Architect self-certified applications with incorrect zoning. Architect David Nagan was hired in 2004 to prepare a zoning analysis for two adjacent lots in Queens. Nagan determined the lots were in an R3 district, which allowed for the construction of two, two-family semidetached homes with a common wall along the lot line. In April of 2005, the City Council rezoned the lots to R3X, a zoning district that prohibited semi-detached homes. About six months after the zoning change, Nagan submitted two self-certified applications to Buildings for permits to construct both semidetached homes. Buildings granted the applications, and construction was completed in 2006.

After Buildings performed an audit, it determined that the zoning designation for each application was incorrect and petitioned to have Nagan excluded from the self-certification program. The petition cited a recently enacted Administrative Code amendment that required mandatory sanctions against an architect who submitted two incorrect self-certified applications within a 12-month period. At his hearing, Nagan argued that the recently enacted amendment should not retroactively apply to the applications he submitted two years before the amendment was passed.

OATH ALJ Zorgniotti ruled that it was permissible to apply the amendment to Nagan’s earlier conduct. Nagan’s participation in the self-certification program was not a right, but rather a privilege subject to reasonable restrictions. Buildings’ petition to limit Nagan’s privileges in the future based on his two prior applications was not a retroactive application of the amendment because Buildings had the right to exclude Nagan from the program even before the amendment was passed. The amendment merely strengthened the rules relating to the self-certification program.

ALJ Zorgniotti recommended that Nagan be allowed to continue participating in the self-certification program, but be subjected to audits and monitoring for a period of one year. Excluding Nagan permanently from the program, the ALJ concluded, would be unfair and disproportionate to the unintentional errors he committed.

DOB v. Nagan, OATH Index No. 614/09 (Feb. 4, 2009). CITYADMIN