Good faith reliance overcomes BSA’s denial of variance

Owner built glass-enclosed stairwell after receiving approval from Buildings and Landmarks. In 1999, George Pantelidis, owner of a four-story townhouse at 116 East 73rd Street in Manhattan’s Upper East Side Historic District, obtained a Buildings permit to build a glass-enclosed stairwell in the rear yard of the townhouse. The stairwell allowed the Pantelidis family, who resided on the first two floors, to go from one floor to another without using the public stairs. Prior to construction, Pantelidis also obtained the required approvals from Community Board 8 and Landmarks. In 2001, eighteen months after the $200,000 stairwell was completed, neighbors challenged the issuance of the permit by asking Buildings to update the permit, which is common practice. Although Buildings updated without any changes and affirmed the permit, the update allowed the neighbors to appeal to BSA.

BSA granted the neighbor’s appeal and revoked the permit, finding that the glass-enclosed stairwell was taller than the 14-foot limit in the zoning resolution for “greenhouses” and, although the permit referred to it as a greenhouse, it did not meet the definition for one. BSA also found that the stairwell further decreased the building’s compliance with the rear yard limits.

Pantelidis filed an article 78 petition to annul BSA’s revocation. After it was denied, Pantelidis applied for a variance to legalize the stairwell. BSA denied the variance, finding that Pantelidis had failed to demonstrate the five findings required for a variance. Pantelidis filed a second article 78 petition to annul BSA’s decision. The lower court ruled that it could not decide whether BSA’s determination was arbitrary or capricious without looking at the issue of good faith. The court ordered a hearing to determine whether Pantelidis acted in good faith when he relied on Buildings’ permit approval. The court found that BSA’s strict application of the zoning resolution’s five-finding test alone was not appropriate in a case where there was good-faith reliance on a permit.

BSA appealed, claiming that the lower court should have sent the good-faith issue back to BSA. The First Department disagreed and affirmed the lower court, finding that the issue of good faith was relevant to determining if Pantelidis was entitled to a variance and that BSA was not excused from inquiring into the circumstances under which Buildings issued the permit. Retention by the lower court of the good-faith issue was also appropriate in light of BSA’s failure to consider the issue.

In re Pantelidis v. BSA, NY Slip Op 09420, Dec. 21, 2001 (1st Dep’t) (Attorneys: Janice Cahalane, for Pantelidis; Michael A. Cardozo, Tahirih M. Sadrieh, for BSA; Howard Hornstein, for neighbors); BSA: 116 East 73rd Street (43-02- BZ) (January 14, 2003); BSA: 116 East 73rd Street (31-01-A) (April 24, 2001). CITYADMIN

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