Apartment Tower on 66th Street Loses Lawsuit Over ‘Blatant Jacking-Up’

A rendering of 50 West 66th Street.

A state judge ruled against Extell Development in a lawsuit that challenged the developer’s use of “mechanical voids” that helped lift the proposed building to 775 feet. The building at 50 West 66th Street would be the tallest on the Upper West Side, but it’s raised controversy because critics say it uses a loophole to lift the building above heights allowed in zoning rules. Construction on the site has been stalled for months amid the pandemic and legal challenges.

While developers need space for mechanical equipment like elevator equipment and plumbing, Judge Arthur Engoron wrote that there are clearly other benefits too. The building at 50 West 66th Street includes nearly 200 feet of height for mechanical space, accounting for more than 25% of the building.

“These ‘mechanical floors,’ also boost the height of buildings, and this Court will take judicial notice of the fact that the higher an apartment, the higher the purchase price or rent it can command,” he wrote. “Developers have, thus, increased the number and height of mechanical floors, called by some cynics “mechanical voids,” to raise the height of buildings. The Developer has taken this tactic to a whole new level.”

The judge found that Extell’s use of voids went well beyond a modest section of the building.

“This blatant jacking-up of close to 200-feet (originally set at 214-feet, with a cavernous 160-feet floor, more appropriate for a satellite transmission tower or a circus big-top) is too brazen to be called a ‘subterfuge’; rather, the Developer simply thumbed its nose at the rules. The Proposal’s mechanical voids would be ingenious if they were not so transparent (the word “chutzpah” comes to mind). No sane system of city planning, and no sane system of judicial adjudication would allow developers to end-run around height-limits by including in buildings gargantuan mechanical spaces that may not even contain mechanical equipment and have no purpose other than to augment height beyond otherwise legal limits.”

The city changed rules about mechanical sections last year in a way that limits the size of mechanical space, but Extell had expected its application would be grandfathered in. The Board of Standards & Appeals, which rules on zoning disputes, gave Extell the go-ahead in a split vote. But City Club of New York, a nonprofit civic group, sued to stop the project, arguing that the mechanical sections violated zoning rules even before the city made the law more restrictive.

“This decision is good news for people who want to see the zoning resolution rules followed and ensure that developers are held accountable,” Borough President Gale Brewer wrote on Twitter. “Mechanical voids that don’t actually hold mechanical equipment are counter to logic and, now, to zoning.”

Extell plans to fight the decision, a spokesperson told Gothamist.

“The court’s decision overturns a unanimous, well-reasoned decision of the New York City Board of Standards and Appeals (BSA), the expert body which correctly concluded that Extell’s building plan complies with all applicable zoning regulations,“ Extell said in a statement.

NEWS, REAL ESTATE | 50 comments | permalink
    1. Bob Lamm says:

      Great news. I hope Extell spends tons on its appeal and loses.

    2. Rob G. says:

      Gale Brewer needs to stop obsessing about heights of buildings and instead focus on the problems at street level.

      • CrankyPants says:

        Best comment of the day, Rob. It is a beautiful building, to boot.

      • Will says:

        She can walk and chew gum at the same time. Besides it’s only a certain few that feel like the sky is falling when it comes to the culture of the street. The rest of us mind our business and remain unbothered.

        • Rob G. says:

          @Will: Minding your own business and “remaining unbothered” is the same thing as burying your head in the sand. And makes you part of the problem. Luckily, it is you who are in the minority. The rest of us will keep fighting for what’s right and fair for our neighborhood.

      • Bruce Bernstein says:

        Anyone who was out on Broadway today, seeing the hundreds taking part in peaceful outdoor dining, knows that the UWS is not “spiraling out of control.” That is just right wing chicken-little blather. I was further very happy to join many of my neighbors from Open Hearts UWS in a short march in support of the Lucerne residents.

        • Bob Lamm says:

          So sorry, Bruce, that I didn’t know you were on the UWS Open Hearts march today, as I was. Would have liked to say hello and thank you for your many great posts on this blog.

          • Bruce Bernstein says:

            thank you, Bob. I too would have liked to meet you.

            But sadly, more and more of my comments on WSR (including those under 100 words) have been getting censored. Thus you might see me here less.

        • Rob G. says:

          Bruce, I know this is hard for you to understand, but being vocal about our very real downward trend doesn’t automatically make them a chicken-little-right-wing-blatherer. On the flip side, not everyone enjoying themselves on Broadway today is a radical left wing socialists like yourself.

          • Bruce Bernstein says:

            You have been moaning and groaning about the so-called “downward trend” for many years now. I guess it is a very slow moving trend!

            Of course we have more homelessness, in the midst of this huge economic downturn. But i walked from 72nd to 100th on Sunday and saw a total of ONE “encampment”, consisting of one person. It looks like the homeless outreach from Goddard Riverside is doing a great job.

            You seem very convinced you are in the majority with your views. I have news for you: when Open Hearts UWS marched on Sunday, the people on the sidewalk and in the outdoor dining areas gave us a great reception: fists, claps, etc. maybe people are rejecting prejudice against the poor. Just a guess.

          • Bruce Bernstein says:

            reply to Rob. G:

            You have been whining about the “downward trend” for years now. I guess it is a very slow-moving trend!

            Of course we have more homelessness, in this economic downturn. But i walked from 72nd-100th Sunday and saw only ONE “encampment”, consisting of one person. It looks like the homeless outreach from Goddard Riverside is doing a great job.

            You believe you are in the majority with your views. But when Open Hearts marched Sunday, the people on the sidewalk gave us a great reception: fists, claps, etc. Maybe people are rejecting prejudice against the poor. Just guessing.

          • Bruce Bernstein says:

            PS to Rob G:

            I don’t really care if the 1,000s of people safely enjoying themselves on Bway on Sunday were socialists, liberals, moderates, or Republicans. God bless them all! they were all proving that the UWS is not in the midst of “American carnage”, and that NYC will come back, despite the fevered cries of the chicken littles.

            And I’m proud of the great supportive housing programs we have… which alleviate homelessness. Could you imagine if these programs were closed?

        • Mike says:

          What does any of your statement have to do with the proposed tower that this post is about?

      • Jerry says:

        My wife and I (celebrating a major milestone/birthday) were out for dinner Thursday, lunch and dinner Friday and Saturday, and lunch Sunday. In addition to meals with friends and family, we walked the neighborhood (90th-72nd, CPW-Broadway) and were in Central Park. We had an absolutely wonderful time…and from our observation many, many other people did too. I agree with Bruce about the chicken-little blather. And our adventures included intervening in a fight at 86th & Broadway on Thursday night around 9. We appreciate safety and order as much as anybody, but we’re not afraid and don’t expect “street culture” in one of the largest, most diverse cities in the world to resemble Disneyworld.

    3. UWSmom says:

      The article says BSA approved Extell in a split vote (which I read elsewhere defaults to the developer in the case of a tie). The Extell quote says that BSA approved Extell unanimously. Which is it?

    4. Gus says:

      If we want taller buildings why don’t we just change the zoning rules? I don’t see a good reason to allow developers to skirt around the intent of the law. I’m tired of this country turning into a game of who can do the most “legal” thing while screwing the system. This kind of stuff is unfair and drives inequality. And I’m in no way arguing if more density (height) is better or not, I’m just saying we should all play by the same rules and the spoils shouldn’t go to those who can hire the best lawyers and accountants to manipulate the law the best.

      • Jay says:

        Because the city/city councilors like all the items they can extract (campaign dollars, donations to favorite local charities, etc.) from developers in order to get variances to the purposefully low zoning.

    5. Erica DePiero says:

      I am a refugee from Midtown where unchecked building height has made the sidewalks a valley of darkness. I love the Upper West Side’s sunny, large sidewalks. We don’t need buildings that are 25% empty (even at full capacity) that will block sunlight. Shame on you, Extell.

      • Tom says:

        Shame on YOU thinking skyscrapers in midtown of any height are a bad thing. Manhattan is an island and there will be density everywhere. Move elsewhere if it bothers you.

    6. Jean Luke says:

      It’s amazing that people are so concerned with the height of that building in that location. The building has excellent architectural design and doesn’t seem out of place.

      I love the way the tall buildings look in the skyline including 200 Amsterdam another beautiful design. There are so many ugly buildings on UWS that were built in the 1960’s so nice to finally see UWS getting some nicer world class architecture.

      • John says:

        Really looking at 200 Amsterdam from West 62nd it is the ugliest building that stands out like a sore thumb…

      • Tim says:

        The issue isn’t so much about the end design. The fact that building rendering looks good does not give developers carte blanche to build whatever they want. It’s that attitude that rules don’t really apply and we’ll do what we want anyway that is a dangerous precedent.

    7. Chase says:

      Now let’s chop down that spot next to the rite aid

    8. ll says:

      Other than a profit motive, I cannot find another objective reason someone would desire massive skyscrapers in their neighborhood. Perhaps more tax revenue?

      • Boris says:

        Using air rights to build one tall building prevents the other parcels from being built taller. It depends how you want your zoned density.

      • John says:

        Not a lot of tax revenue from these buildings. The average co-op pays more

        • Boris says:

          what is the mechanism by which these tall buildings pay a negligible amount of taxes? I think you’re just parroting a totally baseless myth perpetuated by people who have no facts.

          • John says:

            When you have 20-30 floors of height with no apartments equals no tax’s for these floors. So when you take the taxable square footage by the square footage not taxed. The building will pay less tax’s then a 450 unit co-op or condo. I believe there will only be about 120 units in this building and A Jewish school in the base which will also pay zero tax’s

          • Josh says:

            There have been many programs over the years that, to encourage development, give condos tax abatements for 20 years. After 20 years, the apartment will be adding quite a bit to the tax base, but the city sees nothing until then. So my prewar apartment that is below the median selling price in Manhattan pays much more in taxes than a newly built 40 million dollar condo.

      • Josh P. says:

        Why do people like me want more skyscrapers in our neighborhood? The biggest reason is that we have a housing shortage. We haven’t been building nearly enough homes so the ones that are available are expensive and low quality. We need to build more new homes and we don’t have room to build out, so we need to build up.

        • John says:

          Josh you have 15 million for a 2 bedroom apartment? These buildings do not help the housing issues

          • Josh P. says:

            Yes the apartments in these buildings are expensive. But so is every other apartment on the UWS.
            If blocking new development made a neighborhood more affordable, then the UWS and West Village would be filled with great deals. They aren’t because NIMBYism doesn’t work. At least the new apartments have elevators and dishwashers so you get something for your money.

            • Josh says:

              Why do you think you need to pay 15 million to live in a building with an elevator and a dishwasher? I have both for 1/30th the price.

            • Josh P. says:

              A half million dollars is a very expensive home! I don’t know your specific situation, but on the whole UWS it looks like there are only three one bedroom apartments with dishwasher and elevator for sale at that price. https://streeteasy.com/for-sale/upper-west-side/status:open%7Cprice:-500000%7Cbeds%3E=1%7Camenities:dishwasher,elevator
              People need to come to terms with the fact that the UWS is already extremely expensive and you don’t get much for your money. Preserving the status quo means keeping the UWS unaffordable. The fact is that neighborhoods that build less (West Village, SoHo) are even more expensive, while cities that build more are less expensive. It’s a little counterintuitive but the evidence shows increasing supply is the only way to lower prices and make our neighborhood affordable again.

    9. Alexander Schwarz says:

      This will obviously be overturned. The BSA already unanimously ruled that this is legal. There is nothing in the zoning code that prevents such voids, and even if there were, if the BSA allows a project, it’s allowed.

      Also, this is why we have such high building costs in NYC. Wealthy NIMBYs are able to game the system by driving up the costs of development, all because their penthouse views are being blocked. Everyone knows this is nothing but a NIMBY delay tactic.

      • Otis says:

        Exactly. Like it or not the building was already approved in line with the zoning regulations at the time of approval.

        To overturn at this point is ex post facto. This sets a dangerous precedent.

        I hope Extell prevails and they very likely will as they are on very solid legal grounds.

        As a side, it’s appalling how Gale Brewer has no problem welcoming homeless into the neighborhood but wants to prevent productive taxpayers from moving in.

    10. Elizabeth H. says:

      Cratering this project is great news for nature. Having a massive building impose that much shadow will continue to undermine the health of the flora and fauna in Central Park. Just look at Morningside Park. It used to be a nice field; now it is becoming a mud pit. And the people living below will become more depressed living in so much darkness. Plus, now that so many are fleeing the city, are the financials really as attractive? (Bob L. — I hope so too!)

      • Michael says:

        Your statement is full of false assertions. I’ll only address the first: any shadows are temporary during the day and do NOT affect any living thing in Central Park. This building will be approved on appeal.

    11. Peter Brandt says:

      So, whats the bottom line ?
      How tall will it be, or have they already built oversized ?
      If its already built, use the excess ‘mechanical’ space for “LOW” income residences with an appropriate redesign for residences.

      • Don R. says:

        Creative thought, Peter. A 160 foot void could be subdivided into 15 or 16 floors of valuable low income housing subsidized by Extell and the profits of those higher than allowed floors. Extell is responsible for a couple of the worst looking builds on the UWS, above 99th St on Broadway. They want to play games then let them pay for the privilege and bring some diversity to the neighborhood. Also, be certain that all building occupants enter through the same doors and lobby.

    12. Neal Hugh Hurwitz says:

      Extell is a sneak… they built the two oversized buildings on W 100 St. and B’way. Stop them!!!

    13. E. J says:

      So thankful that Gale Brewer and Judge fought the loop hole for mechanical heights. The New York skyline has not been Las lovely since the addition of matchstick huge tall buildings. Designed Architecturally for beauty should not be forgotten.

    14. Marilyn says:

      Guess that was the ine judge they didn’t bribe!

    15. M Danon says:

      Visited Hong Kong recently and fortunately before this epidemic. Took pictures and studied its many skyscrapers and was astounded to find that all of these skyscrapers did have “mechanical” spaces they barely used one floor for all of this equipment. How come our esteemed Developers and their Architects and Engineers deem it necessary to use 150-200 feet for their mechanicals? Hope Judge Engoron that ruled agains Extell might notice this comment.

    16. R. Painter says:

      Why did the BSA not make a comparable decision re 200 Amsterdam??? After all the community protest against this zoning law ignoring monstrosity, it stands ready for (minimal) occupation by billionaires who will not have to pay taxes in support of City services and protection. Shame.