DOB wins appeal modifying C of O issued in error. Yeshiva Imrei Chaim Viznitz, located on 53rd Street in Boro Park, Brooklyn, operated a catering hall out of the basement of its three-story building containing its school and synagogue. The Department of Buildings applied to BSA to revoke the building’s 1999 certificate of occupancy. Buildings claimed that the certificate listed the catering use in error since the use was prohibited by the site’s residential zoning and was not a permitted non-conforming use. Buildings later requested that the C of O be amended to strike the catering use.
Yeshiva sued, winning an injunction to stop BSA from issuing a decision on the C of O until it had applied for a variance. It then filed a variance and an appeal to a Buildings’ decision, which determined that the use was not accessory to the school or synagogue. BSA denied both, finding that the catering hall, which operated seven days a week, hosted events for up to 500 people and advertised in local papers, could not be considered accessory, and Yeshiva failed to justify the variance request. 4 CityLand 6 (Feb. 15, 2007).
When the C of O issue returned to BSA, Yeshiva’s attorney Stuart Klein argued that the catering use was a permitted non-conforming use because it replaced a non-conforming auto repair shop.
Buildings’ attorney Angelina Martinez-Rubio countered that telephone records showed no business at the site from at least 1992 until 1997, and that a 1995 building inspection uncovered contractors excavating the site without a permit, proving no auto shop remained. Once an owner stops operating a non-conforming use for a continous period of two years, DOB considers the use abandoned and only allows permitted uses to occupy the site.
Yeshiva responded that when it originally filed in 1991 for a building permit for the school, it protected the non-conforming commercial status, and that Buildings purposely delayed the revocation of the C of O until it was too late to uncover records on the auto repair use. Due to this, it would be unfair for BSA to revoke the C of O.
BSA denied each of Yeshiva’s claims. BSA pointed out that Yeshiva’s 1991 permit application did not seek to continue the auto repair shop but sought to authorize a school. BSA also explained that the zoning text prohibits structural alterations to a non-conforming use except when made to accommodate a permitted use. Finally, BSA denied any equitable arguments, explaining that it lacked a court’s power to grant equitable relief. BSA ordered that the C of O remove any listing of the catering use.
BSA: 1824 53rd Street (54-05-A) (April 24, 2007) (Stuart A. Klein, for Yeshiva; Angelina Martinez-Rubio, for DOB). CITYADMIN