N.Y.U. dorm is built on air, neighbors say, in new lawsuit

By Lincoln Anderson

Charging that the United States Postal Service’s sale of 60,000 square feet of air rights to a developer building a 26-story New York University dormitory in the East Village was based on an “illusory contract,” a coalition of neighbors and local political clubs is suing the developer, the Department of Buildings and the city.

The suit demands an immediate temporary injunction halting all construction at the site, as well as a permanent injunction stopping the project entirely.

The suit concerns the dorm project for 700 students at the former St. Ann’s Church site at 124 E. 12th St. between Third and Fourth Aves. Construction on the building’s foundation recently started. N.Y.U. has an option to buy the building once it’s completed and is expected to do so.

In addition to residents of neighboring buildings, including the St. Ann’s Committee, the Village Independent Democrats and Coalition for a Democratic Alternative political clubs are plaintiffs on the suit.

The Cooper Station Post Office on E. 11th St. sold its air rights to the developer of the dorm, Hudson Companies, for $7.7 million. However, the suit argues, that since federal properties are exempt from city zoning regulations, the transfer of air rights from the post office to the adjacent dorm site is unenforceable: Since the city has no jurisdiction over federal property, it cannot remove air rights from the post office site to transfer them to the dorm, and the Postal Service can still build above the post office to a limitless height, the suit contends.

Kevin Finnegan, the plaintiffs’ attorney, called the air-rights transfer “a legal fiction that becomes a big building…. They’ll have the tallest building in the East Village,” he said of the new dorm, “and unlimited development possibility” on the post office site.

Although the plaintiffs can go to the Board of Standards and Appeals to challenge the Department of Buildings’ issuing of a permit for the dorm, the B.S.A. probably won’t rule until six months from now, Finnegan and others estimate. By then, much of the dorm’s structure would already be built, complicating efforts to contest the project.

David Satnick, attorney for Hudson Companies, spoke against an injunction and said the agreement between the Postal Service and Hudson Companies insured that the Postal Service had, in effect, sold its air rights to the developer and relinquished any future right to build over its property.

Although the post office has unlimited air rights, both Satnick and Finnegan agreed that the amount of air rights transferred to the dorm project was the maximum allowable without violating city zoning.

Satnick also noted that under the agreement, Hudson Companies — and N.Y.U., if it purchases the property — would maintain an easement for light and air over the post office’s roof that would preclude the Postal Service or anyone else from building above the post office.

Attorney Michelle Goldberg-Cahn from the city’s Law Department, representing the city, also opposed an injunction.

The case was heard by State Supreme Court Justice Edward H. Lehner. Lehner indicated that if the building gets well underway, the chances of reducing its size later might become harder.

“Courts are very reluctant to destroy newly constructed buildings,” he noted. Finnegan added that there was “only one case where [part of] a building was taken down” in New York City after it was found to have been built in violation.

Nevertheless, Lehner did not rule on Monday whether to issue an injunction. Afterwards, Finnegan said he expected Lehner might write a decision as soon as the middle of the following week. But Satnick said there’s no telling and that it sometimes takes months to get a decision.

Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation, said regarding any delay in stopping the project, “I would think in six months it could substantially be up.”

Neither Berman nor G.V.S.H.P. are a party to the suit. However, Berman has worked closely with the St. Ann’s Committee in organizing against the dorm. He recently criticized N.Y.U. for not notifying the community before the application for the dorm’s building permit was filed, and accused the university of failing to include any of the community’s suggestions for the dorm’s design. N.Y.U. reneged on a promised follow-up meeting at which these suggestions were to have been discussed, Berman and the St. Ann’s Committee contend.

Although the verdict is still out, the dorm’s opponents feel they have a good chance with Lehner.

“I felt the judge was really engaged,” said Berman.

“He’s been on the bench 30 years,” noted Ed Mamet, a plaintiff who lives across from the dorm site and is a former police captain and cousin of playwright David. “I suspect he’s going to issue a temporary [restraining] order until the Board of Standards and Appeals can do their thing,” he predicted.

David Kramer, principal of Hudson Companies, who was not at the court hearing and was on vacation, referred questions to Satnick.

Neither the Postal Service nor N.Y.U. had a representative at the hearing. John Beckman, N.Y.U.’s spokesperson, also referred questions to Satnick. However, in a Daily News article last week, Beckman was quoted saying, “We find the lawsuit is baseless and inflammatory.”

Bob Anderson, a Postal Service spokesperson, said the Postal Service has given up its air rights in its agreement with Hudson Companies.

“The grant of easement — the light and air easement — prevents the Postal Service from using the space above the Cooper Station Post Office,” he said. “The development rights we sold to Hudson Companies prevents us from building above the post office.”

Anderson quipped that while maybe the Pentagon might try to use its “infinite air rights” on a city property, the Postal Service wouldn’t. He said the Postal Service generally tries to comply with city zoning, since, “You don’t want to tick off local residents where you’re trying to serve the community.”

Asked if the Postal Service is promising never to build over the E. 11th St. post office, he said, “I don’t know if I’d use the word ‘promise,’ but we don’t have the right to — we’ve sold those rights. We’ve given everything to Hudson Companies and it’s their rights now.”

Satnick said that the community should thank Hudson for ensuring that a huge building won’t be built over the post office. “The community is far better off with Hudson holding the post office’s excess development rights and the right to restrict the post office from ever expanding that facility,” he said. “In essence, the post office decided to be a private developer in this case. In limiting the post office’s future expansion, Hudson has achieved what the city never could have achieved — and for that the community should be grateful.”

Told of Satnick’s comments, Berman fired back, “That they claim that we should thank them for imposing the biggest, ugliest and most unwanted dorm yet upon our neighborhood just shows the incredible arrogance and lack of touch with reality of these people. Not only does their development not save us from the possibility of a development on the post office site, it actually keeps that possibility alive and well and throws in this horrible megadorm next door for good measure…. If the Postal Service says it’s going to build a 50-story building and give five stories to N.Y.U., you think they will take the Postal Service to court to block it? N.Y.U. are the last ones I want to entrust with protecting our neighborhood against overdevelopment. It would be like putting Enron in charge of your 401K.”