Two Brooklyn developments grandfathered

BSA extends time to complete construction based on common law, not the zoning code. Brooklyn’s South Park Slope neighborhood was rezoned in November 2005 to prevent out-of-scale development, forcing some developers to stop work on projects that no longer conformed to the new zoning. 2 CityLand 161 (Dec. 2005). Two developers in South Park Slope, with projects at 639 Sixth Avenue and 400 15th Street, requested permission to extend their construction time, filing two applications each: one based on the zoning resolution’s provision for extending construction time and a second on common law vested rights.

The owners of 400 15th Street argued that construction of a proposed five-story, 7,035-square-foot residential building was delayed due to poor soil conditions and unstable foundations in adjacent buildings, which resulted in a redesign as well as a lawsuit with a neighbor. The owners also argued that compliance with the new zoning would result in serious economic loss due to reduced floor space, less marketable units, and wasted construction costs. Finally, the owners argued that they had completed substantial work, including demolition, land clearing and excavation, and would lose $577,492 in costs.

The owners of 639 Sixth Avenue argued that excavation of a planned 7,035-square-foot six-story residential building was delayed due to several Buildings stop-work orders and the need to build foundation support for the adjacent building. They also argued that they had completed substantial work, spent or obligated themselves to $1.47 million, and would face serious economic loss.

At a March 29, 2006 special hearing, testimony was heard regarding the two properties. Community Board 7 described the applications as a “last ditch effort to exploit vesting rights” and argued that Buildings failed to enforce stop-work orders and was unresponsive to 311 calls, resulting in illegal work by the developers. A representative from the Municipal Art Society urged BSA not to undermine the rezoning and reward “illegal, unpermitted work.” Council Member and Zoning & Franchises Subcommittee Chair Tony Avella asked BSA to refuse the application. Avella noted that while he did not represent South Park Slope, he recognized that his Subcommittee’s efforts to rezone the outer boroughs have made vesting rights and illegal work paramount issues. Avella argued that vesting should be allowed only when a developer attempted to take proper steps. Avella also alluded to his moratorium bill and the need for a mechanism by which the community can report illegal work.

Other elected officials and community organizations testified against the applications, including Council Member Sara Gonzalez, Senator Velmanette Montgomery, Assemblyman James Brennan, Public Advocate Betsy Gotbaum, Concerned Citizens of Greenwood Heights, and the South Slope Community Group.

After three public hearings, a site inspection, and review of supporting documentation, BSA determined that neither project had completed excavation or made substantial progress to warrant extended construction time based on the zoning code. BSA noted that the developers’ construction difficulties were common in New York City and did not constitute extraordinary circumstances.

However, BSA determined that both developers completed sufficient work, made significant expenditures, and would suffer serious losses if not allowed to continue. BSA approved the applications based on common law vested rights, effectively grandfathering the projects under the old zoning rules.

BSA: 639 Sixth Avenue (362-05-BZY, 367-05-A); 400 15th Street (360-05-BZY, 368-05-A) (June 20, 2006) (Greenberg Traurig, LLP, for both applicants; Angelina Martinez-Rubio, for DOB). CITYADMIN

CITYLAND Note: Four other applications to extend construction time were considered at the March 29, 2006 special hearing (Case Nos. 350-05-BZY, 353-05-BZY, 354-05- BZY, 355-05-BZY). As of publication, BSA has not yet issued decisions on these applications.

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