By Albert Amateau
The Court of Appeals, the state’s highest court, on Tuesday unanimously ruled against Gregg Singer, the developer who sought to build a 19-story student dormitory on the site of the former P.S. 64, most recently home to the CHARAS/El Bohio cultural center.
Singer bought the old school building on E. Ninth St. east of Avenue B from the city for $3.15 million at auction in 1998 with a deed restricting its use to a community facility. He outraged East Village preservationists in 2004 by proposing to tear the building down and build a 26-story university dormitory, but later that year proposed a 19-story dormitory using part of the existing building, but still seeking a significant bonus of extra square footage for a community facility.
However, the Department of Buildings said that to qualify for the bonus allowing 19 stories instead of 10 stories for a simple residential development, Singer would have to prove the building was affiliated with one or more schools, rather than being basically an “apartment house for students.”
Singer took the case to the Board of Standards and Appeals, which upheld the Department of Buildings’ position. Then, through his company, 9th and 10th St. LLC, Singer sued in State Supreme Court, which again upheld the requirement that the developer provide a school affiliation to receive the building bonus.
Singer next appealed to the Appellate Division in Manhattan, which disagreed with the previous rulings. But the city appealed the case up to the Court of Appeals in Albany, where all seven judges on the high court bench upheld the Department of Buildings and the Board of Standards and Appeals rulings.
Stephen McGrath, deputy chief of the city’s Law Department, who argued the case before the Court of Appeals, said, “One of the city’s main concerns was that, given the developer had no formal affiliation with an educational institution, he would not be providing the city with a community facility, but rather he would be building a profitable residential building that would be higher than normally permissible.”
Singer had argued at the Appellate Division that he did not have to obtain the commitment of an educational institution until after he finished the dormitory.
But the Court of Appeals ruling said, “It would create needless problems if [the developer] built a 19-story building only to find that he could not use it in a legally permitted way. The city would then face a choice between waiving the legal restrictions and requiring the building to remain vacant or to be torn down. The city’s officials did not act arbitrarily of capriciously in trying to avoid that dilemma.”
But there are still unsettled legal issues.
In June 2006, community activists and former Councilmember Margarita Lopez convinced the Landmarks Preservation Commission to designate the old P.S. 64 as a landmark, protecting it from demolition.
In August 2006, Singer, using a permit granted prior to the building’s landmark designation, knocked decorative elements off the facade in an effort to overturn the landmark status. Singer is the plaintiff in two other suits against the city, one seeking to overturn the landmark designation and the other seeking $100 million in damages for blocking him from building his jumbo dorm.
Meanwhile, hopes of saving another historic building, St. Brigid’s Church, a block away from P.S. 64, also rest with the Court of Appeals.
On Feb. 19 the Court of Appeals granted the Committee To Save St. Brigid’s the right to appeal an Appellate Division 4-1 ruling dismissing the committee’s lawsuit to stop the demolition of the 1849 church.
“It’s a major legal breakthrough,” said Edwin Torres, president of the committee, which has been working to save the historic building on Avenue B and Eighth St. across from Tompkins Square Park since July 2005, when the committee first went to court to stop the New York Catholic Archdiocese from tearing it down.
Since then, the case has been to State Supreme Court, which upheld the demolition, and to a five-judge Appellate First Division panel, which also upheld the demolition with one dissent. The dissent was by Justice Michael Kavanagh, who has since been transferred to another Appellate Division.
“The Court of Appeals, the highest court in the state, doesn’t take all cases and it is significant that they thought our legal arguments have enough merit to warrant their review,” Torres said.
The committee’s lawyers, Harry Kresky and Marisa Marinelli, will file arguments with the high court by April 22; the archdiocese has until June 10 to reply and the committee gets a chance to file a counterbrief by June 29.
“The church is still standing and I’ve always had faith that we can save her,” said Torres on Monday. “We don’t know yet when the Court of Appeals will hear oral arguments but I doubt that it would be much before September,” he added.
Pointing to the urgent need for a new St. Vincent’s Hospital, Friedman also noted that Cabrini Hospital on E. 19th St. the previous Friday, March 14, “could not meet its payroll and has been effectively shuttered.”
Friedman called St. Vincent’s “a vital part of the safety net” in Manhattan; he noted that the borough has three city-operated Health and Hospitals Corporation facilities, two on the East River and one in Harlem. St. Vincent’s essentially is, thus, counted on to cover the West Side from Battery Park to Hell’s Kitchen, he said.
Of the board’s resolution, he said, “It’s a well-meaning but flawed document that wants to have its cake and eat it, too.” Friedman said the board seemed to be pandering to the views “of a few” who are not representative of the general public. These few influential opponents, he said, “would be the superdelegates deciding this issue.”
O’Toole must come down, Friedman stressed, warning, “or no new hospital.”
About 20 Chinatown residents, holding signs saying, “We deserve a world-class hospital,” attended the meeting. St. Vincent’s has long had a health clinic in Chinatown for pediatric and general family medicine, and also has a Chinese-language floor at its main hospital. At one point, an opponent of the plan dismissed the Asian-Americans as having been “bused in.” Amoroso angrily addressed this comment later, calling it an uncalled-for and insensitive slap at a minority community, eliciting an outburst of cheers from the Chinatowners.
However, despite the protestations of the St. Vincent’s officials, as well as of some neighbors — one of whom said the buildings the hospital wants to demolish are undistinguished — Board 2 Chairperson Brad Hoylman said the board’s resolution had to be based on several factors. First of all, he said, C.B. 2, when it considers “community,” should focus on its own district. Second, he said, with the L.P.C. hearing on the St. Vincent’s/Rudin plan coming up on April 1, it was incumbent on the board to weigh in on landmarks issues above all else. Thus, the “putting buildings over lives” charge was not apt, he said. Hoylman said the board will have ample time later on to opine on other aspects of the plan, but that the matter before the board last Thursday night was landmarking. Hoylman added that he felt the St. Vincent’s Omnibus Committee — of which he is also chairperson — and the full board had a responsibility to pass “the strongest resolution” possible, given that the community board’s recommendations are only advisory.
“I think we need to come in with a strong, solid resolution that, I think, will give our elected officials a firm base to negotiate from,” he said. He added that the board’s role is to “build consensus,” and that through two major public hearings, tours of St. Vincent’s and meetings with all the various parties, the board had effectively done so.
However, Maria Passannante Derr, the board’s former chairperson, said she had problems with the strongly worded resolution. She noted that another former maritime union hall with a nautical architectural theme — similar to the O’Toole Building — exists on W. 17th St. and is now the Maritime Hotel, thus negating the need to preserve O’Toole.
“As written, this resolution misses the opportunity for the board to speak out,” Derr said. “St. Vincent’s is the most important institution in our community.” She derided the resolution for focusing on “grids, lintels and windowpanes.”
But David Gruber, a fellow C.B. 2 member, said those are precisely the sort of things L.P.C. considers. Gruber said St. Vincent’s itself was to blame for the unyielding resolution.
“They have treated this resolution as a sort of guns-and-butter argument,” he said. “I challenge St. Vincent’s to come up with an alternative plan. St. Vincent’s hasn’t done any give and take.” Slamming attorney Friedman’s “O’Toole or no new hospital” statement, Gruber said, “This is just arrogance. That kind of arrogance has threaded through our entire discussion with St. Vincent’s, and I resent it.”
Hoylman concurred, saying a middle ground had not been reached, with there being dialogue from both sides, yet the result being merely “talking past each other.” And he agreed on the “grids and lintels” emphasis, noting the committee had “focused like a laser on landmarks issues.” Hoylman also predicted that there “would be lawsuits” if St. Vincent’s doesn’t make some compromises, and that the board’s efforts could help avoid that outcome.
David Reck, chairperson of the board’s Zoning and Housing Committee, called O’Toole “the right site — but these guys are asking for significant upzonings.”
The board will subsequently weigh in on the zoning aspect of the plan, as well as other issues, like whether the Rudin project should include affordable housing or a school.
Several C.B. 2 members, in their remarks before the board’s vote on the resolution, recalled the treatments they had received at St. Vincent’s. Rosemary McGrath said a Dr. Pisani at the hospital had saved her own life and that of her unborn baby. Ed Gold noted he’d had three significant operations there, including a quintuple bypass. Yet, he too, knocked the hospital.
“They haven’t given us one inch on the program — not one inch,” Gold declared.
Arthur Schwartz, another board member, noted the community wasn’t just saying no to St. Vincent’s, but is offering an alternative plan, and that that’s “what this community does — offer an alternative plan.”
In the end, the board voted 26 in favor of the committee’s resolution and eight against and the tough resolution was approved to St. Vincent’s chagrin.
However, Hoylman predicated “that the way these things work out,” there probably would be some changes on St. Vincent’s part before all is said and done.
