicant’s control, which included the State suspension of all non-essential construction from March 30, 2020 to June 8, 2020 and, also, not having enough healthy workers for almost one year for construction to restart; and
WHEREAS, For Finding 2, the Applicant stated it would be a huge financial loss to abandon the hotel development now and cited they have paid approximately 93% of all expenditures as of October 31, 2021 ($183,035,845.06 of the $195,966,425.35 total cost of the development), and as of December 20, 2021, 97% of the work has been completed (1,657 days out of the total 1,703 work days scheduled for the development), including 100% of the superstructure is built and enclosed, 100% of all vertical transportation is built and installed, 100% of interior fit-out, mechanical floors fit-out, electrical, and fire alarms have been completed, and 90% of the lobby and amenity fit-out on the ground floor is completed; and
WHEREAS, For Finding 3, the Applicant did not include any materials in their application and stated that they did not agree that ZR 11-332(b)(3) was applicable to their variance application; and
WHEREAS, when the Community Board asked the Applicant about the media reports and the DOB violations that were regarding the death of a 24 year-old male construction worker at the 1227 Broadway development site on October 24, 2019, the Applicant cited ongoing litigation for not being able to discuss the issue, and the Applicant also stated that the DOB work stop order lasted for about 6 weeks, after which DOB allowed work to restart; and
WHEREAS, Community Board Five agrees that the Applicant has met the finding of ZR 11-332(b)(1); Unforeseen hardship by the pandemic and the finding of ZR 11-332(b)(2), substantial expenditures paid and substantial construction completed that cannot be recovered financially without allowing construction to continue; and
WHEREAS, Community Board Five would like the Applicant to include some type of acknowledgment, information, or discussion that the Applicant desires to meet the finding of ZR 11-332(b)(3) public safety and welfare, notwithstanding the tragic accident and loss of life, in order to demonstrate to the community, including neighbors, patrons, and employees, that the Applicant is concerned for public safety and community welfare; and therefore, be it
RESOLVED, that Community Board Five recommends conditional approval of the application for 1227 Broadway to continue construction of a hotel pursuant to ZR section 11-332 with the condition that the Applicant and the Board of Standards and Appeals discuss and evaluate the merits of the Applicant meeting the findings of ZR 11-332(b)(3).