UES Safe Haven Held Up By Zoning Problem As Zabar Suit Drags On

UPPER EAST SIDE, NY — Eli Zabar may not be the only thing blocking the construction of a new safe haven shelter in Yorkville.

The long-delayed project at 419 East 91st St. has also been beset by zoning issues that prompted the city to threaten to revoke construction permits earlier this year — a previously unreported snafu that could help explain a recent change to the facility's model, according to one expert.

Meanwhile, as the legal battle between Zabar and the shelter developers has dragged on, the restaurateur himself took the stand in court last month, revealing that his reasons for opposing the project may be broader than his attorneys had let on.

With the 88-bed shelter now long past its planned opening date of January 2022, both disputes — along with the surprise dropout of its provider over the summer — threaten to further delay a facility that neighborhood leaders say would address a critical need for homeless services in Yorkville.

Here's what we've learned in recent weeks.

A "serious" zoning challenge

In January, attorneys for a neighborhood group opposed to the safe haven sent a letter to the city's Department of Buildings (DOB), laying out a list of objections to the project.

Calling itself the Yorkville Community Coalition, the group's leaders have included Tina Ferriola, who runs a children's gymnastics gym next-door to the planned shelter building and has been an outspoken opponent, claiming that shelter residents would endanger kids visiting her gym and other nearby facilities like Asphalt Green.

But the letter focused mostly on construction plans for the safe haven, which would occupy a new seven-story building between First and York avenues. Among the letter's technical claims was that the project had been incorrectly labeled as a "hotel," when in fact it would serve as a "rooming house" — a residential category that would not be allowed under the block's zoning scheme.

The DOB was receptive to those claims — within weeks, it issued a notice to revoke its prior approval of the construction plans. Among its 15 "objections" was a claim that the project had been misclassified based on the city's multiple dwelling law.

Since that February notice, shelter developers Bayrock Capital have been at work trying to resolve the city's objections. But months later, "not all of the objections have been resolved," according to a DOB spokesperson, meaning the threat of revoked permits is still looming.

George Janes, a zoning expert not involved in the project, told Patch that the city's objections were "serious."

The dispute over the "hotel" category, he said, could potentially explain why the Department of Homeless Services changed the safe haven's model in August to focus on shorter-term stays — an unexplained move that prompted the facility's planned provider, Goddard Riverside, to withdraw from the project.

"If a hotel is for permanent occupancy, it is an apartment hotel, which is a residential use which is not permitted in this district, so this change may very well be related to the objection," Janes said in an email.

But Russell Squire, who chairs the neighborhood's Community Board 8, told Patch that DHS officials have insisted the zoning was no issue, pointing to a 2013 state court ruling that allowed a homeless shelter to open on a Chelsea block with a different zoning scheme.

"They haven't told us why the service model changed or what the new plan for the service model is," Squire said. "We've been told repeatedly that it is not a zoning issue."

DHS has not announced a new provider for the safe haven, and would not comment directly on the zoning dispute. In a statement, spokesperson Neha Sharma said that the agency would only accept "a finished product that is ready for occupancy, operated by a qualified not-for-profit provider-partner, offering robust wraparound services and supports to New Yorkers experiencing homelessness."

The Yorkville Community Coalition could not be reached for comment. Their attorney who sent the January letter to DOB was Randy Mastro, a former deputy mayor under Rudy Giuliani more recently known for representing Upper West Side residents who sought to block the city's temporary hotel shelters in 2020.

The coalition's activities in recent months are unclear, though it has asked neighbors for donations to "cover our legal expenses and to raise awareness." Mastro has since left his former firm, Gibson Dunn, and did not respond to a request for comment.

"Not a successful kind of project"

The shelter developers' other chief obstacle has been Zabar, who owns the building next door to the safe haven site at 421 East 91st St.

The famed fine-food maven has said for months that the shelter's construction plans risk damaging the roof and foundation of his own building, which houses Ferriola's gymnastics studio. For that reason, Zabar has refused to give access to his building so that developers can install required safety protections to start construction.

Zabar prevailed in a previous lawsuit brought against him by Bayrock earlier this year, which sought to force him to give access to his building. But Bayrock's subsequent suit, filed in July, included an explosive claim: that Zabar himself had vowed privately to do "everything he could to delay" the project, and tried to limit use of the shelter to "a specific gender."

In November, Zabar took the stand to testify under oath at an evidentiary hearing for the court case. According to a transcript, Zabar flatly denied having raised "any objection" to the safe haven, and said he never expressed a preference that the shelter be for women only.

But Zabar did suggest that his concerns go beyond construction safety. Responding to a question from the developers' attorney, Zabar said he "absolutely" opposed Community Board 8's near-unanimous vote in 2021 to support the safe haven.

"[We] support, and I support, any successful homeless project," Zabar said. "But that particular project, that particular project is known to be a failure. And, in fact, Riverside Goddard, which is the leading center for homeless projects in the city backed out of that project because it's not a successful -- it's not a successful kind of project."

"Putting many people in a room, in a hotel use, which is not permitted on that site, is not a successful equation for our homeless problem," he added.

Zabar's concerns mirror those of the Yorkville group, whom he alluded to during the hearing, saying that "the community at large has hired Gibson Dunn to oppose the illegal use of that, of that zoning."

The bitter lawsuit has included personal barbs flying between lawyers for both parties. Since the November hearing, both sides have argued in court filings that Zabar's testimony bolstered their case: the developers' attorneys said Zabar's statements revealed that he "clearly [does] not want the current homeless facility to be built," while Zabar's lawyer said the restaurateur rebutted claims that he is trying to delay the project.

The city has insisted that the latest plans for the shelter retain the defining aspects of a safe haven: low thresholds for admission and fewer rules governing clients' behavior, allowing them to get off the streets and into a safe bed as quickly as possible.

According to City Council Member Julie Menin's office, the changes that prompted Goddard to drop out entailed making the safe haven more of a "welcome center" where unhoused people would stay for shorter periods, rather than the longer-term stays that had been envisioned earlier.

Amid the setbacks, DHS is now eyeing a 2024 opening date, the agency told Patch in August.

Once built, it would serve adult men and women, providing meals, social services and counseling, with 24/7 security and psychiatry services for seriously mentally ill clients.

Menin and other neighborhood leaders have called for the safe haven to be built without further delay. In a community board meeting last year, Ben Kallos, the former City Councilman who helped secure plans for the safe haven, referred to a man he sees on the street most days on East 93rd Street and Second Avenue.

"Does the man on 93rd have to stay there for the rest of his life," Kallos asked, "or can we offer him something two blocks away?"

Related coverage:

• Upper East Side Safe Haven Plans Jolted As Shelter Provider Drops Out
• Eli Zabar Is No NIMBY, Lawyers Tell Upper East Side Shelter Defenders
• New UES Shelter Overwhelmingly Backed By Community Board
• New 'Safe Haven' Shelter On Upper East Side Welcomed By Board