Updated: Thursday, May 17 at 11:35 a.m.
A small activist group and Community Board 8 have put the city in a difficult spot, forcing the city’s lawyers to decide between defending the rights of Kingsbridge Heights residents and the interests of a developer.
The Fort Independence Park Neighborhood Association refuses to back down in the land battle for 3333 Giles Place and last month, the group received a major boost when Charles Moerdler, representing Community Board 8, challenged the city for siding with the developer, GRA V LLC.
FIPNA and Mr. Moerdler, a former commissioner of Housing and Buildings of the City of New York and current CB 8 Land Use committee chair, argue that the Department of Buildings is doing whatever it can — even allowing the developer not to file necessary paperwork — to promote the development against the wishes of its neighbors.
The conflict began in 2004, when the developer hastily poured part of a planned 63-unit building’s foundation. FIPNA members contend the fast action was an effort to finish construction before new zoning regulations initiated by CB 8’s 197-a plan went into effect.
Construction ceased when FIPNA contended the building was set too close to the street, which violated zoning regulations. The case has been swatted around the city’s court system since.
The Department of Buildings reinstated the developer’s original permit in August, which allowed for the developer to appeal to the Board of Standards and Appeals. But the developer has yet to file plans showing how it plans to correct the illegal front wall, according to the DOB.
The BSA took the developer's word that it would be corrected, which FIPNA is appealing.
Last summer, the BSA ruled in favor of GRA V and determined it had sunk enough money into the foundation to continue construction even though the structure violated zoning rules.
But the developer never showed in writing how it planned to amend the illegal encroachment.
FIPNA filed a freedom of information act request to see if the required paperwork had been sent, but only came up with an e-mail from DOB’s Bronx Commissioner Werner DeFoe sent to the developer on Aug. 4.
The e-mail says he believes the problem will be rectified once permits are reinstated. FIPNA fears the developer could tear down the wall (which was the basis for getting vested rights) and start construction over again.
A spokesman for the DOB said the developer was allowed to moved forward because the original plans could be modified.
Dan Padernacht, CB 8 Traffic and Transportation chair who is representing FIPNA pro bono, said he does not understand how the buildings commissioner could allow the plans to go ahead under these circumstances.
“It just doesn’t make sense,” Mr. Padernacht said. “We want to put [the case] under a microscope.”
The small parcel of land has the city tripping over itself.
The zoning changes that prevented the development from moving ahead eight years ago were approved by the City Planning Commission and the City Council to preserve the character of the neighborhood and prevent big apartment developments like the one being built: a five-story, 63-unit apartment building.
But the BSA’s decision says the welfare of the community is not relevant.
Mr. Moerdler said he thinks this is the first time a government agency has actually admitted in writing it does not care about the public interest.
The BSA and the DOB are both city agencies being represented by the Corporation Counsel.
But after FIPNA appealed to CB 8, Mr. Moerdler filed a brief in support of FIPNA on behalf of CB 8. He appeared in Bronx Supreme Court on May 7.
Corporation Counsel filed a brief in opposition, which took issue with Mr. Moerdler and CB 8’s involvement. But Mr. Moerdler reminded the city that it represents the interests of the Community Board, too.
He told the city’s lawyers to either drop their opposition or allow the BSA and DOB to hire private representatives.
Judge Alison Tuitt of the Bronx Supreme Court is reviewing the appeal and will make a decision.