Kramer Levin’s Zoning Arguments Prevail at New York Appellate Division

On March 2, 2023, the Appellate Division, First Judicial Department, issued a decision upholding the permit issued to SJP Properties and Mitsui Fudosan America (collectively, SJP) to construct a new 55-story building at 200 Amsterdam Ave. The Appellate Division’s decision reversed a June 2019 ruling by the Supreme Court that invalidated the permit and ordered the demolition of an unspecified number of previously built floors in the building.

The case arose out of a challenge to the 200 Amsterdam permit by a civic group and a number of Upper West Side elected officials and residents. The challengers had argued that the building permit should be revoked on the theory that the zoning lot for the project impermissibly included partial tax lots. Their argument was rejected by the Department of Buildings (DOB) and, in two separate decisions, by the Board of Standards and Appeals (BSA). The BSA concluded that the language of the Zoning Resolution on the permissibility of including a partial tax lot in a zoning lot is ambiguous; that allowing such inclusion was consistent with the historical right of an owner under the Zoning Resolution to define the parameters of its own zoning lot, subject only to the limitations explicitly set forth in the Zoning Resolution; that its interpretation was consistent with 40 years of practice by the DOB, BSA and City Planning Commission on which SJP was entitled to rely; and that even if the DOB were to change its interpretation, it could and should apply that new interpretation prospectively only, and not to applications it had already approved.

The Supreme Court overturned both of the BSA’s decisions, holding that the relevant provisions of the Zoning Resolution were unambiguous; that a zoning lot cannot include partial tax lots; that SJP’s reliance on the permit was unreasonable; and that an unspecified number of floors in the building must be demolished.

The Appellate Division’s reversal was based on both the arguments included in the BSA decision and the mootness of the case by reason of the substantial completion of the building while the litigation was pending. The ruling allows SJP to complete the final stages of construction and obtain certificates of occupancy for the building.

Kramer Levin represented SJP and Mitsui through the initial permitting process at the DOB and through the two appeals at the BSA. The firm also served as Of Counsel on the litigation in both the Supreme Court and the Appellate Division.