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.

BSA agreed with Buildings, ruling that the developer lacked a validly-issued permit. The lower court and the First Department upheld BSA’s determination. 5 CityLand 128 (Sept. 15, 2008). The developer appealed.

When the case reached the Court of Appeals, the City requested a remand to BSA based on new information. The City conceded that Buildings, with BSA’s knowledge, had allowed other developers to correct noncompliant building plans after a zoning change. If the developer could, in fact, amend its plans to allow construction of a compliant building on the existing foundation, then BSA should have the opportunity to determine whether the developer could meet the requirements for a vested rights claim. The Court of Appeals agreed, directing the court to send the matter back to BSA.

GRA V LLC v. Srinivasan, 2009 N.Y. Slip Op. 04298 (N.Y. June 4, 2009) (Attorneys: Richard Lobel, for GRA V LLC; Michael Cardozo, Leonard J. Koerner, Stephen J. McGrath, Victoria Scalzo, for BSA).