The Latest Salvo in the Franklin Place Battle

The background: Franklin Place, the one-block street between White and Franklin, just west of Broadway, is a private street. For decades, possibly centuries, the property owners along Franklin Place, who also own the street itself, have coexisted peacefully. Then the condo at 5 Franklin Place was built, with the main entrance on Franklin Place, rather than Broadway. And the developer, Elad Group, started lobbying the Department of Buildings, the Department of Transportation, and the mayor’s office to prohibit parking on the street. Another owner on Franklin Place sued the DOT once it put up “no standing” signs, and the signs were recently removed.

Now, in a memorandum filed with the New York County Clerk by Holland & Knight lawyer Stuart M. Saft, the condo buyers at 5 Franklin Place (“including many families with young children”) are claiming the developer wasn’t clear enough about the situation:

The approximately 400-page Offering Plan contains only one single reference to the Alley and that is the penultimate Special Risk (Special Risk 32 on page 24) [….] Although Special Risk 32 does disclose that the Alley is a private street [I’m sorry, could you repeat that?] and will not be paved or plowed by the City of New York, numerous material facts relating to the Alley were omitted from the Offering Plan; specifically:

1. Special Risk 32 indicates that the Alley is a Common Element because it is part of the land that is owned by the Condominium, but that is false and misleading. The Alley is not a Common Element and the Condominium has no jurisdiction over the Alley. The Declaration and By-Laws of the Condominium are silent with regard to the Alley. The deeds from the Sponsor to the individual unit owners include their interest in the Alley, so the unit owners are ostensibly tenants-in-common with the approximately eighty individuals and entities that own interests in the Alley (including neighboring property owners).

2. The Offering Plan (and the Sponsor’s deeds to the individual unit owners) indicate that the unit owners benefit from a “non-exclusive easement for vehicular and pedestrian access” 
other agreement among the numerous individuals and entities that own interests in the from their premises across the Alley, although there is no written easement or other agreement among the numerous individuals and entities that own interests in the Alley. The Offering Plan fails to disclose this fact or explain that, without a written it will take a unanimous approval of all those with an interest in the Alley (including neighboring property owners) before any collective action can be taken, which will be extremely difficult to accomplish. For example, this effectively constrains the Condominium from maintaining the Alley itself.

3. While the New York City Department of Transportation has installed no standing signs throughout the Alley [they’ve since been removed], it is unclear how and whether the New York City Police Department will enforce parking and tow violators given that the Alley is a private street. Given its narrow width, only one car can traverse the Alley at a time and if the NYPD does not enforce rigorously, emergency vehicles will not be able to access the Condominium’s main entrance resulting in a significant safety issue. [Couldn’t emergency vehicles use the entrance on Broadway?] This fact was not disclosed in the Offering Plan.

4. The Budget included as Schedule B in the Offering Plan contains no line item or estimate of the cost to the Condominium of plowing or paying the Alley. [Snow shovels are maybe $30. I see an opportunity for a sign-up sheet!]

5. Even though the street has been damaged from the Sponsor’s construction, and the cobblestones are in need of repair, sidewalks are cracked and there are potholes in the street (see picture attached as Exhibit B), the Budget contains no provision for repairing, or replacing the Alley, nor did the Sponsor attempt to address physical maintenance issues in the Alley as part of its development of the Condominium.

6. The Budget includes no provision for the cost of an overnight security guard, which has necessary to protect the residents from unsavory activity that occurs in the Alley due to the lack of street lighting. [No mention of the ugly new streetlights the condo put up at its driveway.]

Attached to this letter are photographs of Franklin Place (see Exhibit B) as well as the sketch of the Alley contained in the sponsor’s offering materials (see Exhibit C). The actual Alley bears no resemblance to the Alley depicted in Exhibit C. [The renderings don’t represent reality?!?!?] Please note that the Condominium was a new construction project and the Alley was occupied by construction equipment, vehicles and fences so the prospective purchasers could not see the completed Alley before closing on their units; all they had to rely on was the Sponsor’s marketing materials, sketches in the sales office and representations made by the Sponsor’s sales and marketing agent, Cantor Pecorella. [A cursory look at Google Street View over the past six years shows that the alley was accessible for inspection the whole time.]

Sponsor’s glaring failures to properly disclose the risks associated with the Alley has resulted in (i) the significant diminution of value of the condominium units and (ii) significant impairment of the safety and quality of life of the residents.

And because of all that, instead of suing the developer, the condo buyers believe “the only viable and complete solution is to have the Alley mapped by the City of New York as a public street, with the City of New York thereby taking control of an responsibility for the alley.”

 

25 Comments

  1. what a spoiled perspective, looks pretty clear to me that they dont own or control the alley “non-exclusive easement for vehicular and pedestrian access” cant blame anyone for that but their own lawyers. shame on them. its only been that way for 200 years. how about using the broadway entrance for your baby strollers? even better how about a doorman on broadway. how about a security Guard for the golden crowns that were placed in the alley on inauguration day? so pathetic

  2. Maybe the unit owners should push to have the City condemn the street for public use under eminent domain. That is, after all, a proper use for eminent domain. The abutting owners would be compensated, but at something far less than the value of developable land, given the existing public easement and all the existing private easements that would prevent its development anyhow.

    The City would then have to install proper drainage and paving and signage.

    • You mean drainage for the runoff from your driveway? Maybe eminent domain the entire building of 5 franklin, so the tenants can move to Connecticut where fences make good neighbors!

      • Don’t falsely accuse me of being an owner at 5 Franklin Place and I won’t accuse you of (i) being the owner of 68 Franklin Street and (ii) only being interested in charging film crews $10,000. per day to shoot in the alley. That fee goes to $0 on a public street with City-issued film permits.

  3. All the wealthy people who bought there, along with their overpriced lawyers and real estate brokers, never considered this??

    • The fact that they set the building 30 feet back from the alley (to comply with zoning and create legal residential occupancy facing the alley) should have been a big, obvious, physical hint that this wasn’t a bonafide public street.

  4. To all the owners of 5 Franklin place because you made a bad investment and where not told about the possibility of this alley being controlled by the city go after the developer and make him pay to redo your main entrance you guys are crazy to evan want to have a rat infested entrance where homeless sleep and per and shit all hours of the day and night,stop crying and go after the builder who bought this building for 15 million dollars and made millions on you guys

    • I think the unit owners of 5 Franklin Place would be happy to have the alley condemned by eminent domain. They will all get paid for a piece of an alley they apparently thought was a public street anyhow; that is found money. The garage for 8 cars was legally approved by Department of Buildings and shows on the C of O; why would they lose access to a street being converted from a private street to a public street?

      Plus the street can be properly rebuilt, lighted, and kept free from private obstructions, scaffolding, etc. that encourage the negative conditions you describe.

    • Also, there is currently a legally-mandated study underway by NYC Department of Transportation to study private streets for taking by the City. Perhaps the unit owners of 5 Franklin Place should contact the DOT to make sure their private street is included in the study.

      See https://www.amny.com/transit/nyc-dot-survey-of-privately-owned-streets-could-end-in-takeover-1.13475993

      See also Local Law 52 of 2017:

      “The department of transportation shall conduct a study of private streets that are not within its jurisdiction. As part of such study, the department shall obtain from each borough president and from the department of city planning the locations of private streets in the city, to the extent such information is available, and shall review the factors that may be considered or necessary for the acquisition of built private streets. Upon completion of such study, and no later than June 30, 2018, the department shall issue a report on the study’s findings to the mayor and the speaker of the council. Such report shall include, but not be limited to, any locations of private streets in the city obtained from each borough president and the department of city planning pursuant to such study.”

  5. people who dont understand eminent domain, only see the view from where they are looking. its what you dont see or know that determines ownership. its whats under the alleyway, streets need to be 30 feet wide as well. the study is more about sidewalks in between property lines.

    • If the City can take whole blocks of buildings by eminent domain, they can take a couple of cellars under the private street, too.

    • The Zoning Resolution defines a street thusly:

      Street (2/2/11) A “street” is:

      (a) a way established on the City Map; or

      (b) a way designed or intended for general public use, connecting two ways established on the City Map, that:
      (1) performs the functions usually associated with a way established on the City Map;
      (2) is at least 50 feet in width throughout its entire length; and
      (3) is covenanted by its owner to remain open and unobstructed throughout the life of any #building# or #use# that depends thereon to satisfy any requirement of this Resolution; or

      (c) any other open area intended for general public use and providing a principal means of approach for vehicles or pedestrians from a way established on the City Map to a #building or other structure#, that:
      (1) performs the functions usually associated with a way established on the City Map;
      (2) is at least 50 feet in width throughout its entire length;
      (3) is approved by the City Planning Commission as a “street” to satisfy any requirement of this Resolution; and
      (4) is covenanted by its owner to remain open and unobstructed throughout the life of any #building# or #use# that depends thereon to satisfy any requirement of this Resolution; or

      (d) any other public way that on December 15, 1961, was performing the functions usually associated with a way established on the City Map; or

      (e) a #covered pedestrian space# that directly links two parallel or substantially parallel ways established on the City Map, for which a #floor area# bonus may be awarded or was awarded pursuant to a prior definition of such amenity, that may, by certification of the City Planning Commission, be deemed to be a #street#, provided the Commission finds that:
      (1) no portion of such space is located within 50 feet of the intersection of two ways established on the City Map;
      (2) such space is unobstructed for a minimum width of 15 feet and a minimum height of 15 feet, except for enclosures at the entrances;
      (3) such space is located at an elevation no more than five feet above or below #curb level#; and
      (4) the space functions as a #street# providing access to another #street#, shops and other #uses#, and that such access is graphically and visually evident to the pedestrian. All provisions of this Resolution shall continue to be applicable to such space without being modified, varied or affected by the qualification of such space as a #street#. The City Planning Commission may prescribe appropriate conditions and safeguards to achieve public utilization of the #street#.

      For purposes of paragraphs (a), (b), (c) and (d) of this definition, a #private road#, or a driveway that serves only to give vehicular access to an #accessory# parking or loading facility, or to allow vehicles to take on or discharge passengers at the entrance to a #building#, shall not be considered a #street#.

  6. For purposes of paragraphs (a), (b), (c) and (d) of this definition, a #private road#, or a driveway that serves only to give vehicular access to an #accessory# parking or loading facility, or to allow vehicles to take on or discharge passengers at the entrance to a #building#, shall not be considered a #street#.

    is at least 50 feet in width throughout its entire length; and

    • It is not a public street presently. The question is, would it comply with the rules if it were taken by eminent domain to be made a street?

      Given the facts that:
      – it has been mapped;
      – there is an existing, long- time public easement for emergency vehicles (who certainly can and may need to cross the alley without loading or unloading passengers); and,
      – the alley is over 150 years old;

      the City could certainly make a good argument that (a) or (d) apply and that the 50 feet minimum width does not apply.

      Perhaps the attorney for the unit owners at 5 Franklin Place should contact DOT investigatory committee and offer to cede their portion to the City in exchange for making it public in order to get the ball rolling here.

      • Your on quite the mission James, wonder where you live?
        Given the facts that:
        – it has been mapped
        AS Privately held forever
        – there is an existing, long- time public easement for emergencyvehicles (who certainly can and may need to cross the alley without loading or unloading passengers); and,
        -there is no way a emergency vehicle can turn into the alleyway because of its limited width

        How about use Broadway? for a broadway address

        • I still don’t live at #5 (or any other # on) Franklin Place, nor am I yet the sponsor. Further, all these addresses that avoid Broadway for marketing purposes, including 91 Leonard St and the new Cortlandt Alley development, all strike me as equally silly in their attempts to “class up the joint” via a small, narrow, or dirty alternative to a Broadway entrance.

          That said, it is certainly an interesting story.

  7. In April 1982 Franklin Place appeared in the NY Times as a location in the CBS Murders case. Ms. Margaret Barbera was murdered and her body was found at 5 A.M. by a dog walker in Franklin Place, a cobblestone alley between White and Franklin Streets. http://www.nytimes.com/1982/04/14/nyregion/4th-slaying-linked-to-3-on-west-side.html

  8. How is this for a summary – The developer knew the street was private and probably figured its was easier to ask for forgiveness than permission. Their ex-post facto attempts to make the street “public” is CYA BS. I like it the way it is.

  9. Much ado about nothing. This is not a private street and the owners of 5 Franklin have a great investment. How convenient to be able to drive onto Franklin alley and drop family, friends, pets and groceries off to then go park your vehicle somewhere else. A nice amenity but not private street to call your own. Your property values will not go down in any way. I am a broker and not once did anyone suggest to me or the office I worked in that it was a private street. We were told the developers were “trying.” What I look forward to is the wall of greenery that was going to be one of the lovely touches on the alley wall with the original developers.

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