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Land Use, Housing & Zoning

34 West 38 Street, application to BSA requesting a six-month renewal of a permit to complete construction of a hotel.

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, 34 West 38th LLC (the “Applicant”) is requesting the Board of Standards and Appeals (the “BSA”) to renew a building permit (the “Existing Permit”), pursuant to Zoning Resolution (“ZR”) Section 11-332, for a 27-story hotel (the “Hotel”) at 36 West 38th Street, NY, NY, 10018 in a M1-6 zoning district; and

WHEREAS, The Existing Permit was issued prior to the December 20, 2018 amendment to the ZR, which provides that a hotel in a M-1 zoning district 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, accordingly, the Existing Permit expired before construction could be completed; and

WHEREAS, A permit for the Hotel for excavation and foundation work was issued in April, 2018, and the Department of Buildings issued the Existing Permit prior to April 31, 2018; and

WHEREAS, Due to the project excavation prior to April 31, 2018, this hotel is being constructed “As of Right” and not subject to the current requirement for a Special Permit “ZR-42-111” for a hotel to be constructed in a M-1 district in New York City; and

WHEREAS, In accordance with Section 11-332 of the ZR, the Applicant is requesting the BSA approve a six-month extension of the existing building permit so that the construction can be completed and receive a Certificate of Occupancy; and

WHEREAS, Pursuant to Section 11-332 of the ZR the requirements for the Renewed Permit are:

An application to renew the building permit may be made to the Board of Standards and Appeals not more than 30 days after the lapse of such building permit.  The Board may renew such building permit for two terms of not more than two years each for a minor development or three terms of not more than two years each for a major development or one term of not more than three months for other construction.  In granting such an extension, the Board shall find that substantial construction has been completed and substantial expenditures made, subsequent to the granting of the permit, for work required by any applicable law for the use or development of the property pursuant to the permit; and

WHEREAS, If the permit were to expire a hotel would not be allowed “As of Right” on this site due to new zoning restrictions that require a special permit; and

WHEREAS, The Applicant represented that at least 5% of the total hard costs ($2.2MM of $36.7MM) of the project has been spent and at least 5% of physical construction completed; and

WHEREAS, While there is no subjective definition of how to measure the % of estimated construction and costs spent; and

WHEREAS, The delays were due to market conditions with financing and construction loans for the project, exasperated by the COVID 19 Pandemic in New York City, New York Country, and New York State; and

WHEREAS, The new hotel project will be non-union; and

WHEREAS, Community Board Five is on record not supporting hotel construction in this district, however  the project was started before December, 2018 (April 23, 2018) and meets the requirements of that allowance under ZR-11-332; and

WHEREAS, If a new project on this site were to come for public review, Community Board Five would not support a hotel via “Special Permit” ZR-42-111 at this M1-6 site “34 West 38th Street NY, NY 10018; and

WHEREAS, According to the testimony of the Applicant it appears that substantial construction and costs have been accrued on this site; therefore, be it

RESOLVED, Community Board Five recommends approval of 36 West 38th LLC’s request for a Renewed “Extension” Permit, pursuant to Section 11-332 of the ZR, for the construction of a hotel located at 26-30 West 39th Street.

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