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…)