BY EILEEN STUKANE | Over the decades, residents of 517-525 West 45th Street, a complex of five buildings of varying heights, have outlasted a turnover of owners who thought they could harass tenants into leaving their grandfathered loft dwellings. Toughened by awareness that landlords can use construction as a tool in tenant harassment, they were alert to change and ready for the new owner, Offir Naim, who purchased the complex in July 2014.
They soon learned that his plan was to construct additional stories on their buildings to make them taller, but felt that Naim’s application to do this work with the city Department of Buildings (DOB) contained fraudulent information. Tenants now say that even with proof in hand, spurring DOB officials to acknowledge the falsifications and halt the approval process proved a tall order.
Tom Cayler of 525 West 45th Street took the lead in the residents’ efforts to correct what they say is falsified application information provided by the owner and his architect — information that misidentifies the heights of their buildings. As part of the city-designated Special Clinton District, the buildings have a height limit of 66 feet or seven stories, whichever is less. Naim aims to add two stories to the four-story building at 517 West 45th Street, and one story each to five-story buildings at 521 and 525.
But residents learned that the owner’s architect, Daniel Bernstein of Kutnicki Bernstein Architects, submitted plans to the New York Loft Board — in compliance with requirements regarding eight grandfathered lofts within the 18-unit building complex — claiming that, in the end, all three buildings, as measured from the curb, would top off at 64’11”.
Cayler said he had sleepless nights wondering how an extra story could be constructed on his building, which seemed to be about 60 feet in height already. After consulting an architect, he learned that the DOB would require a topographic survey by a certified surveyor to be included in Naim’s application for the type of construction he intended. To validate any discrepancy in height, tenants would have to commission their own topographic survey from a reputable certified surveyor.
The Tenants’ Association approved the $1,000 required to hire such a surveyor. The surveyor’s conclusion was that the current height at 521 is 59.93 feet, while the 525 building is 61.70 feet — both heights that would preclude additional stories from being added within the zoned area’s 66-foot limitation.
In contrast, Naim’s application to the DOB specified the present height of both the 521 and 525 buildings at 54 feet.
Cayler arranged a meeting with the DOB’s deputy borough commissioner, Joseph Bruno, where he learned that Naim had not yet received final approval because requirements of both the city’s Housing Preservation & Development (HPD) department and the Loft Board had not yet been satisfied.
“But zoning and codes were resolved,” Cayler said.
Cayler continued, “Commissioner Bruno told me, ‘We can only base our approval on what we were given,’ and I told him I was giving him a certified document and asking the DOB to rescind its approval for zoning and codes, because I was proving that the submitted documents were materially misleading. He said, ‘We’ll have to do a review,’ this and that. The most distressing part of this is the DOB couldn’t have been less interested.”
Cayler said he next had to bring together representatives from the offices of City Councilmember Corey Johnson and State Assemblymember Linda Rosenthal, along with the district manager of Community Board 4 (CB4), Jesse Bodine, for a conference call with John Waldman, DOB’s intergovernmental and community affairs liaison. The tenants’ challenge to Naim’s assertion about the height of the buildings was the topic of discussion.
Waldman later sent an email to all parties stating: “The job in question is in disapproved status. We do not usually audit jobs until they have been approved.” He added that the “potential discrepancy in the floor to floor height of the building” can be dealt with “in the review process” regarding new zoning questions about that height discrepancy.
Cayler is asking why plans are allowed to progress through a complicated approval process, when a basic issue like compliance with a zoning height restriction — which DOB now cites as a “discrepancy” and tenants label “fraud that is a felony” — is not fully vetted. His determination to get to the bottom of this question led him, in September, to file a Freedom of Information Law, or FOIL, request with DOB seeking the document upon which the initial zoning and codes compliance was approved as well as the topographic survey, which is required by the DOB and should have been submitted with the architect’s application.
His request was denied.
He appealed the denial, and is still waiting for his request to be granted. He did, however, receive an email that his request has been “forwarded to the Borough Commissioner’s Office for handling.”
According to DOB’s website, questions regarding the required topographic survey were resolved on April 21 of this year, although the name of the surveyor and the date of the survey are blank. This, among other zoning documents, is what Cayler would like to see. How could a certified topographic surveyor have been so off base in calculations, and how could the DOB approve them?
“I can tell that there’s no topographic survey,” Cayler charged, explaining that a “job folder” can be found for the West 45th Street buildings by searching on the DOB’s website. While there is a zoning diagram document, he said, he found that “no topographic survey has been submitted.”
When DOB was asked directly whether a topographic survey had been submitted by Naim and his architect, a spokesperson responded, “The job will remain in disapproved status until the application shows compliance with all necessary code and zoning requirements, including providing documentation to demonstrate that the project will conform to the height restrictions set forth in the NYC Zoning Resolution.”
That doesn’t answer the question, but at least DOB is more forthcoming than architect Daniel Bernstein, who did not respond to repeated email requests for an interview.
Public officials alerted by Cayler and his fellow tenants are taking note.
“This building has had a checkered past of misrepresenting or falsifying information to the Department of Buildings, with the sole purpose of skirting the law intended to protect tenants and the general public,” said Assemblymember Rosenthal. “While I am glad that this current project has been disapproved by DOB, reports have indicated that DOB has struggled with catching issues of this size and scope in the past, suggesting that more enforcement is needed to stymie the underhanded dealings of dubious landlords. It is essential that DOB take a proactive approach in situations like this by ensuring that the plans submitted are accurate, and in cases where they are not, the applicant should be sanctioned and have their professional license revoked when appropriate.”
In a December 9 letter to DOB’s Manhattan Borough Commissioner Martin Rebholz, CB4 outlined the issues and requested that the department review and “conduct a full audit” of the application for the West 45th Street buildings. That letter was also sent to State Senator Brad Hoylman, Assemblymember Richard Gottfried, Councilmember Johnson, and HPD’s assistant commissioner, Deborah Rand.
Meanwhile, as the story of 517-525 West 45th Street makes clear, the onus in situations where landlords are looking to do cumbersome renovation and construction projects is on the tenants to stay alert at every step of the city’s approval process.
