First Department recognized retroactive validation of a permit.  In 2005, the Board of Standards and Appeals denied recognition of GRA V, LLC’s common law vested right to perform work under a Department of Buildings permit on the grounds Buildings deemed the underlying permit invalid.  (See CityLand’s extensive previous coverage here.)  A common law vested right occurs when a developer performs substantial work in reliance that the underlying permit or zoning is valid.  In 2011, the Board recognized the common law vested right after Buildings indicated its policy to allow an applicant to make minor amendments to plans in order to retroactively validate permits.  Fort Independence Park Neighborhood Association brought an Article 78 petition challenging the Board’s 2011 grant, alleging the Board’s determination was arbitrary and capricious.

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City concedes new facts and requests remand; developer allowed to retroactively correct incorrectly issued permit. Developer GRA V LLC received excavation and foundation permits from Buildings for a proposed 63-unit apartment building. With about 85 percent of the foundation poured, the City downzoned the area, restricting development to one- and two-family houses.

The developer applied to BSA, claiming it had a common law vested right to complete construction based on its foundation permit. Buildings disagreed, explaining that it incorrectly accepted a Sanborn Map from the developer instead of the required licensed surveyor’s survey. This led Buildings to approve foundation plans that showed the proposed building 1.9 feet too close to the lot line. According to Buildings, this made the foundation permit invalid, eliminating any common law vested right claim. In response, the developer highlighted that the mistake impacted the foundation plans only and it could correct the plans when it received the full building permit. Buildings disagreed, telling BSA that the rezoning barred any revisions that failed to comply with the new zoning. (more…)

Bronx developer claimed non-compliance with zoning law was minimal and should not impede vesting of rights. Developer GRA V LLC applied for an excavation and foundation permit from the Department of Buildings for construction of a 63- unit apartment building in a neighborhood of one- and two-family buildings within the Bronx’s Van Cortlandt Village. Despite an Administrative Code requirement that permit applications be accompanied by a lot diagram survey prepared by a licensed surveyor, the developer only included a Sanborn map signed and stamped by its architect. Buildings accepted the Sanborn map in lieu of the survey, relying on the architect’s seal, and issued the foundation permit to the developer.

Aware that the City was in the process of downzoning the neighborhood to restrict development to one- or two-family buildings, the developer moved quickly with construction, completing excavation and 85 percent of the foundation by the day the City Council approved the rezoning. After Buildings issued a stop-work order, the developer filed a request to continue work, arguing that it had acquired a vested right to continue. While Buildings did not initially oppose the developer’s request, a survey submitted by neighbors showed the developer’s Sanborn map was inaccurate. The developer submitted its own survey, confirming that the Sanborn map inaccurately marked the adjacent building’s footprint, failing to show it was set back 1.9 feet from the street line. As a result, the developer’s proposed structure, bound by the “narrow streets” zoning requirement not to build any closer to the street line than the nearest adjacent building, pierced the setback area at three small points. Following the submission, Buildings denied the request. (more…)

Buildings made initial error in not issuing building permit. In 2003, Hamida Realty sought plan approval from the Department of Buildings for two, three-family homes on two adjacent lots that would share a foundation and a common wall. Buildings approved the plans, but Hamida waited over a year to apply for permits. When it applied, Buildings granted the permit for one building, but held the second permit, erroneously requiring Hamida to submit a site safety plan for the second building. Despite holding only one permit, Hamida started work on both buildings. Three weeks later, Hamida pointed out Buildings’ error and Buildings waived the requirement. Hamida, however, never finalized the second permit, and work continued illegally.

A month later, City Council down-zoned Hamida’s lots as part of a larger rezoning of Jamaica Hills, Queens, making both buildings non-conforming. Despite the downzoning, construction continued. Buildings then issued a permit for the second building despite the down-zoning. Four months after the down-zoning, Buildings issued a stop-work order on both buildings. (more…)

Developer failed to inform DOB of error and continued work without a permit. After the City voted to downzone Jamaica Hills, Queens, Hamida Realty applied to BSA, arguing that it had obtained a vested right to continue its development on two adjoining lots located at 87-30 and 87-32 167th Street, north of Hillside Avenue.

When purchased by Hamida in 2001, the two 30-foot lots were joined and contained a single home that Hamida demolished. Hamida then received approval to divide the lot and assign separate tax numbers and street addresses.

In 2003, the Department of Buildings approved Hamida’s plans for two, three-family semi-detached homes, one on each lot, sharing a common wall and foundation walls. Buildings provided Hamida with a list of required items needed before it would issue final permits. Among these, Buildings erroneously required Hamida to provide a site safety plan. In fact, only proposed structures greater than 15 stories triggered that requirement. (more…)