BSA Reinstates Construction Permit in Rezoned Area

Eric Palatnik testifies before the Board of Standards and Appeals. Image credit: BSA

Eric Palatnik testifies before the Board of Standards and Appeals. Image credit: BSA

The Board recognized the applicant’s right to complete construction had vested under the previous zoning scheme.  On March 31, 2015 the Board of Standards and Appeals voted to reinstate a construction permit for the applicant, 1016 East 13th Realty, LLC, to construct a five-story mixed commercial and residential building in Midwood, Brooklyn.  The building site is located at 1016 East 13th Street, and will feature eight dwelling units plus 2,178 square feet of community facility floor area.

On December 29, 2005 the Department of Buildings issued the applicant a construction permit authorizing construction of the proposed building.  However on April 5, 2006 the City Council adopted the Midwood Rezoning, which rezoned the construction site from C4-3 to R5.  As a result of the rezoning, the applicant’s proposed building was in violation of zoning regulations on total FAR, residential FAR, maximum street wall height, maximum building height, lot coverage, and side yards.  By the time the rezoning took effect, the applicant had constructed 100 percent of the foundations, all footings and foundation walls, and the elevator pit, at a cost of $296,408.  On June 16, 2014 the applicant requested a reinstatement of the permit, arguing it had acquired vested rights at common law to complete construction as designed.

A public hearing was held on February 10, 2015, with a further hearing on March 10.  Michael Vargas, project architect, testified the original construction design is the only way construction can proceed without the applicant incurring substantial financial loss.  Mr. Vargas demonstrated several different designs permitted under the new zoning designation and showed how each would result in a loss for the applicant.

On March 31, 2015 the Board voted 4-0 to grant the application and reinstate the permit for a four-year period.  In its final report the Board noted a common law vested right to continue construction after a change in zoning generally exists if the owner has undertaken substantial construction, has made substantial expenditures, and serious loss will result if the right to proceed under prior zoning is denied.  The Board found the completion of the foundation and the $296,408 spent to date to qualify as substantial, and agreed with the applicant’s testimony that to comply with the R5 district would result in serious economic loss.

BSA: 1016 East 13th Street, Brooklyn (140-14-A) (Mar. 31, 2015) (Eric Palatnik, P.C. for 1016 East 13th Realty, LLC, owner).

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

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