BSA finds no ambiguity in zoning text. Developer 4175 Building Corp. filed permit applications to build two four-story, semi-detached buildings on the same residential zoning lot in the Elmhurst section of Queens. The developer proposed a community facility use in the buildings’ first floor and cellar, with residential uses on the floors above.

The Department of Buildings told the developer to revise its plans to conform with residential bulk regulations. The developer then submitted revised plans to Buildings, which it approved in November 2004.

After construction was complete, Buildings conducted a post-approval audit and changed its code interpretation, finding that the mixed-use buildings should conform with community facility, not residential, bulk regulations. Consequently, the code limited the buildings’ size to three stories, making the newly constructed buildings’ fourth story non-compliant. Buildings then informed the developer of its intent to revoke its approval.

In April 2007, Buildings revoked its approval. The developer appealed, arguing that the setback requirements cited by Buildings applied only to the community facility portion of a mixed-use building, not a building in its entirety. The developer further argued that to apply the community facility setbacks to a building only partially used for community facility purposes would unduly burden developers trying to abide by lot size, lot coverage, and yard requirements.

BSA disagreed and found no ambiguity in the plain language of the zoning text, which explicitly applies the community facility bulk requirement to mixed-use community facility/residential buildings. BSA also denied any vested rights argument based on Buildings’ originally- flawed interpretation, noting that vested rights claims must be based on a valid permit.

BSA: 41-30 and 41-34 75th Street (96- 07-A) (Sept. 11, 2007) (Sheldon Lobel, for 4175 Building Corp.; Janine Gaylard, for DOB). CITYADMIN