No reservations about dropping hotel-height B.S.A. challenge


By Gerard Flynn

Following what he calls significant community concessions, a Manhattan attorney has withdrawn his case with the Board of Standards and Appeals against a 16-story luxury hotel at 4 E. Third St.

Kevin Shea, who normally aids architects and building owners in negotiating the Department of Buildings’ dense world of zoning laws and codes, had been pursuing one-man activism against the property for two years. Shea had discovered many zoning and building violations in the project’s plans, and sought to have them overturned by the B.S.A. Citing excess square footage allowances, he had even requested the building’s reduction by four stories, an act almost without precedent in New York City’s history.

However, Shea, on July 11, wrote a letter to the B.S.A. formally withdrawing his challenge against the building. In an interview, he outlined some gains and some losses, but noted that while the four stories will stay, what he had brokered is the best possible outcome for all.

“I got as good as I can get and if I were to pursue it any further it was probably going to cost the community more in concessions,” he said.

Shea said the building’s most recent owner, boutique-hotel developer Richard Born, had agreed to remedy as much of the initial owner’s infractions as possible and conform to the “letter if not the spirit” of zoning laws and building codes, which includes making some reductions to upper-floor area.

Born also promised to show “commitment to be a good neighbor” when the super-luxurious hotel opens its doors, slated for sometime this summer. Born has also donated $150,000 to a fund that will go “to help the responsible development of the East Village.” Shea said Born’s lawyer is currently in control of this fund, which would be available to help pursue similar appeals against disputed construction projects.

In another concession, some of the boutique hotel’s opulence will also be set aside to make room for the Culture Center, an off-Broadway theater company.

Born did not return a request for an interview.

The letter marked the end of a battle Shea had fought with the numerous owners of the property and its architect, Robert Scarano, ever since he decided in May 2004 to do what the Department of Buildings didn’t when they approved construction in May 2003 — inspect the plans for code compliance.

“The plans were deficient; there were so many violations. Among other things the designation for the property was unjustified because they didn’t have a college or school involved,” Shea said.

He said that blueprints showed space for a hotel lobby and entrance. Yet, the plans submitted to Buildings also contained several floors for “community facility use” for faculty housing, although no occupying institution, such as a college, had been identified. The incongruous mix of uses raised his suspicion.

The project’s architects, Scarano and Associates, had certified the plans to be in complete compliance with zoning laws and building codes, and construction began.

An audit by the Department of Buildings a year later confirmed Shea’s complaint, and a stop-work order was served on May 24, 2004, but work was allowed to proceed several weeks later.

At the time, John Ruha, then the building’s co-owner, said that the 47 objections found were “normal for its size” while large building projects can get 100 to 200 violations.

In June 2004, the developers claimed hardship, since no university had been found to occupy the space, and the developers decided to build a hotel instead.

Shea said his battle underscores the serious shortcomings of the “professional certification” program and concluded his letter to the B.S.A. urging them to “pay close attention to those applications” approved under the program.

Under professional certification, an architect or engineer can approve plans and begin work on a project without an inspection from the Department of Buildings to determine if compliance with zoning laws and other building codes are met. The program was introduced in 1992 by former Mayor Rudolph Giuliani to expedite the permit-application process.

“The overall problem was that the application had been professionally approved under this program,” Shea said. “The plans were approved for the building, although they had never been examined by the Department of Buildings.

“It would have been a lot easier had they done so before, had the Department of Buildings demanded at the time that the building be brought into compliance, had they put their foot down and said, ‘Comply now, build it later.’ I wouldn’t have had to challenge it,” Shea said.

Although proponents of the professional certification program argue that it has been a critical tool in facilitating the building boom that followed, its critics disagree. Susan Stetzer, district manager for Community Board 3, countered that it invites the kind of violations seen at 4 E. Third St.

“We see a lot of problems with it,” Stetzer said. “Community Board 3 feels this program does not serve our community. We believe that either everything needs to be audited or they need at the least to track the problem developers, the problem architects who are continually having problems, yet who are also continually allowed to self-certify.”

Of the 111,000-plus permits that are issued each year for projects from demolition to curb cutting to skyscrapers, approximately 40 percent of these will be professionally certified and of these only 20 percent will be audited, said Jennifer Givner, a Buildings spokesperson.

“This department is a key agency involved in economic development. If we have a clog in the system where things are not allowed to go through, that can slow down economic development throughout the city,” Givner said.

“Generally, most architects will file correctly with the department,” she added. “They are honest individuals. There are always going to be some bad eggs.”

And many architects agree with Buildings’ position.

“The entire city would slow down in terms of being able to obtain building permits and approvals,” said architect David Mandl. “Under the professional certification program, you can get the same type of approvals in a day, as opposed to waiting three to five months, which is the traditional way it’s been done.”

The professional certification program has found many more opponents in the boroughs, especially in Brooklyn, where Richard Scarano’s name will draw a scowl from some, who accuse him of having “single-handedly rezoned his own little development plots.”

The Buildings Department is now taking a closer look at Scarano, and an investigation of his building plans and projects is pending.

So, do architects and engineers who deliberately ignore the law on zoning and building codes reflect simply a few bad eggs?

Not so, countered Andrew Berman, executive director of the Greenwich Village Society for Historical Preservation.

“The professional certification program is deeply problematic and was one of the worst things ever to happen in terms of the integrity of the building and development process,” Berman said. “Giuliani slashed virtually every agency and with the cuts to the Department of Buildings, this program was one of the few ways left for them to continue doing their job,” he said, adding that the approving of all plans ought once again to be in the hands of city inspectors.

“With the real estate boom, the problems of professional certification are more and more apparent every day,” he said. “Yet, I am not sure the political will is there to fund the Department of Buildings to do the job which they had been responsible for over a 100 years until the city decided to hand it over to private architects and developers.”

An appeal by an East Village resident to force the removal of four stories from the top of 4 E. Third St., above, has been withdrawn.