# Petition for Writ of Certiorari — 383 Madison Associates v. City of New York et al > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1239%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1081 ## Text Supreme Court, U.S. a ae Be ee i - 2 3,1 205 FEB 1 1 1994 0. 93- ‘or — 7 ames = « Ul: tue 745 7 wre IN THE Supreme Court of the United States OCTOBER TERM, 1993 383 MADISON ASSOCIATES. Petitioner, Ve CITY OF NEW York, et al.., Respondents. Petition for a Writ of Certiorari to the New York Supreme Court, Appellate Division, First Department PETITION FOR A WRIT OF CERTIORARI WILLIAM T. COLEMAN, JR. Counsel of Record DEBRA A. VALENTINE HILARY R. HEGENER O’ MELVENY & MYERS 555 13th Street, N.W. Suite 500 West Washington, D.C. 20004 (202) 383-5325 Attorneys for Petitioner WILSON - EPgsS PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED The 1967 landmark designation of Grand Central Ter- minal deprived its owners of 1.7 million square feet of existing development righis. To avoid a constitutional taking claim, New York City amended its Zoning Resolu- tion in 1969 to allow unused deve: pment rights to be transferred to any property then linked to the landmark site by a series of lots having the same ownership as the landmark site. In 1969, 383 Madison Avenue was ad- mittedly an eligible receiving site for these transferable development rights (“TDRs”). Petitioner is the owner by purchase of 1.5 million square feet of the Terminal’s TDRs. New York City denied Petitioner’s application to use 800,000 of these TDRs at its 383 Madison Avenue site. The state court upheld the denial based on its con- clusion that (1) a permit seeker has no property interest to protect from unconstitutional invasion, (2) the 383 Madison Avenue site no longer qualified as a receiving site since years after 1969 an intervening lot was sold to a third party, and (3) the development proposal would exceed an arbitrary bulk limitation. The court below ignored Petitioner’s interest in its property right—the TDRs—and instead focused on whether 383 Madison had an absolute right to the permit. Moreover, neither the arbitrary bulk limitation, which the City’s own Zon- ing Resolution precludes, nor the same ownership re- quirement, as applied, bear any re!l in? of rne “tate »f Ne V 3 York NevV York Count Index No 29021 /89 a A ( 870193 ZSM (A >, 19% 21a 4 b ; , APPENDIX FE r ()) ler »T t f N ¢ i rw (4 ul T | Appe ! le? Y 4 ppea wo V SZ 5 i »d (4% ept 14 193) 17a ; : APPENDIX Ff ¥ a Der s10n ind Orde oT tne Ni \ rk Court ] % Appeals denying appeal ermission, Motion No ; 1250 (J 1, 1994) isa APPENDIX H 1969 Zoning Resolution Amendment, City Planning Commission, November 5, 1969/Cal. No. 32, CP- A 20938 ii TABLE OF CONTENTS—Continued Page APPENDIX I Proposal to Establish a Special Midtown District, City Planning Commission, March 16, 1982/Cal. No. 1, N 820253 ZRM 59a APPENDIX J Proposal to Establish a Special Grand Central Area Sub-District, New York Department of City Planning, November 1989/NYC DCP #89-45 6la la APPENDIX A NEW YORK SUPREME COURT APPELLATE DIVISION FIRST DEPARTMENT 49063 383 MADISON ASSOCIATES, Plaintiff-A ppellant, -against- City OF NEw York, et al., Defendants-Respondents. Rosenberger, J.P., Kupferman, Asch, Rubin, JJ. Order and judgment (one paper), Supreme Court, New York County (Eugene Nardelli, J.), entered November 1, 1991, which, inter alia, declared the denial of plaintiff's application for a special permit was not improper as a matter of administrative or constitutional law, unani- mously modified, on the law, to the extent of declaring that there is no rational basis for defendants’ determina- tions that the disadvantages covered by reduced light and air would not be offset by the advantages of the preserva- tion of Grand Central Terminal as a landmark, that plain- tiff's proposal for the continuing maintenance of the Ter- minal would not result in its preservation, and that the proposed transfer of transferable development rights would unduly increase population density, and otherwise af- firmed, without costs. Plaintiff owns a building site in the vicinity of Grand Central Terminal, a designated landmark, and together with successors in interest of the Penn Central Corpora- tion, applied to the City Planning Commission for a 2a special permit allowing for the transfer of transferable development rights to be used to develop a 74-story build- ing on plaintiff's site. The application was rejected after a protracted process marked by numerous unjustified delays in violation of 6 NYCRR 617.8 requiring co-lead agencies to take appro- priate action within 30 days, and that occasioned at least two proceedings by plaintiff to compe! municipal agen- cies to act. In one such proceeding following a three-year delay, Supreme Court ordered the relevant city agencies to certify that plaintiff's draft environmental impact state- ment was complete. The application was finally rejected on verious statutory and regulatory grounds, only some of which were valid. We modify the judgment to delete those paragraphs confirming determinations that have no rational basis in the record. Because a pattern of common ownership that once joined this property and those intervening with the Ter- minal has been disrupted by sales of the parcel as well as the intervening lots by Penn Central and its successors in interest, the property is not a site “adjacent” to the landmarked Terminal within the meaning of Part 74 of the New York City Zoning Resolution. Therefore, it 1s not includable within the class of properties eligible to receive transferable development rights, and plaintiff may not avail itself of the provisions of the “chain amend- ment” set forth in section 74-79 of the Zoning Resolution. Even if plaintiff's property were adjacent to the Termi- nal, we would have rejected its reading of section 81-211 to the extent such would deprive the City of regulatory authority over the concentration of transferable develop- ment rights on a single site. This section is not incon- sistent with the authority of the City’s zoning agencies to evaluate development at any site in terms of standard zoning criteria (see, Matter of Cicenia v Zoning Board of Appeals, 157 AD2d 722, 725). Since the site is zoned for a floor area ration of 15, but the proposed develop- 3a ment would have required a floor area ratio in excess of 33, a rational basis exists for the determination that the concentration of these transferable development rights at this site would increase the bulk of the site out of propor- tion to the surrounding neighborhood. However, we reject the City’s contention that the pro- posed development would disproportionately impact on the access of surrounding sites to air and light. Com- ments by the City Planning Commission itself made in the late 1960’s when the concept of the transferable de- velopment rights was being debated, which emphasized that the landmarked area would create a “saucer of light” that likely would offset a loss of light if the development rights were to be transferred, undermines the very findings presently made by that agency. Since transferable devel- opmeni rights originally were envisioned as a trade-off, shifting as-of-right development to adjacent sites, we find no basis to conclude that the facts of this case would have created a burden greater than that originally contem- plated. We also reject the administrative determination that the increase of approximately 4900 pedestrians, in a vicinity populated daily by some 700,000 workers, posed the threat of a dispreportionate impact. Finally, the re- port of the Landmarks Preservation Commission failed to identify in concrete terms what additional reasonable Steps would have been required for plaintiff, who is not a lessee of the Terminal and is not presently charged with a duty of maintenance, to ensure maintenance of this landmark. While the City may require applicants to assume maintenance responsibilities of landmarks as a condition of a special permit, it is not clear why the Land- marks Preservation Commission seemed determined to relieve the Metropolitan Transit Authority, an independ- ent third party, of its obligation as lessee of the Terminal to maintain the Terminal by reposing direct responsibility for such with plaintiff. Finally, since plaintiff did not have a property right to the grant of a special permit, their constitutional claims 4a must be rejected (see, Sudarski v City of New York, 779 F Supp 287, 297, affd, 969 F2d 1041, cert denied, 113 § Ct 1059). THIS CONSTITUTES THE DECISION AND OR- DER OF THE SUPREME COURT, APPELLATE DI- VISION, FIRST DEPARTMENT ENTERED: May 20, 1993 5a APPENDIX B SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK At IAS Part 2 of the Supreme Court of the State of New York held in and for the County of New York, this 7th day of October, 1991 PRESENT: Hon. EUGENE L. NARDELLI, J.S.C. Index No. 23621/89 383 MADISON ASSOCIATES, os. Plaintiff, City oF New York, NEw York CITY PLANNING CoM- MISSION, NEW YORK LANDMARKS PRESERVATION COM- MISSION, SYLVIA DEUTSCH, individually and as Chair- person of New York City Planning Commission and Director of Department of City Planning, DENISE M. SCHEINBERG, individually and as Vice-Chairperson of New York City Planning Commission, SALVATORE C. GAGLIARDO, MARILYN MAMMANO, WILLIAM GARRISON McNEIL, AND DANIEL T. SCANNELL, individually and as Commissioners of New York City Planning Com- mission ‘ Defendants. ORDER & JUDGMENT Plaintiff 383 MADISON ASSOCIATES having com- menced an action seeking a declaratory judgment that 383 Madison Avenue is eligible to receive transferable develop- ment rights “TDR’s” from Grand Central Station and that defendants’ refusal to allow such a transfer is a viola- 6a tion of plaintiff's due process and equal protection rights as well as an unconstitutional taking of property and seck- ing 480 million dollars in damages and defendants having answered and moved for summary judgment dismissing the complaint and plaintiff having cross moved for a con- tinuance to permit disclosure, and the matter having reg- ularly come on before the Honorable Eugene L. Nardelli, [AS Part 2 of the Court held at the Courthouse thereof, located at 60 Centre Street, New York, New York on October 31, 1990 and Now upon reading and filing the Summons dated Octo- ber 30, 1989; the Complaint verified on October 27, 1989, and Exhibits thereto: the Answer verified on Feb- ruary 20, 1990; Defendants Notice of Motion for Sum mary Judgment dated February 20, 1990; the Affidavit of Con Howe sworn to on February 20, 1990, and Ex- hibits thereto; the Affidavit of David Todd sworn to on February 15, 1990, and Exhibits thereto; the Affirmation of Virginia Waters dated February 16, 1990, and Exhibits thereto; all in support of the motion for summary judg- ment; Plaintiff's Notice of Cross Motion for a Continuance to Permit Disclosure dated July 26, 1990; the Affidavit of J. Michael Harty sworn to on July 25, 1990, and Exhibits thereto; the Affidavit of Frederick W. Rovet sworn to on July 25, 1990, and Exhibits thereto; the Affidavit of Vern J. Bergelin sworn to on July 25, 1990, and Exhibits thereto; all in opposition to the motion for summary judg- ment and in support of the motion for a continuance; the Reply Affirmation of Virginia Waters dated October 17, 1990, and Exhibits thereto; the Affidavit of Gail Ben- jamin sworn to on October 17, 1990, and Exhibits thereto; the Affidavit of Mark London sworn to on October 17, 1990. and Exhibits thereto; the Affidavit of Michael S. Graham sworn to on October 5, 1990, and Exhibits thereto; all in support of the motion for summary judg ment: the Reply Affidavit of Robert F. Kramer sworn to on October 30, 1990, and Exhibits thereto, in opposition Ta to the motion for summary judgment and in support of the motion for a continuance; the Reply Affirmation of Virginia Waters dated November 2, 1990, in support of the motion for summary judgment; the Notice of Motion of the Municipal Art Society of New York (“MAS”) to In- tervene and of MAS, the National Center for Preserva- tion Law, the National Trust for Historic Preservation in the United States and the New York Landmarks Con- servancy, Inc., to Participate as Amici Curiae, dated June 15, 1990; the Affidavit of Howard G. Sloane sworn to on June 15, 1990; the Affidavit of Kent L. Barwick sworn to on May 23, 1990; the Proposed Answer of MAS verified on May 23, 1991; all in support of this motion; and the Affidavit of Vern J. Bergelin sworn to on October 17, 1990, in opposition to the motion to intervene; And plaintiff having appeared by William T. Coleman, Jr., of OMELVENY & MYERS, its attorneys; and de- fendants having appeared by VICTOR A. KOVNER Cor- poration Counsel of the City of New York (Virginia Waters, of Counsel) and amici curiae having appeared by William FE. Hegarty, counsel for MAS, all on October 31, 1990, and this Court after due deliberation having filed its memorandum decision dated August 6, 1991, it is ORDERED, that the motion of the Municipal Art Society of New York, Inc., to intervene as a defendant in this action 1s denied, and it is further ORDERED, that the Municipal Art Society of New York, Inc., the National Center for Preservation Law, the National Trust for Historic Preservation, and the New York Landmarks Conservancy, Inc., are granted leave to participate in this action as amici curiae, and it is further ORDERED, that plaintiff's cross-motion for a continu- ance to permit disclosure is denied, and it is further ORDERED, ADJUDGED and DECLARED that the parcel of land located at 383-385 Madison Avenue in the Borough of Manhattan in the City of New York and oc- 8a cupying the entire city block bounded by Madison Ave- nue. 47th Street, Vanderbilt Avenue and 46th Street is not “adjacent” to Grand Central Terminal or to the lot on which the Terminal stands within the meaning of sec- tion 74-79 of the Zoning Resolution of the City of New York (“ZRCNY § 74-79”), and it is further ORDERED, ADJUDGED and DECLARED that de- fendants’ denial of plaintiff’s application for a Special Per- mit to transfer approximately 787,000 square feet of de- velopment rights from the Grand Central Terminal to the 383-385 Madison Avenue site was neither irrational, nor arbitrary, nor capricious, nor affected by any error of law, and it is further ORDERED, ADJUDGED and DECLARED that there is a rational basis in the record for defendants’ determina- tion that the proposed transfer of development rights would unduly increase the bulk of the new development, the density of population and the intensity of use to the detriment of the occupants of buildings on nearby blocks, and it is further ORDERED. ADJUDGED and DECLARED that there ‘} TY ary a an od receiving site for the transfer of development rights from 4a Grand Central Terminal under Section 74-79 of the Zon ing Resolution, the speaker disagreed with the depart ment’s position that subsurface fee ownership of parcels between the Terminal and the development site does not constitute the chain-of-ownership required under Section 74-79. The speaker reiterated the railroad’s position that the sub-surface fees have been used for railroad purpos have been recognized as tax lots, and have been leased to third parties, and consequently are lots under Ss 74-79 chon The speaker also disagreed with the conclusion of the Landmarks Preservation Commission relating to the con tinuing maintenance of Grand Central Terminal and the applicants’ proposed maintenance plan. The speaker as serted that the applicants’ proposed plan, which contrib utes additional money to a previously existing fund es tablished in 1979, was adequate The speaker submitted a statement and supporting docu ments which further detailed these arguments A second speaker, representing 383 Madison Associates, the developer of 383 Madison and a co-applicant, also expressed his concern that the Terminal’s owner not be denied the use of development rights from Grand Central, adding that there should be just compensation if use 1s denied. The speaker asserted that the approximately 1.7 million square feet of Grand Central Terminal’s develop- ment rights must be placed somewhere and that the re sulting overall density of the neighborhood would not be greater no matter how the development rights are dis- persed. The speaker also noted that the applicants’ pro- posed maintenance plan, which consists of a contribution to a maintenance plan previously approved by the Land- marks Preservation Commission and the City Planning Commission in 1979, should be considered acceptable to- day. The speaker also asked the City Planning Commis- sion to prepare and make public plans for distributing the 1.7 million square feet of the Terminal’s development rights. 35a The third speaker, also a representative of the developer, asked the Commission and department to make public the reasoning behind department staff position that the site at 383 Madison was not eligible to receive the trans fer of development rights from Grand Central Terminal. The hearing was continued until July 26, 1989 (Calendar No. 51). At the hearing on July 26, 19%9 there were no speakers, and the hearing was closed. CONSIDERATION After considering the eligibility and merits of the appli- cation, the Commission has determined that it cannot approve this project. The Commission notes that these issucs Of eligibility and merit have been long outstand- ing and have been raised by the community board, the Landmarks Preservation Commission, the Department of City Planning and the Law Department well prior to certification of this application. Subsequent to certification, the project was found to have omitted pedestrian circulation clements required by Sec- tion %1-40 of the Zoning Resolution (Mandatory Dis- trict Plan Elements of the Midtown Special District). Additionally, during the course of the Uniform Land Use Review Procedure, the application withdrew the proposal for the text change and the request for the authoriza- tion. The applicant revised building plans to bring the project into conformance with Section 81-42 as currently written, removing the need for these actions. The Commission also notes that at certification the Draft Environmental Impact Statement was, in the opinion of the Departments of Environmental Protection and City Planning, incomplete and that considerable doubt had been established in terms of its accuracy, particularly with respect to traffic, transportation, noise and air quality. During the preparation of the Final Environmental [m- pact Statement, the applicant was required to submit com- pletely new analyses for these and other issues. The 36a EPEIS disclosed that the project would generate numerous significant: environmental impacts which had not been identified in the Draft Environmental Impact Statement. These impacts are discused in the environmental portion of this report. Ineligibility under Section 74-79 of the Zoning Resolution The Commission has been advised by its Counsel that this application is not cligible under Section 74-79 be cause the underlying requirements of the section have not been met. We concur. The tert of the Zoning Reso lution permits the transfer of development rights from landmark sites to adjacent lots, which are defined in CS-3 and other zones where 1S FAR is permitted as lots * across a street and opposite to another lot or lots which except for the intervention of streets or street Intersections form a series extending to the lot occupied by the land mark building or other structure. All such lots shall be in the same ownership (fee ownership or ownership as detined under zoning lot in Section 12-10)." Thus, the basis of any application pursuant to this section is a serics (or “chain”) of common ownership between the land mark lot and the receiving lot, and none of the docu- mentation submitted by the applicant proves that the requisite chain has been established. At the pubile hearing and in written submissions, the co-applicants have argued that 383 Madison Avenue is eligible as an adjacent lot to receive development rights from Grand Central Terminal because, in their view, sub- surface “tax lots” qualify as lots within Section 74-79 and therefore, their ownership of a series of these sub- surface tax lots between Grand Central Terminal and 383 Madison Avenue constitutes the requisite chain. We do not agree with this position. Under the Zoning Resolution, it is zoning lots that are the essential means of regulating land use throughout the city. The primacy of the zoning lot concept is the backbone of the Resolu- tion and the basic measure used in calculating compliance 37a with zoning. Development rights are attributes of the surface area of a zoning lot. Therefore, the consistent use of the term “lot” makes clear that the bulk calcula tions are based on the surface area of each tract of land, not the subsurface. We note that many of the Resolu tion's definitions, set forth in Section 12-10, incorporate the term “zoning lot” via a shorthand use of the term “lot.” Examples of this drafting feature are the terms lot area,” “lot area per room, and “lot coverage.” Phe Commission also notes that there is no definition of the term “lot” and that when the Zoning Resolution re fers to a tax lot, tt uses the term “a lot of record,” as in the Section 12-10 definition of zoning lot [Ihe Commission concludes that the drafters similarly used the term “adjacent lot” in Section 74-79, while in tending it to mean “adjacent zoning lot In analyzing whether there is a legally-complying chain of ownership of the intervening lots between the sending and re ing sites, therefore, our inquiry focuses on whether the relevant intervening zoning lots are in common ownership In this case, the ownershi subsurface fee interests which do not include right the surface of the land, and which do not otiierwise join the partics-in-interest who control the ability to develop these lots in accordance with zoning Staff has informed the applicant that the transfer would be eligible under Section 74-79 if the appropriate intervening parties-in- interest joined in the application as required by Section 12-10. The co-applicants have chosen not to join the rr parties-in-interest 4 Based on the foregoing, the Commission concludes that the instant application does not qualify under Section 74 79 of the Zoning Resolution Plannine Issues In reviewing this application tne ( mmission caretu considered the pia! 7’ and densitv issues that are raiser : by this application Decause these are Matters which the 38a City Charter mandates as our responsibility. Even if the proposed transfer were legally cligible, we would none theless be compelled to deny the application because of the excessive bulk and density proposed The application requests the transfer of 787,335 square fect of development rights from Grand Central Terminal to be placed on top of the 649,665 square feet allowed at 383 Madison Avenue as-of-right. This transfer would result in a building with a maximum of 1,437,000 square feet or 33 FAR, more than twice the FAR permitted by the zoning in the Grand Central area. The Commission notes that before 1961, even when New York City’s Zoning Code included no absolute controls limiting the density of commercial development, buildings were rarely constructed with densities greater than 25 FAR. In the Grand Cen tral area the Chrysler Building, built in 1928, was the densest at 26 FAR. The Grand Central district is one of the most heavily developed parts of Midtown, enjoying the benefits of easy accessibility by mass transit from other parts of the city and the region, and is a major generator of jobs for the entire city. The Commission recognizes that high density development within reasonably prescribed limits 1s ap- propriate for the Grand Central district and contributes to its continued vitality. However, the Commission has had a long and firm record of placing maximum limits on permissible density in Midtown and throughout the city, based on its historical concern about the ill effects of excessive congestion and over-crowding. In 1961, the City Planning Commission revised zoning in Midtown Manhattan to include density controls which placed a maximum as-of-right-density of 15 FAR to limit over-building, particularly in the Midtown Manhattan core and the Grand Central area where most post-war construction was occurring. These overall limits were seen as a way of encouraging office development to spread 39a to a wider area of the Central Business District and re- lieve pressure on overburdened transit facilities. The Commission permitted greater densities only through floor area bonuses with a maximum of 18 FAR for pro viding plazas and street level open spaces to bring light and air into streets surrounded by tall buildings and to provide a more attractive and open street environment Subsequently, in the late 1960s and 1970s, the Commis sion introduced Special Purpose Districts in Midtown and elsewhere throughout the city to address planning and urban design issues particular to specific settings. In Midtown, the Theatre District and the Fifth Avenue Dis- trict permitted densities up to 21.6 FAR, the highest in the city, only if various specific designated amenities were provided. In 1982, when the City Planning Commission developed the Midtown Special District, the Commission designated East Midtown as an area for “stabilization,” lowering the permitted density in Midtown from a maximum 18 FAR (15 FAR as-of-right plus 3 FAR bonus) to 16 FAR (15 FAR as-of-right plus | FAR bonus), a reduc- tion of 2 FAR, and in certain parts of East Midtown, from 18 FAR to 13 FAR (12 FAR as-of-right plus | FAR bonus). The Commission undertook this action to relieve development pressures and ease congestion and overcrowding in East Midtown. The Commission reaf firmed its policy on limiting density as recently as 1988 when it reviewed the Midtown District, confirming that many of the district’s goals were being met, including a shift of development from East Midtown to the West Side. Notwithstanding the Commission’s authority under Sec- tion 74-79 to permit the transfer of development rights without limits as to density, the Commission has never approved a development in Midtewn whose density is greater than 21.6 FAR over a single zoning lot. (The ele 40a Philip Morris Building, which incorporates the first devel- opment rights transfer from Grand Central Terminal, was approved with a maximum density no greater than 21.6 FAR.) Nor can the Commission contemplate reversing itself on its stabilization policy by permitting a 33.15 FAR building without due and careful consideration of its implications for East Midtown and the Grand Cen tral area. At the public hearing, the applicant stated that the pro posal effectively created no new floor area, and intro duced no additional density to the neighborhood beyond that contemplated by the Commission when the area was rezoned in 1982. The Commission understands this as- sessment but notes that the issue here is not the addition of new floor area to the neighborhood, but its severe concentration at one location, and on one relatively small site. With this proposal, 4,900 workers and visitors (twice the number an as-of-right building would house ) will add to already existing congestion in this area. While the applicant has proposed steps to alleviate this problem for its own block by providing an arcade along Madison Avenue, corner arcades on East 47th and East 46th streets at Vanderbilt Avenue, and two transit con- nections for building occupants and the general public, the additional congestion created by this building would spill over to crosswalks, other blocks, and already con- gested transit facilities in the neighborhood. The pro- posal to extend the Vanderbilt Passageway as a way of alleviating some of this sidewalk congestion does not rec- ognize that the passage is already congested at peak hours. The Commission is unable to make the finding which is a prerequisite to the grant of a special permit under Sec- tion 74-791 (5)(a) of the Zoning Resolution, “that the permitted transfer of floor area . . Will not unduly in crease the bulk of any new development, density of popu- lation or intensity of use in any hlock to the detriment 4la of the occupants of buildings on the block of nearby blocks, .. 2° Environmental Issues The Commission notes that the FEIS discloses that the project would create significant adverse impacts, some ol which cannot be mitigated. We are particularly con cerned that, as stated in the Notice of Completion, at seven locations, the traffic impacts area unmitigatable and that the project “would result in significant adverse im- pacts due to carbon monoxide emissions,” creating new violations of the Clean Air Act that “would exacerbate existing violations.” The Commission notes that th project, with the proposed traffic mitigation, would not conform with the State Implementation Plan (SIP), as three locations would become “hot spots.” The Commis sion is also concerned that a building as high as that pro posed “would be inconsistent with the existing neighbor hood character,” that the proposed building would exa erbate the “existing gross deficiency of open space in the area . . resulting in a significant negative impact on open space,” and that, “significant impact on the Roose- velt passageway at the revolving door would result from increased pedestrian traffic to Grand Central Terminal subways and Metro-North Commuter trains.” The Commission is aware that the applicants have sub mitted additional proposals for mitigation; however, the CEOR staff found that there was no factual basis from which to conclude that these proposed measures wouid be effective Landmarks Report The Commission has reviewed the report of the Land marks Preservation Commission dated October 14, 19% which expressed concerns regarding the lack of an ade , quate program for continuing Maintenarice tO assure the preservation of the landmark. The applicants proposed 42a program, which has not been revised since the Landmarks Preservation Commission and Community Board 5 ex- pressed their concerns in 1987, consists primarily of a fund to be contributed to the Grand Central Terminal Trust by the owners of the Terminal, in the amount of five percent of the total payment received from the de- veloper for the purchase of development rights. This Trust was established in 1979 to receive funds from the sale of 75.000 square feet of development rights from Grand Central Terminal to Philip Morris, Incorporated, for a 26-story office building at Park Avenue and East 42nd Street. The Trust’s purpose is to provide funds for certain maintenance and repairs of the Terminal which are in the interest of its preservation. In addition to the creation of the Trust, Penn Central, as owner of the land- mark, agreed to preserve and maintain the landmark in accordance with the landmarks preservation law, to en- force provisions of its lease with the MTA (lessee of the Terminal and responsible for its maintenance) to main- tain the Terminal and to request that the MTA regularly submit work programs to the owner and Landmarks Pres- ervation Commission for their review. The Landmarks Preservation Commission noted in its October 14. 1987 report that no work programs OF reports had been sub- mitted to the Landmarks Preservation Commission, stat- ing that, “. . . in the absence of a clear process whereby the [Landmarks Preservation] Commission is provided with a present conditions report, work program and regu- larly scheduled maintenance reports neither it, nor the owner, can be assured that potential problems which might be identified in such reports are addressed and cor- rected.” Penn Central's contribution to the Trust in 1979, representing five percent of the total funds realized from the transfer of development rights from Grand Cen- tral Terminal, was approximately $1 12,000. The current application, also a contribution of five percent of the funds realized from the proposed transfer, would involve » contribution of approximately $2,200,000. 43a The City Planning Commission concurs with the Land- marks Preservation Commission’s finding “. . . that the program for continuing maintenance based solely on a further contribution of five percent of the proceeds to the Trust and confirmation that [Penn Central] shall continue to enforce the maintenance provisions of the MTA lease without indicating how it intends to implement the confirmation, is not sufficient to assure the preservation of the Landmark.” The City Planning Commission, which must weigh the benefits of the landmark’s preserva- tion against the disadvantages of the concentration of excess bulk and density and must determine whether the application includes a maintenance program, cannot find either that the preservation program as presented, offsets the disadvantages to the surrounding area, or that there is a program that will result in the preservation of the landmark. The Commission has, for some time, recognized the nec- essity of formulating a comprehensive planning frame- work in the Grand Central area which would guide devel- opment in a manner appropriate to the scale and char- acter of the area and would build upon and enhance the area’s transit and transportation infrastructure. The Commission envisions a planning framework that would also reflect the development rights that now exist at the landmark Grand Central Terminal. Staff has been work- ing on the development of such a framework and is pre- paring a discussion document for public comment. FINDINGS Pursuant to Section 74-79 of the Zoning Resolution, the City Planning Commission may permit the transfer of development rights to an adjacent lot. if it makes the fol- lowing findings: “(a) That the permitted transfer of floor area or variations in the front height and setback regulations will not unduly increase the bulk of any new devel- 44a opment, density of population or intensity of use in any block to the detriment of the occupants of build- ines on the bloc’ or nearby blocks, and that any disadvantages to the surrounding area caused by re- duced access of light and air will be more than offset by the advantages of the landmark’s preservation to the local comm:nity and the City as a whole, and (b) that the program for continuing maintenance will result in the preservation of the landmark. (c) That in the case of landmark sites owned by the City, State or Federal Government, transfer of development rights shall be contingent upon provi- sion by the applicant of a major improvement of the public pedestrian circulation or transportation §sys- t¢ém in the area.” r \n adiacent lot is one “. . . which is across a street and onnosite to another lot or lots which except for the in- tervention of streeis or street intersections form a series or other structure. All such lots shall be in the same ownership (fee ownership or ownership as defined under -oning lot in Section 12-10).” The Commission finds that 383 Madison Avenue is not in adjacent lot and that the application is not legally ‘ligible because it docs not meet the requisite ownership requirements. The Commission is unable to make find- ines (a) and (b) of Section 74-79 and finds that the transfer of 787,335 square feet of floor area from Grand Central Terminal to the site at 383 Madison Avenue would unduly increase the bulk, density of population and intensity of use to the detriment of the occupants of buildings on nearby blocks, and that the disadvantages to the surrounding area caused by reduced access to light and air are not offset by the advantages of the landmark’s preservation to the local community and the city as a whole, and that the proposed program for continuing 45a maintenance does not result in the preservation of the landmark. Finding (c) of Section 74-79 does not apply. RESOLUTION RESOLVED, that having considered the Final Environ- mental Impact Statement, for which a Notice of Comple- tion was issued on August 12, 1989, with respect to this application (CEQR No. 85-098M), the City Planning Commission finds that the proposed actions do not suffi- ciently minimize or avoid adverse environmental impacts and that the potential mitigative measures that have been identified are only capable of mitigating a portion of the disclosed adverse impacts. Based on the environmental determinations and the con- sideration described in this report, the Commission has determined that this application does not warrant ap- proval, and adopted the following resolution on August 23, 1989 (Calendar No. 32). RESOLVED, by the City Planning Commission, pursuant to Sections 197-c and 200 of the New York City Charter, that the application (C870193 ZSM) for the grant of a special permit pursuant to Section 74-79 of the Zoning Resolution to allow the transfer of development rights (787,335 square feet) from a lot occupied by Grand Central Terminal, a landmark building, to a lot bounded by Madison Avenue, East 46th Street, Vanderbilt Avenue and East 47th Street (Block 1282, Lot 21), and allow the maximum permitted floor area on such lot to be in- creased on the basis of such transfer of development rights to facilitate the development of a 74-story office building on the above-mentioned lot in a C5-3 district, within the Special Midtown District, Borough of Man- hattan, Community District Five is DISAPPROVED. Pursuant to Section 200 of the New York City Charter, the action by the City Planning Commission in this mat- 46a ter is final. The report is forwarded to the Secretary of the Board of Estimate for information and filing. Sylvia Deutsch, Chairperson Denise M. Scheinberg, Vice-Chairperson Salvatore C. Gagliardo, Marilyn Mammano, William Garrison McNeil, Daniel T. Scannell, Commissioners 47a APPENDIX E STATE OF NEW YORK COURT OF APPEALS At a session of the Court, held at Court of Appeals Hall in the City of Albany on the fourteenth day of September 1993 Present, HON. JUDITH S. Kaye, Chief Judge, presiding Mo. No. 1023 SSD 59 383 MADISON ASSOCIATES, Appellant, Vv. City OF NEw York, et al., Respondents. The appellant having filed notice of appeal in the above title and due consideration having been thereupon had, it is ORDERED, that the appeal be and the same hereby is dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved. 's’ Stuart M. Cohen STUART M. COHEN Deputy Clerk of the Court 48a APPENDIX F STATE OF NEW YORK COURT OF APPEALS At a session of the Court, held at Court of Appeals Hall in the City of Albany on the eleventh day of Jan uary 1994 Present, Hon. Jupiru S. Kaye, Chief Judge, presiding 1-14 Mo. No. 1250 383 MADISON ASSOCIATES, Appellant, City oF NEw York, et al., Respondents. A motion for leave to appeal to the Court of Appeals in the above cause having heretofore been made upon the part of the appellant herein and papers having been sub- mitted thereon and due deliberation having been there- upon had, it is ORDERED, that the said motion be and the same hereby is denied with one hundred dollars costs and necessary reproduction disbursements. Judge Titone took no part. s’ Donald M. Sheraw DONALD M. SHERAW Clerk of the Court 49a APPENDIX G ZONING RESOLUTION PROVISIONS INVOLVED 74-79 Transfer of Development Rights from Landmark Sites In all disiricts except RI, R2, R3, R4, or RS Districts or Cl or C2 Districts mapped within such districts, for new developments or enlargements, the City Planning Com- mission may permit development rights to be transferred to adjacent lots from lots occupied by landmark buildings or other structures, may permit the maximum permitted floor area on such adjacent lot to be increased on the basis of such transfer of development rights, may permit, in the case of residential developments or enlargements, the minimum required open space or the minimum lot area per room to be reduced on the basis of such transfer of development rights, may permit variations in the front height and setback regulations and the regulations gov- erning the size of required loading berths, and minor variations in plaza, arcade and yard regulations, for the purpose of providing a harmonious architectural relation- ship between the development or enlargement and the landmark building or other structure. For the purposes of this Section, the term “adjacent lot” shall mean a lot which is contiguous to the lot occupied by the landmark building or other structure or one which is across a street and opposite to the lot occupied by the landmark building or other structure or, in the case of a corner lot, one which fronts.on the same Street intersec- tion as the lot occupied by the landmark building or other structure. It shall also mean in the case of lots located in C5-3, C5-5, C6-6, C6-7 or C6-9 Districts a lot con- tiguous or one which is across a street and opposite to another lot or lots which except for the intervention of streets or Street intersections form a series extending to 50a the lot occupied by the landmark building or other struc- ture. All such lots shall be in the same ownership (fee ownership or ownership as defined under zoning lot in Section 12-10). The grant of any special permit authorizing the transfer and use of such development rights shall be in accord- ance with all the regulations set forth in Sections 74- 791 (Requirements for application), 74-792 (Conditions and limitations), and 74-793 (Transfer instruments and notice of restrictions). 74-791 Requirements for application An application to the City Planning Commission for a grant of a special permit to allow a transfer of develop- ment rights and construction based thereon shall be made by the owners of the respective zoning lots and shall in- clude: a site plan of the landmark lot and the adjacent lot including plans for all development on the adjacent lot; a program for the continuing maintenance of the land- mark; and such other information as may be required by the City Planning Commission. The application shall be accompanied by a report from the Landmarks Preser- vation Commission. A separate application shall be filed for each independent “adjacent lot” to which development rights or [sic] being transferred under this Section. 74-792 Conditions and limitations 3. When “adjacent lots” are located in C5-3, C5-5, C6-6, C6-7 or C6-9 districts and are to be developed with 5la commercial buildings the following conditions and limi- tations shall apply: (a) the maximum amount of floor area that may be transferred from any zoning lot occupied by a landmark building, shall be the maximum floor area allowed by Section 33-120.5 for commercial build- ines on said landmark zoning lot, as if it were un- developed, less the total fleor area of all existing buildings on the landmark zoning lot. (b) for each such adjacent zoning lot the increase in floor area allowed by the transfer of development rights under this Section shall be over and above the maximum floor area allowed by the applicable dis- trict regulations. (c) the Commission may require where appropriate, that the design of the development include provisions for public amenities such as, but not limited to, open public spaces, subsurface pedestrian passageways leading to public transportation facilities, plazas and arcades. 5. As a condition of permitting such transfers of de- velopment rights, the Commission shall make the follow- ing findings: (a) That the permitted transfer of floor area or variations in the front height and setback regula- tions will not unduly increase the bulk of any new development, density of population or intensity of use in any block to the detriment of the occupants of buildings on the block or nearby blocks, and that any disadvantages to the surrounding area caused by reduced access of light and air will be more than offset by the advantages of the landmark’s preser- vation to the local community and the City as a whole, and 52a (b) that the program for continuing maintenance will result in the preservation of the landmark. (c) That in the case of landmark sites owned by the City, State or Federal Government, transfer of de velopment rights shall be contingent upon provision by the applicant of a major improvement of the public pedestrian circulation or transportation sys- tem in the area. The City Planning Commission shall give due considera tion to the relationship between the landmark building and any new buildings developed on the adjacent lot regarding materials, design, scale, and location of bulk. The Commission may prescribe appropriate conditions and safeguards to minimize adverse effects on the char acter of the surrounding area. 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JFOLIIPQNS @17ReUT, Ul @IQRITRAR JON | oa - ) AlavJead a 0% oT g 30] Surat , uedU(pR,, UY UO peZzTTIpN eq Avu FRY} 30] Suruoz yawupuyy woody (MV) 84S queuidojeAep 8[GRiajsuvsy, JO JUNOUTR WNTUIXY "T 56a 81-212 Special provisions for transfer of development rights from landmark sites The provisions of Section 74-79 (Transfer of Develop- ment Rights from Landmark Sites) shall apply in the Special Midtown District subject to the modifications set forth in this Section and Sections 81-254 (Special permit for height and setback modifications), 81-266 (Special permit for height and setback modifications ) and 81-747 (Transfer of development rights from landmark theatres). The provisions of Section 74-79 pertaining to the mean- ing of the term “adjacent lot” in the case of lots located in C5-3, C5-5, C6-6, C6-7 or C6-9 Districts are modified to apply in the Special Midtown District where the “ad- jacent lot” is in a C5-3, C6-6, C6-7, [C5-3.5,] C6-5.5, C6-6.5 or [6-7.5] C6-7T District. The provisions of paragraph 3 of Section 74-792 as ap- plied in the Special Midtown District shall be subject to the restrictions set forth in the table in Section 81-211 on the development rights (FAR) of a landmark “granting” lot for transfer purposes. Wherever there is an inconsistency between any provision in Section 74-79 and the table in Section 81-211, the table in Section 81-211 shall apply. 81-213 Developments or enlargements on landmark sites The provisions of Section 74-712 (Developments or en- largements on landmark sites in certain districts), are applicable in C5-3, C6-6 [,] and C6-7 [, C5-3.5, C6-6.5 and C6-7.5] Districts where such districts are located within the Special Midtown District and * * * * 57a APPENDIX H CITY PLANNING COMMISSION November 5, 1969/Cal. No. 32 CP-20938 IN THE MATTER OF amendments, pursuant to Sec- tion 200 of the New York City Charter of the Zoning Resolution of The City of New York, relating to Sections 33-120.5 74-79, 74-791, 74-792 and 74-793 concerning transfer of development rights from landmark sites. On motion, the following favorable report, as modified, was unanimously adopted: November 5, 1969. To Secretary, Board of Estimate from City Planning Com- mission: Pursuant to Section 200 of the New York City Char- ter, the City Planning Commission on October 8, 1969, Cal. No. 13, authorized a public hearing on amendments of the Zoning Resolution of The City of New York, re- lating to sections 74-79, 74-791, 74-792, and 74-793 concerning the transfer of development rights from a landmark site as follows: * * * * The purpose of these amendments is to make available a method of retaining and maintaining landmark build- ings which the Landmarks Preservation Commission and the Board of Estimate have designated worthy of preser- vation. The amendments will provide economic relief to the owner of a landmark building by permitting the trans- fer of development rights from a landmark site to adja- cent lots or to any of a chain of adjacent lots in the same ownership as the landmark site. 58a \ landmark may be located on a lot where the Zoning Resolution would perm?! a much larger building to be constructed and where intensive development is appro priate and economically desirable. The present use of the land may not represent its economic potential. The amendments will permit an owner of a landmark to real ize the value of the land by transferring unused floor area potential to appropriate locations in order to preserve the landmarks. Any transfer of development rights under these amend- ments would be subject to the grant of a special permit by the City Planning Commission and the Board of Esti mate and would require that safeguards be taken to avoid adverse effects on the character of the surrounding area. The amendment was therefore modified, after the public hearing, to make clear that this amendment is applicable only in C5-3, C5-5, C6-6, C6-7 and C6-9 Districts. + * * 7 59a APPENDIX I CITY PLANNING COMMISSION March 16, 1982/Cal. No. 1 N 820253 ZRM N 820253 ZRM (A) Amendment of the Zoning Resolution, pursuant to Sec- tion 200 of the New York City Charter, relating to Article VIII, Chapter 1, Section 31-00, and miscellan- eous changes in other sections for establishing a Special Midtown District which contains growth, stabilization and preservation areas. The proposed amendment of the Zoning Resolution and the related amendment of the Zoning Map would establish a Special Midtown District containing growth, Stabilization and preservation areas. The amendments are a response to the over-concentration of development that has become a source of deep concern to community boards, civic organizations, the development community and the general public. These amendments are intended to encourage the growth of Midtown to the west and south, and to ease development pressures on its con- gested, highiy-developed East Side core. The major fea- tures of the amendments are summarized below. I. SUMMARY OF MAJOR FEATURES & < « «K 4. Landmark Transfers. e existing zoning regula- tions encourage landmark preservation by allowing Land- marks to transfer development rights to adjacent lots. Such transfers may extend through a chain of ownership — 60a to a receiving lot contiguous with or across the street from the landmark granting site. In the highest density commercial Midtown districts, an eligible receiving lot can, regardless of the existing scale of development, ac- cept transfer of any amount of additional density from a landmark. Limits are placed only on the amount that any granting site can transfer. These provisions are all car- ried forward into the proposed special Midtown District regulations without change. In Midtown the unused development rights above a landmark which may be transferred are limited by the FAR 18 maximum, consisting of a base FAR 15 plus an FAR 3 plaza bonus, available under the current zoning. * * * * 6la APPENDIX J Grand Central Area Proposal for a Special Sub-District Edward I. Koch, Mayor City of New York New York Department of City Planning Sylvia Deutsch, Director Con How«w, Executive Director November i989 NYC DCP #89-45 62a Planning Context A critical planning and development issue is the potential impact that the use of development rights from Grand Central Terminal could have on the surrounding area. As a designated New York City landmark, the terminal could potentially transfer some or all of its approxi- mately 1,700,000 square feet of unused development rights. The current transfer mechanism, Section 74-79 of the Zoning Resolution, permits transfers to those sites immediately adjacent to the landmark or a chain of own- ership. This mechanism was used in 1979 when the City Planning Commission and Board of Estimate approved a special permit for the conveyance of 74,655 square feet of development rights from Grand Central Terminal to the site of the former Airlines Terminal Building on the southwest corner of 42nd Street and Park Avenue to facilitate the construction of the Philip Morris head- quarters. The approved special permit allowed for a 447,930 square foot building (21.6 FAR). In taking a broader view of a potential transfer of de- velopment rights from Grand Central Terminal, the fol- lowing { tors must be considered: ® Due to the termina’’s relatively low density and large footprint, a substantial amount of develop- ment rights is available for transfer. 1In addition to the terminal building itself, there are four other designated New York City landmarks within a few blocks of the terminal complex: the Helmsley Building between 45th and 46th streets at Park Avenue, the Chrysler Building on the northeast corner of 42nd Street at Lexington Avenue, the Chanin Building on the southwest corner of 42nd Street and Lexington Avenue, and the French Building at 45th Street and Fifth Avenue. All but the terminal building contain more floor area than is now permitted by zoning and therefore do not have any development rights to transfer. 63a * Current zoning regulations permit dev «pment rights to be distributed over an area de*iied pri- marily by the terminal’s complicated ownership patterns rather than by a plan based upon ap- propriate planning concerns. * Currently the 74-79 special permit mechanism does not place a specific limit on the amount of development rights which may be transferred to any one parcel. The amount of transfer per- mitted is at the discretion of the City Planning Commission ani the Board of Estimate in ac- cordance with the required findings of Section 74-792. Opportunities to expand Grand Central Terminal’s valuable pedestrian circulation network have not been maximized. Collectively, these circumstances make it clear that the current regulations could lead to an ad hoc series of applications for the transfer of development rights from the terminal under Section 74-79. In order to provide a comprehensive planning framework to govern the trans- fer of development rights from landmarks, City Planning proposes a new Grand Central Sub-District within the Special Midtown District. The following objectives would be achieved by the plan: * Formation of a m-sre rational method for distributing development rights. * Reinforcement of the established character of the Grand Central area. * * * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1239%3A1. Public record. Not legal advice.