Owner relied on C of O to defeat NOV

Owner had built non-conforming roofed terrace in one side yard and a roofed side-entrance porch in the other. Buildings approved plans for the construction of a residential building at 74 Amherst Street in Brooklyn. The approved plans showed a roofed terrace on the south side yard of the home and a roofed side-entrance porch on the north side. The home was built in 2004, Buildings inspectors signed off on the final construction, and the owner was issued a certificate of occupancy in 2005 which stated that the new building substantially conformed to the approved plans.

In 2009, an officer from Buildings saw the two side yard structures and issued the owner a notice of violation for having side yards not in conformity with the zoning resolution. An ALJ sustained the NOV after a hearing, finding that the porches were not in conformity with the zoning resolution and that Buildings’ approval of the work could not supersede the zoning resolution. The owner appealed to the Environmental Control Board, arguing that Buildings would not have issued the C of O if the final inspection had revealed zoning resolution violations.

The Board reversed the ALJ’s decision, ruling that the owner could rely on the C of O as proof that the building complied with all applicable laws. The Board explained that the C of O was binding on all agencies until set aside by the Board of Standards and Appeals or a court of competent jurisdiction.

NYC v. Marina Margulis, ECB Appeal No. 1000136 (June 24, 2010).

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