BSA refuses to grandfather Brooklyn project

Developer relied on self-certified permit later found invalid. Based on a professionally certified application, Buildings issued Chaim Nussenzweig, of HMS Associates, a building permit on August 21, 2005 for a 38-unit, five-story building at 614 7th Avenue at 23rd Street in South Park Slope, Brooklyn. The next day, City Planning certified its plan to down-zone portions of South Park Slope, including Nussenzweig’s lot, thereby starting the land use review process and providing Nussenzweig about 200 days to grandfather the project.

Soon after excavation and foundation work began, Buildings initiated a special audit of the project that revealed potential violations of floor area, lot coverage, height limits, and several building code provisions, including sprinklers. Buildings issued a stop-work order, sent Nussenzweig a notice listing its objections, and outlined its intention to revoke the permit unless Nussenzweig responded. All work ceased on October 11th and Buildings revoked the permit after receiving no response.

Nussenzweig later filed a second new building permit application, which Buildings approved on November 15th. The next day, the City Council approved the rezoning of South Park Slope, down-zoning the project site. 2 CityLand 161 (Dec. 2005). The project exceeded the new zoning’s height limit by 18 feet and the floor area limit by over 10,000 sq.ft.

Nussenzweig applied to BSA to grandfather the project, arguing that he had fully completed the excavation and finished 86 percent of the foundation work before Buildings issued the stop-work order. Community members opposed the application, complaining that the project’s height would block the view of the Statue of Liberty from the Green-Wood Cemetery’s famous statue of Minerva.

Buildings, represented by Angelina Martinez-Rubio opposed, arguing that only valid permits can vest under the zoning text. Buildings argued that none of the work performed on the invalid, revoked permit should be considered when calculating substantial completion of the foundation. The project’s only valid permit was issued one day before the rezoning passed, which failed to provide sufficient time to complete excavation or foundation work.

Nussenzweig’s attorney, Peter Geis, responded that Buildings had reviewed outdated plans during its audit, and improperly revoked the permit. In support, Nussenzweig produced plans dated after Buildings issued the first permit which contained a Buildings’ stamp. Nussenzweig also alleged that Buildings lacked authority to issue a stop-work order without evidence of imminent peril to life or property, and that it based its decision on political criticism and press coverage rather than facts.

Buildings responded that it had no official record of the alleged amended plans. Since the second set of plans differed so greatly from the original, Buildings’ rules required Nussenzweig to professionally certify the plans, file the proper paperwork, and pay an amendment fee, none of which occurred.

BSA denied all of Nussenzweig’s arguments, ruling that the zoning resolution required a valid permit to grandfather a project. Reliance on the second set of plans was time-barred since the permit revocation by Buildings was a final decision that could have been appealed to BSA. Noting that Nussenzweig had presented the second plans late in the hearing process, BSA commented that, in light of how much was at stake, “it strains credulity” to believe that Nussenzweig would not have aggressively opposed the permit’s revocation from the beginning if he believed that it was based on the wrong plans.

BSA also ruled that there was no requirement that life or property be in imminent peril before Buildings could issue a stop-work order and noted that the developer’s claims that Buildings did not follow procedure and was swayed by politics, had no merit or proof.

BSA: 614 7th Avenue (353-05-BZY) (Sept. 12, 2006) (Peter Geis, Cozen O’Connor, for Nussenzweig; Angelina Martinez- Rubio, for DOB). CITYADMIN