BSA found that project did not qualify as an enlargement. In 1999, BSA granted the owner of 155 Norfolk Street in Brooklyn a special permit to enlarge a one-story home. The enlargement was not built pursuant to the approved plans. More than three years later, the owner submitted a different set of plans to Buildings for an as-of-right enlargement and began construction. In 2005, after resolving a series of violations, the owner obtained an alteration permit from Buildings. In April 2006, Buildings issued a stop-work order after receiving complaints about construction at the site. Buildings later determined that the completed construction did not conform with either the 1999 special permit or the 2005-approved plans. The owner applied to BSA for a special permit to enlarge the building and legalize the completed construction.

BSA denied the application, stating that it was not authorized to issue the special permit because the construction was not an “enlargement” as defined by the zoning resolution. BSA cited evidence suggesting the majority of the original house had been demolished and found that the owner did not submit any evidence that the construction constituted an enlargement of an existing building. The owner filed an Article 78 petition challenging BSA’s determination, and the lower court granted the petition. The lower court ruled that BSA’s determination was arbitrary and capricious and ordered BSA to issue the special permit.

On appeal, the Second Department reversed and dismissed the challenge. The court ruled that Buildings’ issuance of the alteration permit did not prevent BSA from determining that the reconstruction of a mostly demolished building did not qualify as an enlargement under the zoning resolution.

Galvez v. Srinivasan, 2010 N.Y. Slip Op. 02559 (2nd Dep’t March 23, 2010) (Attorneys: Richard Lobel, for Galvez; Michael A. Cardozo, Francis F. Caputo, Dona B. Morris, Teresita V. Magsino, for BSA).