Court affirmed power to overturn BSA even when it failed to consider all five variance factors. In 1999, George Pantelidis, owner of a townhouse in Manhattan’s Upper East Side, obtained a permit from the Department of Buildings to construct a glass-enclosed stairwell at the rear of his building. The stairwell allowed the Pantelidis family, who occupied the second and third floors of the five-story building, to move about their residence without using the public stairs.

In 2001, eighteen months after Pantelidis completed construction, a neighbor filed a petition opposing the stairwell’s construction to BSA. BSA sided with the neighbor and revoked Pantelidis’ permit.

Pantelidis then applied to BSA for a variance to allow the stairwell, which BSA denied. He then filed an article 78 petition, arguing that BSA’s denial was arbitrary since it failed to consider that he relied in good faith on a then-valid Buildings permit. The lower court agreed and ordered a fact-finding court-hearing rather than remanding the case to BSA. BSA appealed the court-ordered hearing to the First Department and ultimately lost. 2 CityLand 13 (Feb. 15, 2005).

When Pantelidis’ case returned to the lower court, the court agreed with Pantelidis, annulled BSA’s denial, and directed BSA to issue Pantelidis the variance. 3 CityLand 14 (Feb. 15, 2006).

BSA appealed, challenging the lower court’s power to order BSA to issue the variance to Pantelidis. BSA argued that the lower court could not resolve the issue of Pantelidis’ variance since BSA did not discuss two of the five factors to granting a variance in its initial denial.

The First Department disagreed with BSA, ruling that the record was sufficient to rule on Pantelidis’ entitlement to the variance. Moreover, Pantelidis’ situation did not require a degree of technical expertise that would compel the court to remand the matter to BSA for further consideration. The court emphasized that if it ruled differently, BSA could ensure a cycle of article 78 claims and remands to BSA by simply not addressing all five variance factors.

In re Pantelidis v. BSA, 2007 NY Slip Op. 6442 (1st Dep’t Aug. 16, 2007) (Michael A. Cardozo, Tahirih M. Sadrieh, for BSA; Paul Golden, for Pantelidis; Bruce H. Wiener, for neighbor).

CITYLAND Comment: The City plans to appeal this decision.