Council Member Letitia James opposed vested right claim. On March 4, 2008, BSA allowed construction of a 16-story building at 163 Washington Avenue to move forward despite the fact that the building is out of compliance with the recently adopted Fort Greene- Clinton Hill Rezoning plan. The building will have community facility use on the first floor with residential use in the remainder of the building. It will also have a second- floor terrace, supported by 15 footings that are separate from the building’s foundation.
In May 2007, the Department of Buildings issued the owner a building permit. Two months later, the City adopted the Fort Greene-Clinton Hill Rezoning plan, which put the proposed building out of compliance with the maximum FAR of 1.93 and maximum height of six stories. Buildings issued a stop work order the same day the City rezoned the area. The owner then filed an appeal with BSA, and an application to renew its building permit and extend the time for completion.
Opposing the owner’s motions were Brooklyn Community Board 2, Council Member Letitia James, and Building Too Tall, a local neighborhood group. James argued that work continued at the site after the permitted hours of operation, the proposed building was not compatible with neighborhood character, and the foundation was incomplete because the owner did not dig holes for the terrace footings.
The owner conceded that some work was performed after hours, but claimed that it was a small portion of the overall work it performed on the foundation. The owner explained that the terrace footings require 13 cubic yards out of a total amount of 763 cubic yards for the entire foundation, and would not be dug until a later phase of construction in order to provide a staging area for the earlier phases of construction and to accommodate construction vehicles at the site. The owner also claimed that conforming the building to the new zoning would lead to financial loss because it would eliminate 21 percent of the floor area, including the more valuable upper floors, and require further architectural and engineering costs to reconfigure and redesign the building.
BSA agreed and ruled in the owner’s favor. While acknowledging that the community and elected officials worked diligently on the rezoning, BSA ruled that the owner had met the standards for both the appeal and the application and, therefore, could not be denied its property rights simply because of general community opposition.
BSA: 163 Washington Ave., Brooklyn (270-07-A, 204-07-BZY) (Mar. 4, 2008).