Developer failed to inform DOB of error and continued work without a permit. After the City voted to downzone Jamaica Hills, Queens, Hamida Realty applied to BSA, arguing that it had obtained a vested right to continue its development on two adjoining lots located at 87-30 and 87-32 167th Street, north of Hillside Avenue.
When purchased by Hamida in 2001, the two 30-foot lots were joined and contained a single home that Hamida demolished. Hamida then received approval to divide the lot and assign separate tax numbers and street addresses.
In 2003, the Department of Buildings approved Hamida’s plans for two, three-family semi-detached homes, one on each lot, sharing a common wall and foundation walls. Buildings provided Hamida with a list of required items needed before it would issue final permits. Among these, Buildings erroneously required Hamida to provide a site safety plan. In fact, only proposed structures greater than 15 stories triggered that requirement.
A year later, Buildings issued the permit for the southern building but held the permit for the northern building, waiting for the site safety plan. Hamida failed to mention the error and started construction on the foundation for both lots without the second permit. Three weeks later, Hamida notified Buildings of the error and Buildings removed the requirement, but Hamida failed to submit a final copy of the permit application. Work continued without a permit.
In October 2004, the City, as part of the rezoning of Jamaica Hills, down-zoned the site to restrict construction to single- or two-family homes. Despite that, Hamida received the second permit from Buildings. Five months after the down-zoning, Buildings issued a stop-work order.
Hamida appealed to BSA, arguing that Buildings had no authority to delay the second permit and it did so just to obstruct the project. As a consequence, BSA should consider the construction work as if Buildings issued both permits together. Hamida also argued that the work qualified as a “single integrated project” under state case law, which allowed work to vest without a permit if: the City issued a permit for a fundamental portion of the project, it knew about the whole project, the developer would suffer economic loss, and no overriding public concerns existed. Finally, Hamida argued that the work should vest as a matter of fairness.
Although Community Board 8 and Council Member James F. Gennaro recommended approval of Hamida’s appeal, the Queens Civic Congress and State Assembly Member Brian M. McLaughlin opposed.
BSA rejected Hamida’s arguments. It affirmed that a valid permit is a fundamental requirement of vesting, finding that Buildings’ mistake in requesting the site safely plan was merely a clerical error and Hamida had ample time to rectify the error. BSA also rejected Hamida’s single integrated project argument, noting that the theory applies only to large-scale, multi-stage development estates where obtaining permits for each building would not make sense. Hamida never envisioned constructing its small project in stages and in fact attempted to get both permits concurrently. Plan was merely a clerical error and Hamida had ample time to rectify the error. BSA also rejected Hamida’s single integrated project argument, noting that the theory applies only to large-scale, multi-stage development estates where obtaining permits for each building would not make sense. Hamida never envisioned constructing its small project in stages and in fact attempted to get both permits concurrently.
BSA: 87-30 and 87-32 167th Street (364- 05-A; 365-05-A) (Sept. 19, 2006) (Sheldon Lobel, for Hamida; Janine Gaylord, for DOB). CITYADMIN