Staten Island residential developer denied certification. Salvatore Culotta wanted to build 12 dwelling units in six detached residences on property he owned in the Special South Richmond Development District, a special zoning district created by the City in 1977. Before applying to Buildings for a permit, however, Culotta was required to apply to City Planning for a certification that there was sufficient school capacity to accommodate the expected increase in school children. When Culotta filed for certification in 2004, City Planning withheld it because the property had an outstanding Buildings violation for the alleged unauthorized removal of a tree.

Culotta filed an article 78 petition to compel City Planning to issue the certification. Justice Eric N. Vitaliano dismissed the petition, finding that, under the Zoning Resolution, City Planning could adopt reasonable guidelines for issuing certifications and that its policy of withholding certificates from a developer with outstanding violations was reasonable. The outstanding Buildings violation would prevent the project from proceeding and issuing a certificate would only serve to hold up school seats that may otherwise be used for other project developments.

In an alternate holding, which was never briefed to the court, Justice Vitaliano found that the school seating certification provisions of the Special South Richmond Zoning Resolution, unchanged since 1977, did not reflect the fact that in 2002 the Board of Education was stripped of all of its executive powers and school certifications were not one of its listed remaining functions. City Planning could not lawfully issue a certification to Culotta, unless the Zoning Resolution was amended to assign responsibility for assessing school capacity to the newly created Department of Education.

Culotta v. Dep’t of City Planning, 2004 N.Y. Misc. LEXIS 1574 (Sept. 29, 2004) (Richmond Cty.Sup.Ct.) (Vitaliano, J.) (Michael A. Cardozo, Ave Maria Brennan, for City Planning).

CITYLAND Comment: The City’s position is that the changes to the education law do not affect City Planning’s ability to issue a certificate. The Department of Capacity Planning and Utilization under the School Construction Authority will continue to provide City Planning with the necessary information in order to issue certifications. The City does not plan to appeal the decision.