40-80-BZ APPLICANT – Kramer Levin Naftalis & Frankel LLP, 23rd Street, LLC, owner. for 39 West SUBJECT – Application October 25, 2018 – Amendment of a previously variance (§72-21) to facilitate the transfer of unused development rights from the variance site for incorporation into a new as-of-right development and approval of previously constructed rooftop additions totaling 754 square feet. M1-6 Ladies’ Mile Historic District. 23rd Street, 39- PREMISES AFFECTED – 35-41 West 23rd 24th Street, 20-22 West Street, Block 825, 41 West Lot(s) 20, 60, 1001-1005, Borough of Manhattan. COMMUNITY BOARD #5M Application granted on ACTION OF THE BOARD – condition. THE VOTE TO GRANT – Affirmative: Chair Perlmutter, Vice-Chair Chanda, Commissioner Ottley-Brown, Commissioner Sheta and Commissioner Scibetta……….………………………...5 Negative:…………………………………...…………0 THE RESOLUTION – WHEREAS, this is an application to reopen and amend a variance, previously granted by the Board, which permitted, in a M1-6 zoning district, the conversion of all floors above the first floor from lofts into a multiple dwelling; and WHEREAS, the purpose of this application is to reflect the as-built conditions of the site and facilitate the transfer of 19,765 square feet of development rights appurtenant to the subject site by the owner of the site to the owner of a development site (tentatively comprised of Block 825, Lots 20 and 60, the “Development Site”) to be incorporated into a mixed-used commercial and residential building; and WHEREAS, a public hearing was held on this application on January 29, 2019, after due notice by publication in The City Record, and then to decision on February 12, 2019; and WHEREAS, Vice-Chair Chanda and Commissioner Scibetta performed inspections of the subject site and surrounding neighborhood; and WHEREAS, Community Board 5, Manhattan, recommends approval of this application; and WHEREAS, this application is brought on behalf of the 35 West 23rd Street Condominium Association, which owns the subject site and seeks the Board’s authorization to merge the subject site with the Development Site; and WHEREAS, the subject site is located on the north side of West 23rd Street, between Fifth Avenue and Avenue of the Americas, within an M1-6 zoning district and the Ladies’ Mile Historic District, in Manhattan; and WHEREAS, the site has approximately 45 feet of frontage, 99 feet of depth, 4,387 square feet of lot area and is occupied by a five- (5) story plus cellar and penthouse building containing 19,765 square feet of floor area; and 40-80-BZ WHEREAS, accordingly, the applicant assumes that the Board ascribed no value to the unused development rights and, in support of that assumption, submits a letter from a financial consultant analyzing the value of the unused development rights near the subject site in 1979 and concluding that the rights, indeed, had no value at that time because the building was not suited for a conforming use due to the lack of a permissible live floor load, lack of an elevator, and its narrowness; and WHEREAS, finally, the applicant notes that the mechanism for enabling the transfer of development rights through zoning lot mergers was only added to the Zoning Resolution in 1977 and, at the time, economic conditions in New York City were severely distressed, thus, development rights transfers in 1980 were highly unlikely in the zoning district; and WHEREAS, therefore, the applicant states that an amendment to the variance to facilitate the transfer of the unused development rights from the subject site to the Development Site does not undermine the integrity of the Board’s earlier findings with regards to ZR §§ 72-21(b) or 72-21(e) because the facts of the instant application are readily distinguishable from those underlying the Court’s holding in Bella Vista; and WHEREAS, specifically, as stated above, the applicant submits that, at the time of the variance, the subject premises were held in separate and unrelated ownership

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