The Department of Buildings failed to appeal both relevant ALJ decisions. In 2006, the owner of 882 Sixth Avenue entered into a licensing agreement with Troystar Inc., a registered outdoor advertising company. The agreement allowed Troystar to install a sign on the facade of the owner’s building. Two years later, the Department of Buildings issued the owner eight NOVs, one for failing to register as an “outdoor advertising company” and seven for failing to comply with various advertising sign regulations. The owner challenged the NOVs before an ALJ, who issued two separate decisions that addressed four violations each. In the first decision, dated July 6, 2009, the ALJ found that the owner was not an outdoor advertising company. In the second decision, dated July 10, 2009, the ALJ sustained all four NOVs and ordered the owner to pay $800 per violation.

Buildings appealed the second decision to the Environmental Control Board, arguing that the owner was acting as an OAC and that, as such, the Board should impose the statutory penalty of $10,000 per NOV. The Board agreed with Buildings, reversed the ALJ, and imposed a $40,000 penalty on the owner.

On appeal, Justice Eileen A. Rakower granted the owner’s article 78 petition, finding the Board’s decision arbitrary and capricious. The Board should not have revisited the issue of whether the owner was an OAC; the first ALJ decision, which decided that the owner was not an OAC, was never appealed by Buildings. And because the time to appeal that first decision had passed, the decision was final and binding on the Board.

Rosen v. City of New York, 2011 N.Y. Slip Op. 31683U (N.Y. Cty. Sup. Ct. June 21, 2011) (Rakower, J.) (Attorneys: Phillip L. Billet, for owner; Michael A. Cardozo, for NYC).

Red Hook Chamber of Commerce sued BSA and City but failed to name owner. In 2003, BSA granted a use variance to 160 Imlay Real Estate LLC to convert a vacant six-story industrial building into 150 luxury condominiums. The Red Hook-Gowanus Chamber of Commerce then filed an Article 78 suit to annul the variance, but failed to include Imlay as a party within the allotted time.

The Supreme Court allowed the case to move forward without Imlay. 3 CityLand 97 (July 15, 2006). The court then ruled in favor of the Chamber, vacated the variance, and returned the matter to BSA to determine whether Imlay could earn a reasonable rate of return for the building under an M2-1 zoning designation. BSA appealed. (more…)

Proposal would permit Council by a majority vote to review variances and special permits. The City Council’s Land Use Committee heard public testimony on July 24, 2007 on Local Law Intro. 261 to amend the City Charter’s review procedures on BSA decisions. The amendment, sponsored by Council Member Tony Avella, would give the Council the power to review BSA variances and special permit decisions if a majority of the full Council votes to take review. As currently proposed, the amendment would not authorize the Council to review all BSA decisions; it would be limited to variances and special permits.

BSA is comprised of five May oral-appointed commissioners pursuant to the 1991 City Charter. Among other powers, BSA has the authority to modify or waive zoning regulations through variances and to grant special permits for uses that would otherwise violate zoning regulations. The zoning resolution dictates that BSA must ensure an applicant for a variance meets five findings supporting a conclusion that compliance with the zoning regulation is not possible. Since the 1989 Charter’s elimination of the Board of Estimate, the governmental body that previously could review BSA decisions, the only path available to challenge BSA’s decisions has been to go to court using an article 78 petition. The proposed amendment to the Charter would allow the Council to assess the sufficiency of the evidence used to support the five findings, and to modify or change the decision. (more…)

BSA legalized existing Queens homeless housing facility, but denied request to expand facility. In the 1980s, Homes for the Homeless, Inc. converted an abandoned hotel on Rockaway Boulevard near Kennedy Airport into a 259-bed homeless housing facility; a use which conflicted with the lot’s manufacturing zoning. Over 15 years later, Homes applied to BSA for variances to expand the facility for 91 additional homeless families and legalize the use. The expansion faced significant opposition.

BSA denied the expansion, but approved the use. Homes then challenged BSA’s denial of its expansion plans, arguing that it was arbitrary to conclude that Homes’ site and plans justified a use variance and not the expansion. The lower court agreed, ordering BSA to grant the variance. On appeal, the First Department sent the application back to BSA for reconsideration, noting that BSA failed to consistently explain how it differentiated between the two decisions. 3 CityLand 15 (Feb. 2006). (more…)

Preservation group opposes conversion and remodeling of Columbus Circle modernist building. The First Department has affirmed the lower court’s decisions on Landmark West’s challenge to EDC’s sale of Two Columbus Circle to the Museum of Arts and Design. 2 CityLand 141 (Oct. 15, 2005). The appellate court ruled that the group’s challenges to the legality of the Landmark Preservation Commission’s procedures were improperly raised for the first time on appeal. The court also rejected the group’s conspiracy and constitutional claims, finding that there was no evidence to show a scheme to undermine the group’s First Amendment right to petition the Commission. (more…)