Developer not required to submit a recorded easement or restrictive declaration ensuring rooftop access to adjoining buildings to meet open space requirements. A developer agreed to purchase 144 North 8th Street from Iqbal LLC and two affiliated entities, along with the unused development rights from Iqbal’s adjoining tax lot, to facilitate the construction of a 16-story mixed-use building in Williamsburg, Brooklyn. In order to meet open space requirements for the 16-story design, the developer needed access to the rooftops of the two existing buildings on Iqbal’s adjoining tax lot. Believing it would have acquired such access upon purchase, the developer applied for a Buildings permit to construct the 16-story building, and it was granted. Shortly thereafter, the property transaction closed, and the developer obtained title to 144 North 8th Street and the unused development rights from Iqbal’s tax lot.

A dispute subsequently arose between Iqbal and the developer, and Iqbal sued the developer, claiming, among other things, that the developer was not authorized to access the rooftops. The developer then counterclaimed for a declaratory judgment that it did have a right of access to the rooftops. After Iqbal filed the lawsuit, Buildings issued a Letter of Intent to revoke the permit, and requested an easement agreement between the parties granting access to the rooftops. No easement agreement was provided, and so Buildings issued a stop work order. The developer then submitted a revised zoning analysis showing a 10-story building, an alternative design that could be built if the developer was unable to use the rooftops. Based on the revised analysis, Buildings partially lifted the stop work order, and allowed construction of the lower ten-stories to proceed. With construction of the building underway, several residents and community organizations requested that the Brooklyn Borough Commissioner issue a final determination on the validity of the permit. The Commissioner found that the permit was valid, and the determination was appealed to BSA.

The opposition claimed that the permit was invalid because a “legal document,” such as a recorded easement or restrictive declaration, was required to ensure rooftop access prior to the granting of the permit. The opposition conceded that the zoning law provision it cited did not require submission of an easement, but claimed that the lack of a written easement violated Building’s Legal Policy and Procedure Notice 1/04. They also argued that since Buildings had requested a recorded easement in its Letter of Intent, an easement was now required to demonstrate compliance with the open space requirements. The opposition also claimed that the ongoing litigation over the right to access the rooftops prevented the developer from establishing compliance with the open space requirements, rendering the permit invalid.

BSA denied the opposition’s appeal, ruling that submission of an easement or restrictive declaration prior to the issuance of a building permit was not necessary. Though Buildings had requested proof of an easement, it was not required since providing such was merely an alternative means of compliance with open space requirements. BSA also ruled that the ongoing litigation between the developer and Iqbal was irrelevant because the lawfulness of the permit was dependent on the permit application’s compliance with the zoning law at the time of its issuance. BSA concluded that the developer’s submitted plans and the recorded zoning lot development agreement were sufficient to establish compliance with open space requirements of the zoning law at the time Buildings issued the permit.

BSA: 144 North 8th St. (34-08-A) (Dec. 9, 2008) (Kevin Christopher Shea, for appellants; Howard Hornstein, Peter Geis, for developer). CITYADMIN