Judges Weigh Whether to Lop Floors Off UWS Tower

A panel of judges in the Appellate Division, First Department on Wednesday heard arguments in the case of 200 Amsterdam, the Upper West Side building that has garnered substantial attention for its potential “haircut,” or the removal of already-built floors at the top of the tower.

In February, New York County Supreme Court Justice W. Franc Perry ruled in favor of the plaintiffs, the Committee for Environmentally Sound Development and the Municipal Art Society of New York, which raised zoning issues relating to the building and its 55-story height. Perry ordered the New York City Department of Buildings to compel 200 Amsterdam’s owner to remove floors exceeding the bulk permitted by city zoning rules.

The developer, Amsterdam Avenue Redevelopment Associates, soon appealed, arguing that Perry should not have allowed a new interpretation of city rules to apply retroactively to floors of the building already constructed.

Selendy & Gay partner Caitlin Halligan, who is representing the developer, argued Wednesday that officials have identified nearly 40 lots around the city with similar circumstances.

“All of that would be thrown up in the air if this interpretation were to be applied retroactively, which is what petitioners are asking you to do here,” she said.

Halligan and Barbara Graves-Poller of the New York City Law Department, representing city agencies that are co-defendants in the case, argued that the case is moot. The plaintiffs failed to seek emergency relief from the First Department on schedule, Halligan said, arguing that the law is clear.

“If that’s the litigation choice that a challenger makes, then they are complicit in the building being completed,” she said.

Richard Emery of Emery Celli Brinckerhoff Abady Ward & Maazel, who is representing the plaintiffs, argued that the developer accepted the risk of moving forward with construction and stipulated away all equitable defenses, including mootness.

“If I [had come] to this court, you would’ve said ‘Well, they’ve taken the risk, there’s no reason to give an injunction.’ It was absolutely clear,” Emery told the panel, which included Judges Barbara Kapnick, Tanya Kennedy, Angela Mazzarelli and Anil Singh.

Emery also disputed Halligan’s assertion about the other buildings in similar circumstances, while she disputed his assertion about the stipulation.

The Real Estate Board of New York and the Association for a Better New York filed an amicus brief in support of the developer’s position, arguing that Perry’s ruling, if upheld, would have “massive negative impacts” on the New York real estate development industry as a whole, and even threaten “economic development more broadly.”

In a statement to the Law Journal, Emery said the court’s ruling in the case will determine the future of transparency in zoning.

“If developers get the blank check they are seeking, the sky is, literally, the limit and communities will be devoid of remedies to stop rapacious exploitation of their neighborhoods,” he said.

Read more:

Upper West Side Skyscraper’s Future Uncertain After NY State Court Ruling

NYC Law Department Sues Brooklyn Landlords Accused of Personally Evicting Tenants Amid Pandemic

How They Did It: $300K Attorney Fee Award Won, Despite State Policy Disfavoring It