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NEW YORK CITY-The Soho Alliance–a community activist group challenging the status of the Trump Soho project in Manhattan–says it now plans to take its fight to the New York State Appellate Division. This comes after the group suffered a significant setback when a state Supreme Court judge upheld the city’s decision to issue a building permit on the hotel-condominium at 246 Spring St., which recently topped out.

The Dec. 19, 2008 ruling by Justice Kibee F. Payne–made public late last week–sustains the May 2008 resolution of the New York City Board of Standards and Appeals. The BSA upheld a determination by the city’s Department of Buildings approving construction of a Use Group 5 transient hotel in West Soho, an area zoned for manufacturing, which essentially means no permanent residential development is allowed.

In a release, Julius Schwarz of Bayrock Group LLC, which is developing the project with the Trump Organization and Sapir Organization, says, “We are grateful for the decision which was as expected, and we now look forward to preparing for Trump Soho’s grand opening which will be taking place in the fall of 2009.”

Sean Sweeney, Soho Alliance president, tells GlobeSt.com that after his group heard about the decision last Friday, “I spoke to a lawyer that evening and now we’re going to the New York State Appellate division.” He adds that the group’s attorney thinks it’ll have better luck with a three-judge panel rather than a single judge ruling alone, as was the case with Payne’s decision.

Sweeney says the group is fighting the project because it wants to preserve what it calls the integrity of the city’s zoning laws. “If Trump gets away with this, every other developer will be busting the zoning resolutions in that area,” he says.

But, according to the city’s Law Department, the Trump Soho project does in fact fulfill zoning requirements as a Use Group 5 hotel, which must be a “transient” facility as defined under current zoning resolutions. Virginia Waters, the department’s senior counsel, tells GlobeSt.com that the “evidence submitted to the DOB and the BSA met the statutory criteria for a Use Group 5 transient hotel, and under that circumstance, DOB had no legal right to deny the building permit.”

A Group 5 transient hotel is a building in which (a) living or sleeping accommodations are used primarily for transient occupancy, and may be rented on a daily basis (b) one or more common entrances serve all such living or sleeping units, and (c) 24-hour desk service is provided in addition to a potpourri of traditional hotel amenities like housekeeping and bellhops.

For its part, the developers of the Trump Soho say in a release that the project brings a new definition of luxury condominium and hotel design to Soho and that owners and guests at the hotel-condominium project will enjoy panoramic views of the city. However, in order to maintain its legal status as a transient hotel, condo dwellers in the new building will be living in Soho on a part-time basis.

“The fact that a unit is occupied by its owner does not overcome the requirement that it be occupied on a transient basis,” which means “the unit owners themselves are limited to occupying their units on a transient basis,” Waters tells GlobeSt.com.

But Sweeney and his Soho Alliance question just how the city expects to inspect much less enforce a 46-floor, 400-unit building and determine whether or not residents are exceeding occupancy time limits. The city says that inspection and enforcement will basically be like all other zoning enforcement matters, with inspectors observing and determining if the occupancy is legal.

“In this instance, the owners of Trump Soho gave the city additional assurances by filing a restrictive declaration which authorizes the levy of financial penalties on units for each day a unit is occupied in excess of the occupancy limitations, one half of such penalties must be paid to the city,” says Waters.

“Additionally, the building has to file an occupancy report annually with the DOB,” she says. “The report is to be certified by an independent CPA and the city may also conduct audits of the occupancy records of the building or may bring an enforcement action.”

Unimpressed, the Soho Alliance continues its protests, while Sweeney cautions that he and his group have no intention on seeing the dismantling of the building. “Our main concern is preserving the integrity of the zoning, not only in Soho, but all of New York City,” he says.

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