BSA found that project did not qualify as an enlargement. In 1999, BSA granted the owner of 155 Norfolk Street in Brooklyn a special permit to enlarge a one-story home. The enlargement was not built pursuant to the approved plans. More than three years later, the owner submitted a different set of plans to Buildings for an as-of-right enlargement and began construction. In 2005, after resolving a series of violations, the owner obtained an alteration permit from Buildings. In April 2006, Buildings issued a stop-work order after receiving complaints about construction at the site. Buildings later determined that the completed construction did not conform with either the 1999 special permit or the 2005-approved plans. The owner applied to BSA for a special permit to enlarge the building and legalize the completed construction.

BSA denied the application, stating that it was not authorized to issue the special permit because the construction was not an “enlargement” as defined by the zoning resolution. BSA cited evidence suggesting the majority of the original house had been demolished and found that the owner did not submit any evidence that the construction constituted an enlargement of an existing building. The owner filed an Article 78 petition challenging BSA’s determination, and the lower court granted the petition. The lower court ruled that BSA’s determination was arbitrary and capricious and ordered BSA to issue the special permit. (read more…)

Owners sought compensation for fixtures that were inconsistent with highest and best use of properties. The City acquired two parcels of land for its West Bushwick Urban Renewal project in Brooklyn. Each property owner sought compensation for trade fixtures, which primarily consisted of fencing, gating, paving, curb cuts, and a sidewalk for a parking lot. The City offered the owners an advance payment for the trade fixtures, but noted that if the land were to be developed to its highest and best use, the trade fixtures would have to be removed. The owners agreed with the City that the highest and best use of the properties was mixed commercial and residential use, and that such development would require the removal of the trade fixtures.

The City moved to dismiss each of the owners’ claims for compensation for the trade fixtures, arguing that it would not make sense to compensate the owners for trade fixtures that would have to be destroyed in order to develop the property to its highest and best use. The owners countered that the City was wrong to value the trade fixtures and land as if they were a single unit, and that the trade fixtures were compensable so long as they were used in connection with a business, intended to be permanent, and would lose substantial value if removed. The lower court granted the City’s motions, and the owners appealed. (read more…)

Court of Appeals ruled BSA abused discretion in granting variance. GAC Catering Inc. purchased a single-family home at the intersection of Otis Avenue and Hylan Boulevard in Staten Island across the street from its catering business. GAC demolished the house and applied to the BSA for a use variance to build a two-story commercial photography studio to be used in conjunction with GAC’s catering hall. GAC claimed that commercial uses predominated the area, and that it was unable to sell or lease the property as a residence due to heavy traffic on Hylan Boulevard. GAC submitted an economic feasibility study demonstrating that a development in conformity with the lot’s R3-2 zoning would not yield a reasonable rate of return.

BSA granted the variance, and a neighbor filed an Article 78 petition challenging BSA’s determination. A lower court ruled that GAC’s hardship was self-created based on its prior knowledge of the lot’s zoning and annulled the variance. It found nothing in the record to support BSA’s determination that GAC’s lot was unique in comparison to similarly sized, residentially developed adjacent lots. The court added that while the area’s mix of commercial and residential uses may indicate the unreasonableness of the current zoning, it did not prove the uniqueness of GAC’s lot. The City appealed. (read more…)