Appellate Court Upholds BSA Decision on Illegal Penthouse

339 West 29th Street, Manhattan. Image credit: Picsora

339 West 29th Street, Manhattan. Image credit: Picsora

Board was not acting arbitrarily by requiring LPC approval of construction permit for addition to a historic district building.  On February 12, 2013, the Board of Standards and Appeals found they could not reinstate a Department of Buildings construction permit for Petitioner, 339 West 29th Street LLC without prior approval from the Landmarks Preservation Commission.  The Board found the permit was revoked in July 2009, and in October 2009 the area containing the work site was designated the Lamartine Historic District.

The Board found the original permit could be reinstated, but not without first going through the LPC approval process as the area was now a historic district.  The LLC petitioned to annul the Board’s decision and reinstate the permit.  On August 8, 2013 Justice Eileen A. Rakower, Supreme Court New York County, dismissed the petition and granted the City’s motion for summary judgment.

Petitioner appealed, arguing the Board’s decision was arbitrary and capricious.  Petitioner also argued the vested rights doctrine applied because of work already completed before the original permit was revoked.

On appeal. First Department upheld the lower court’s ruling.  The court held because the permit was revoked prior to the designation of the historic district, Petitioner was required to obtain LPC approval before a new or reinstated construction permit could be granted.  The court rejected the vested rights claim, holding work must be performed while relying on a valid permit for a vested rights analysis to apply, and Petitioner had continued work after the permit had been revoked.

339 West 29th Street LLC v. City of New York, 125 A.D.3d 557 (1st Dep’t Feb. 24, 2015) (Attorneys: Marvin B. Mitzer, for 339 West 29th Street LLC; Zachary W. Carter, Drake Colley for City; Jack L. Lester, for Friends of Hopper-Gibbons Underground Railroad Site and Lamartine Place Historic District).

By:  Michael Twomey (Michael is the CityLaw Fellow and a New York Law School graduate, Class of 2014)

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