Permit invalidated; builder misrepresented project

Owner misrepresented extent of construction in order to avoid City Planning Commission review of plans. In November 2002, the owner of 366 Nugent Street in Staten Island received a pre-consideration letter from Borough Commissioner Jorge Canepa to enlarge an existing twostory home and replace and relocate existing square footage. The owner informed the borough commissioner that it sought the letter in order to avoid filing for a new building permit, which according to the underlying zoning, would necessitate the City Planning Commission’s approval. The owner did not present any building plans to Canepa when it requested the letter.


In March 2003, the owner then submitted the letter to Buildings along with building plans that included the complete demolition of the existing house and the construction of a new three-story home located on a different portion of the lot. Buildings later approved another application for an alteration permit describing the partial demolition and horizontal and vertical enlargement of the existing house. The owner then demolished the two-story house and began building a new three-story home.

In 2004, Buildings ruled that the owner should have obtained Commission approval because the work qualified as a new development, and it placed a hold on the owner’s permit. Buildings refused to renew the permit, and the owner appealed to BSA. During the appeals process, Buildings notified the owner that it intended to revoke the permit because the owner made misrepresentations in obtaining the alteration permit. BSA denied the appeal, finding that the owner had failed to obtain the Commission’s approval prior to building the new structure. The owner challenged BSA’s decision, and a lower court overturned the determination. The Second Department modified the lower court’s decision and sent the matter back to BSA. The court ruled that BSA neeeded to determine whether Buildings issued the permit in error based on alleged misrepresentations during the approval process.

At a June 15 hearing before BSA, the owner’s attorney, Adam Rothkrug, stated that the owner relied on Buildings’ established policy, in the form of the borough commissioner pre-consideration, to obtain an exception to the requirement of filing for a new building permit. The owner argued that it did not matter that the proposal was not accurately described in the letter or the alteration permit because the building plans established there would be a full demolition, and Buildings understood the owner’s intent to avoid the Commission’s review.

BSA denied the appeal, finding that the owner had misrepresented its plans to Buildings during the approval process. BSA stated that the only explanation for the different construction descriptions in the preconsideration letter, building plans, and the alteration permit application was error or misrepresentation. BSA found no evidence of error.

BSA: 366 Nugent Street, Staten Island (103-05-A) (July 13, 2010) (Adam Rothkrug, for owner).

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