BSA allows construction despite rezoning

BSA rules that foundation work was sufficiently completed prior to rezoning. In June 2007, the Department of Buildings issued the owner of 74 Grand Avenue a permit to construct a five-story, 55,000-squarefoot residential building. The proposed building, to be located between Myrtle and Park Avenues in the Fort Greene section of Brooklyn, complied with the zoning requirements at the time. The next month, the City rezoned portions of Fort Greene from R6 to R6B, rendering the owner’s proposed building out-of- compliance with new height, floor area, and FAR restrictions. Buildings then determined that the proposed building’s foundation was not sufficiently complete to vest a right to continue construction.

In October 2007, the owner amended its plans under a postamendment approval to reflect a three-story building, which complied with the new zoning restrictions, and continued as-of-right construction under the amended plans. The owner then sought BSA approval to resurrect the original plans under a claim of vested rights, arguing that it had substantially completed the demolition, foundation, underpinning, and the shoring of the adjacent property before the City rezoned the area. The owner also claimed that it spent 82 percent of the projected costs for foundation work, approximately ten percent of the projected total cost, prior to the rezoning. Such costs, according to the owner, could not be recouped through a compliant building.

Council Members David Yassky and Letitia James supported the application. Buildings argued against it, however, stating that the original permit was superseded by the post-amendment approval. But when pressed by BSA, Buildings stated that it would not be against a claim of vested rights if it arose during the time of the original permit.

BSA ruled in favor of the owner, finding that a valid original permit and the work performed thereunder were the only relevant factors when considering a vested rights claim. Given the size of the 25,000-squarefoot site, BSA concluded that the owner completed a significant amount of work prior to the rezoning. BSA also found that the owner would not be able to recoup the costs already expended through a building constructed in compliance with the current zoning.

BSA: 74 Grand Ave., Brooklyn (64-08-A) (Apr. 15, 2008) (Fredrick A. Becker, for owner; Lisa Orrantia, for Buildings). CITYADMIN



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