Variance denied to homeowner in legal trouble

Queens homeowner sought to legalize lot split to allow sale to proceed. Pei Yu Zhong proposed to split her 11,475-square-foot lot, containing a one-family house, garage and swimming pool, into two developable lots and construct a new home to replace the pool and garage. After receiving a preliminarytax lot from the Department of Finance and a subdivision approval from Buildings, Zhong applied for a new building permit in January 2003. While Buildings was completing its review, the City Council voted in June 2003 to down-zone Zhong’s lot, making the lot split impermissible. Despite this fact, Buildings mistakenly issued Zhong’s building permit; she started excavation and signed a contract to sell the existing house. When Buildings revoked the permit, Zhong tried to get out of her contract to sell the house, but the buyer sued and won. Zhong then applied to BSA for a variance to legalize her plan.

Zhong argued that the lot was unusually large for a single-family dwelling and the fact that it had been two lots prior to 1961 and was oddly developed, with the existing house built on the side of the lot, made the site unique. Since Zhong relied in good faith on Buildings’ erroneously issued permit, Zhong argued that the reliance entitled her to the variance. Lastly, Zhong claimed that the tentative lots became separate zoning lots when Buildings approved the subdivision application, making the non-conformity a grandfathered condition.

Borough President Helen Marshall, Community Board 8, State Assemblyman Mark S. Weprin, State Senator Frank Padavan, and the Holliswood Civic Association all opposed Zhong’s application.

BSA denied the variance, noting that a lot’s development history was irrelevant if it failed to relate to a condition of the land that constrained development. BSA added that a large lot could not be a cause for hardship, explaining that its size gave Zhong development options, such as increasing the size of the existing house. Uniqueness and hardship must relate to the land itself, not to the personal legal problems of the landowner.

BSA also rejected Zhong’s reliance argument, finding that Zhong, not Buildings, held the burden to ascertain the correct zoning and by failing to research the zoning, Zhong was not acting in good faith. BSA deferred to Buildings’ determination that a new zoning lot is formed when it issues a lawful new building permit, alteration permit or certificate of occupancy and denied Zhong’s argument.

BSA: 85-78 & 85-82 Santiago Street (286 & 287-04-BZ) (August 22, 2006) (Adam Rothkrug, Rothkrug, Rothkrug, & Spector LLP, for Zhong; Lisa M. Orrantia, for DOB). CITYADMIN

CITYLAND Comment: Zhong plans to file an article 78 petition challenging BSA’s decision.



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