April 17, 2007

My name is Thomas K. Duane and I represent New York State's 29th Senate District, which includes the East Village where New York University (NYU) is constructing a 26-story dormitory building at 120 East 12th Street. In order to build to that height, NYU purchased 61,000 square feet of air rights from the United States Postal Service's (USPS) neighboring Cooper Station Post Office with the authorization of the New York City Department of Buildings (DOB). I have strong reservations about DOB's decision to authorize the transfer of those development rights, and urge the Board of Standards and Appeals (BSA) to rule against DOB in this matter.

As you know, New York City zoning law allows unused development rights from one property to be sold to the owner of a neighboring property on the condition that the original owner can no longer use those rights to build on its property. In most cases, the City is able to enforce the conditions of such transfers by denying permits to property owners who seek to build with development rights they no longer own.

The fundamental problem with DOB's approval of the transfer in question today is that Federal agencies, such as USPS, are exempt from New York City zoning regulations and laws. As a result, the City has no authority to enforce the terms of the transfer. Allowing the sale of air rights by entities outside the City's jurisdiction undermines the zoning regulations and laws that were designed to protect our City and our neighborhoods from overdevelopment. In this case, the City has no power to enforce the terms of the sale, or to prevent USPS from building on its land again with the very air rights that have ostensibly been gtransferred.h

In the absence of this enforcement ability, the best we can do is count on USPS to honor the spirit of the law, or rely upon the developer who purchased the rights to seek to prevent USPS from reusing them. Even if USPS or the developer had a reputation for acting in the public interest, the City should not in any case be ceding its responsibility to enforce zoning regulations.

That said, let me note that for more than two years, USPS has ignored Federal legal procedure by selling air rights from its post office stations to private developers without undergoing required Section 106 review under the National Historic Preservation Act. Despite numerous calls from me, my colleagues on all levels of government, relevant agencies and USPS' own admission of error, USPS chose to disregard its own promises to follow proper review and pushed the sale of its development rights. That certainly doesn't inspire my confidence in USPS, and suggests it should not be given the unregulated ability to reuse development rights.

In light of these concerns, I reiterate my request that BSA overrule DOB's decision in this case. Thank you for allowing me to testify today and for your consideration.

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