Matter of 25-50 FLB LLC v SrinivasanAnnotate this Case
Decided on August 26, 2011
Supreme Court, Queens County
In the Matter of the Application of 25-50 FLB LLC, Petitioner,
Meenakshi Srinivasan, Chairperson, et al., Respondents.
Appearances of Counsel:
For the Petitioner: Rothkrug Rothkrug & Spector, LLP, by Simon H. Rothkrug, Esq., 55 Watermill Lane, Great Neck, New York 11021
For the Municipal Respondents: Michael Cardozo, Esq., Corporation Counsel, by Virginia Waters, Esq., Assistant Corporation Counsel, 100 Church St., New York, NY 10007
Charles J. Markey, J.
In this Article 78 proceeding, petitioner 25-50 FLB LLC seeks a judgment vacating the resolution of January 11, 2011 (the "resolution"), issued by respondent Board of Standards and Appeals of the City of New York ("BSA") and its members respondents Meenakshi Srinivasan, Christopher Collins, Dara Ottley-Brown, Susan M. Hinkson, and Eileen Montanez. The resolution denied petitioner's application and upheld the determination of respondent Department of Buildings of the City of New York ("DOB"), revoking an alteration on the grounds that the scope of the work was not provided in the drawings, as required by the Building Code, and that a permit for demolition of the home was required prior to the issuance of the alteration permit. [*2]
Petitioner 25-50 FLB LLC is the owner of real property located at 25-50 Francis Lewis Boulevard, Queens County, New York, Block 4915, Lot 16. The petitioner describes said property as an irregular corner lot, with 65.12 feet frontage on Francis Lewis Boulevard, by 141.54 feet frontage on 168th Street, with a total of 8,887.88 square feet in area. The petition states that the subject site is currently located within a C1-2(R4) and R2A zoning district, as a result of the North Flushing rezoning approved by the City Council on April 22, 2009; that, prior to the re-zoning, the subject property was zoned entirely C1-2(R4); and that the existing zoning lot was created pursuant to a simultaneous merger and subdivision of three tax lots.
The respondents state that petitioner is the owner of the real property known as Block 4915, Lot 16, and is also the owner of an adjacent lot, known as Lot 21 (166-43 26th Avenue), located at the southern portion of the site at the corner of 168th Street and 26th Avenue. The DOB and petitioner disagree as to whether a zoning lot merger of the two zoning lots has been effectuated.
It is undisputed that the northern portion of the site, located at the corner of Francis Lewis Boulevard and 168th Street is occupied by a two-story commercial building, and that the southern portion of the site, located at the corner of 168th Street and 26th Avenue is occupied by a two-story, one-family house, which formerly had a tenant. The site also has an existing parking lot.
I. The DOB Permit:
Petitioner proposed to construct a building that would combine the existing commercial building and a new apartment building. The two story commercial building would be retained for commercial and community facility uses, the existing one-family house would be demolished, and a new three-story eight unit residential building would be constructed on the site of the house. Even though the house would be demolished, since the existing commercial building and new apartment building would be joined, for the purposes of a building permit DOB considers the proposed building to be an "Alteration," a horizontal enlargement/addition to the commercial building, rather than a "New Building," (see, Building Code § 28-105.2).
On February 3, 2005, the property owner filed an application for an Alteration permit with the DOB, with respect to the existing commercial building located at Block 4915 Lot 16. This application and the accompanying plans did not show the existing house. On November 27, 2006, the DOB approved the plans and issued an alteration permit, allowing the proposed construction.
Petitioner alleges that its principal, Paul Rifino, met with area residents and locally elected officials who expressed concerns regarding the proposed commercial use along 26th Avenue, where the existing dwelling was located. Petitioner alleges that it amended its application and voluntarily agreed to limit construction on the 26th Avenue parcel to residential use, in conformity with the existing C1-2(R4) zoning district regulations. The [*3]application permit, as revised, was renewed several times.
At the time that the petitioner initially filed for the application permit, the entire property was located in a R4 zoning district within a C1-2 overlay. Following the New York City Council's adoption of the North Flushing Rezoning on April 22, 2009, the portion of the site where the house is located was rezoned from R4 to R2A, while the portion of the property where the commercial property is located remained in a R4 district within a C1-2 overlay. R2A districts are contextual districts intended to preserve low rise neighborhoods characterized by single family detached homes on lots of 40' x 100'. The new R2A zoning limits the portion of the property with the house to a single family detached home with a floor area ratio(FAR) of .05, while the portion of the lot within the R4 zoning with the C1-2 overlay permits commercial or residential development with a FAR of 1.0.
On March 27, 2009, the DOB issued a post approval amendment to the foundation plans. Petitioner, in view of the pending rezoning and in an effort to preserve its rights, began construction on March 27, 2009, by installing a fence and commencing excavation.On April 9, 2009, the petitioner pre-filed an application for the demolition of the house. The DOB contends that the demolition application remained incomplete because no plans for the demolition were submitted, a pre-demolition report was not filed, and the plan/work application did not indicate whether or not the job would be reviewed by a DOB plan examiner. In addition, no proof was submitted establishing that all gas, electric, water, and other utility lines were disconnected. The DOB, therefore, did not issue a permit for the demolition.
On April 1, 2009, the DOB issued a Notice of Violation and on April 6, 2009, the DOB issued an intent to revoke letter, based upon seven cited objections. Petitioner responded on April 14, 2009, and filed additional information with the DOB, and the DOB re-approved the plans on April 15, 2009.
The petitioner alleges that approximately one week prior to the April 22, 2009 effective date of the zoning changes, it completed the excavation, foundations, and a portion of the first floor walls. This work was performed without demolishing the residential structure. However, the foundations of the proposed enlargement were placed around the perimeter of the existing dwelling, and exterior walls were constructed.
Following the adoption of the North Flushing Rezoning, the DOB conducted an audit and issued a second notice of objections on April 23, 2009, stating as follows:
BC [Building Code] § 28-110.1 Secure approval to protect existing occupancy of one family dwelling as per BC28-118.1.
BC § 27-161...170 The approved plans do not show the nature and extent of existing conditions. The building does not comply with the approved plans. Comply with requirement for applications for building alteration permits.
BC 28-105.3 Secure demolition sign off prior to permit as per BC28-105.3 [*4]
On May 11, 2009, the petitioner filed its response, and, on June 15, 2009, the DOB denied petitioner's request for reconsideration. The DOB, in its comments on the reconsideration request, included the requirements that the property owner:
(1) show how the tenant of the house was protected from entering the yards that have been dug up for foundation walls;
(2) show the location of construction equipment on site; and
(3) correct the condition of new masonry walls with a height greater than eight feet while the building is occupied.
The DOB's denial of reconsideration also noted that alteration could not proceed until the building is demolished. The property owner responded that a demolition permit had been filed and paid for. The property owner, however, did not respond to the objections in full, or demonstrate that they had been cured.
In May 2009, petitioner filed a statutory vested rights application and a separate common law vested rights application with the BSA. A building permit vests, so that an owner may complete a structure under the zoning requirements in effect prior to the adoption of an amendment resulting in a more restrictive zoning requirement, either pursuant to statute or the common law. Section 11-331 of the Zoning Resolution of the City permits such vesting where a valid building permit has been issued and the foundation has been completed. Under the common law, such vesting is permitted where a valid building permit has been issued and there has been substantial construction work and obligations are assumed. The valid permit must be issued prior to the date of the zoning change. The petitioner's applications are still pending before the BSA.
On June 17, 2009, the DOB revoked the approval and Alteration permit as the planned construction did not comport with the amendment to the Zoning Resolution; the plans for the Alteration permit were not accurate as they failed to show the existing one-family house; and petitioner had failed to obtain a demolition approval and permit prior to the issuance of the Alteration permit. The DOB also issued a stop work order on June 17, 2009.
On June 23, 2010, the DOB Queens Borough Commissioner denied petitioner's renewed request for reconsideration of the April 23, 2009 objections so that petitioner could appeal the determination to the BSA.
II. The BSA Application:
On July 1, 2010, petitioner's counsel filed with the BSA an appeal of the DOB's June 23, 2010 denial of reconsideration of the April 23, 2009 objections. On August 2, 2010, the BSA sent a Notice of Comments to petitioner's counsel, and counsel' response was submitted on September 7, 2010. On August 31, 2010, the DOB filed its submission with the BSA in support of its determination
The North East Flushing Civic Association ("Civic Association"), representing approximately 150 families, wrote to the BSA in support of the DOB's determination, on August 30, 2010 and September 2, 2010. On September 6, 2010, the Civic Association sent [*5]copies of its testimony to the BSA for submission at its September 14, 2010 hearing. The BSA also received letters from a local elected official in support of the DOB's determination.The BSA held a hearing on this matter on September 14, 2010, at which time testimony was offered by counsel for petitioner, petitioner's architect, a representative from the DOB, counsel for the Civic Association, the president of the Civic Association, a member of the Civic Association, three elected officials, the president and vice president of the Auburndale Improvement Association, a neighborhood resident, and a women whose mother is a neighbor of the premises. Following the hearing, the BSA received numerous letters from petitioner's counsel, the Civic Association, and the DOB, with respect to petitioner's application.
The BSA held a public hearing on November 9, 2010, at which time petitioner's counsel, a representative of the DOB, the attorney for the Civic Association and its president testified. Following the public hearing, the BSA received letters from petitioner's counsel and the DOB. A site and neighborhood examination was conducted by BSA Chairperson Srinavasan, and Commissioners Hinkson, Montanez, and Ottley-Brown.
In the proceedings before the BSA, the property owner and the DOB addressed each of the objections raised by the DOB in its revocation of the Alteration permit as follows:
A. Objection 3: The Permit Sequence:
The property owner asserted that the DOB improperly and erroneously revoked the Alteration permit; that the permits were valid when issued and that the owner completed excavation and construction on foundations to the extent that vested rights to complete construction and obtain an amended certificate of occupancy were secured. The property owner asserted that neither the provisions of the 2008 Building Code, set forth in Section 28-105.3 of the Administrative Code of the City of New York, nor its predecessor Section 27-149 (1968 Building Code), mandates the order in which permits for a job must be issued and that nowhere in the Administrative Code or Technical Policy and Procedure Notice or Operations Policy and Procedure Notice catalog or other statement of DOB policy is there a condition that a demolition permit be obtained prior to the issuance of the alteration permit.The property owner's architect stated that the demolition of the existing home does not affect the proposed foundation and therefore demolition was not required prior to issuance of the Alteration permit. The property owner also stated that Section 28-105.3 of the Administrative Code does not set forth the order in which permits must be obtained for alteration and demolition and that it had not yet proceeded with the required demolition without a permit. The property owner asserted that alterations are often performed prior to or concurrent with demolition; that the foundations for the proposed enlargement are located around the perimeter of the house and that the house's presence did not prevent completion of excavation, foundations, and construction of portions of the first floor walls; and that in September 2009, the tenant vacated the home.
The property owner noted that the DOB did not issue violations pertaining to the safety of the home or the foundations, and did not issue violations for not completing [*6]demolition prior to the construction of the alteration. Finally, the property owner asserted that a demolition permit is only required prior to demolition and sign-off prior to issuance of the certificate of occupancy.
The DOB asserted that the alteration permit could not be considered to be validly issued prior to the rezoning given the fact that the proposed enlargement of the existing commercial building could not be constructed without the issuance of the demolition permit. The DOB stated that where an existing building will not be incorporated in a proposed enlargement, but rather will be fully demolished and where construction of the enlargement is physically impossible without demolition of an existing building, demolition plans must be approved and DOB must issue a demolition permit prior to the issuance of a permit for enlargement. The DOB noted that the job application was approved pursuant to the 1968 Building Code and, therefore, it should have cited Section 27-149 of the Administrative Code in its objections with respect to the requirement for separate work permits for several types of work cited in Section 27-148, including alteration and full demolition of buildings.
The DOB further stated that Section 28-105.3 of the Building Code, effective July 1, 2008 and Section 27-149 are substantively the same for the purposes of separate permits required under the facts presented, and, while it agreed with the property owner that the law is silent at to the sequence of issuing a demolition permit prior to an application permit, it asserted that a demolition permit is required prior to an alteration permit in instances where it would be physically impossible to complete construction without demolishing the existing building. The DOB asserted that, absent a demolition permit, the alteration permit issued to the property owner could not be valid, as a permit cannot authorize a building that is impossible to build. The DOB stated that it is necessary for the demolition permit to be issued prior to the alteration permit because, in the absence of such demolition approval and permit, the job applicant has no assurance or guarantee that the demolition of the building is legally permissible and could be approved by the DOB.
The DOB cited as an example that it would not issue a demolition permit in the event that the building is occupied or until all gas, electric, water, steam, and other utility supply lines are disconnected and approved by the respective utility companies and agencies, or that other specific conditions and safety measures are accounted for. Here, the DOB stated that the house must be demolished in order for the enlargement to be in compliance with all relevant regulations. Although the property owner filed a demolition application on April 9, 2009, the DOB stated that said application was incomplete as it did not include plans, and the plans that were filed did not reflect the existence of the house. Rather, the plans filed seemed to indicate a vacant zoning lot where the house exists.
The property owner, in response, asserted that the objections raised by the DOB could be resolved in a manner that would render the permit valid and allow for vesting under the prior zoning. The DOB, however, asserted that, where additional approvals are required prior to the issuance of a permit, the DOB considers the failure to obtain such approvals an incurable error after the permit lapses due to rezoning. The DOB stated that it considered [*7]the failure to obtain the demolition permit to be egregious in the subject case involving the construction of the proposed building around the perimeter of the occupied home.
The DOB, therefore, stated that the absence of a demolition approval and permit for the home, prior to the issuance of the alteration permit, was an incurable error which led to the revocation of said permit. The DOB asserted that it is not mandated by law to allow an applicant to amend plans in order to demonstrate compliance with zoning or construction code requirements after a change in zoning, and to allow applicants to cure such objections after a zoning change would render meaningless its authority to revoke permits under Administrative Code section 28-105.1.
B. Objection 2: The Existing Conditions
The property owner asserted that Administrative Code section 27-162 is unambiguous and does not set forth a requirement for showing existing conditions, only the proposed alteration work. It was further asserted that although the plans do not reflect the one-family home, the DOB was aware of the home's existence, as its inspectors made multiple site visits in April, 2009; the plans filed along with an application for the proposed subdivision of the zoning lot included a plot plan that reflected the existing home and the filing of the demolition application.
The DOB, in response, stated that it is the applicant's responsibility - - and not that of the agency - - to establish the existing conditions on the plans and the nature and extent of the proposed work associated with the application, pursuant to Administrative Code section 27-162. The DOB cited to multiple sections of the 1968 and 2008 Building Code which require the submission of plans that reflect the extent of the work proposed. The DOB further noted that the conditions of concern associated with the construction directly around the perimeter of the occupied house included the disconnection of utilities which could have been disturbed during construction, creating a dangerous condition; and that, if the plans filed with the Alteration permit application had shown the house, the DOB would have required approval of the demolition application and permit prior to approving the proposed enlargement.
The DOB stated that job application folder did not include a copy of the May 1, 2006 survey reflecting the existence of the home, and that this was only submitted to the DOB in mid-April 2009. The DOB concluded that the failure to reflect the existing site conditions, specifically the occupied home, was contrary to the Building Code and a significant omission that rendered the plans incomplete and created an incurable error after the rezoning.
C. Objection 1: Site Safety
The property owner argued that, in order to secure approval of to protect the existing occupied single-family home, its architect referred the DOB to plans approved on March 26, 2009, in connection with the fence application, and that the DOB's response reflected that the matter could be resolved through the DOB's administrative process. The property owner asserted that its architect was advised that the DOB would not conduct further review or provide further comment until a demolition permit had been secured and a vesting procedure [*8]completed. The property owner asserted that if there had been safety concerns, the DOB inspectors would have identified them during the site inspections.
The DOB asserts that the Application permit was not revoked based upon this objection, but that the site conditions, including the construction around the perimeter of the occupied home were egregious from construction and public safety perspectives.
The other opponents who appeared before the BSA in support of the DOB's position asserted that the Alteration permit should be revoked as the original building plans did not reflect the existing conditions and the demolition permit was not obtained prior to obtaining the Alteration permit. It was asserted that the Technical Policy and Procedure Notice 1/02 ("TPPN") requires that where a significant demolition is required, a pre-demolition inspection and demolition plans must accompany the alteration application, and that Operations Policy and Procedure Notice 24/87 ("OPPN") requires that whenever demolition interferes with the construction of a new building, demolition permits must be obtained prior to the issuance of a new building permit.
These opponents also contended that the DOB may revoke permits based upon misrepresentation, fraud, or where as here, permits were issued erroneously and should never have been issued. Finally, these opponents contended that the construction should be characterized as a new building, rather than an alteration, since the conditions that qualified it to be an enlargement - - the change in use in order to address the residential and commercial use of the same floor - - were not addressed until April, 2009. III. BSA'S RESOLUTION:
The BSA, in a Resolution adopted on January 11, 2011, denied the property owner's appeal. The Alteration permit was approved pursuant to the 1968 Building Code, while as noted by the BSA the final determination cites to provisions of the revised Building Code which was adopted on July 1, 2008. The parties, in the proceedings before the BSA discussed the relevant provisions of both codes.
The January 11, 2011 Resolution sets forth the following relevant provisions of the 1968 Building Code, as set forth in the Administrative Code:
Section 27-149 Separate permits required. Separate permits shall be required, as provided above, except that separate permits for foundations and earthwork, or for the installation and alteration of service equipment, other than fire suppression piping systems, shall not be required whenever plans for such work are included in and form a part of the plans for the construction of new buildings or the alteration of new buildings.
Section 27-161 General requirements. All applications for permits to alter existing buildings shall be subject to the requirements of articles nine and ten of thissubchapter and section 27-156 of article eleven of this subchapter.
Section 27-162 Plans required. All such applications shall be accompanied by such architectural, structural, and mechanical plans as may be necessary to indicate the nature and [*9]extent of the proposed alteration work and its compliance with the provision of this code and other applicable laws and regulations. To the extent necessary, all such applications and plans shall be subject to and shall comply with the requirements of sections 27-157, 27-158, and 27-159 of article eleven of this subchapter.
Section 27-157 Plans required. All such applications shall be accompanied by such architectural, structural, and mechanical plans which shall be complete and of sufficient clarity to indicate the entire nature and extent of the proposed construction work and its compliance with the provisions of this code and other applicable laws and regulations . . .
(a) Architectural plans shall contain at least the following data and information:
(1) Lot diagram showing compliance with the zoning resolution and indicating the size, height and location of the proposed construction and all existing structures and their distances from lot and street lines . . . The lot diagram shall be drawn in accordance with an accurate boundary survey, made by a licensed surveyor, which shall be attached to and form part of the diagram . . . .
The BSA Resolution also quoted the following provisions of the 2008 Building Code, as set forth in the Administrative Code:Section 28-105.1 General. It shall be unlawful to construct, enlarge, alter, repair, move, demolish, remove or change the use or occupancy of any building or structure in the city, or to erect, install, alter, repair or use or operate any sign or service equipment . . . or to cause any such work to be done unless and until a written permit therefore shall have been issued by the commissioner in accordance with the requirements of this code, subject to such exceptions and exemptions as may be provided in section 28-105.4.
Section 28-105.3 Separate permits required. Separate work permits shall be required, as provided above, except that separate permits for foundations and earthwork, or for the installation or alteration of air conditioning systems, ventilation systems, and heating systems shall not be required whenever such work is included in and forms a part of the construction documents filed for the construction of a new building or the alteration of a building or structure.
Section 28-105.4 Work exempt from permit. Exemptions from work permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code, the zoning resolution or any other law or rules enforced by the department. Such exemptions shall not relieve any owner of the obligation to comply with the requirements of or file with other city [*10]agencies.
The BSA stated that "the Administrative Code requires that job application plans include the existing conditions and (2) DOB has the jurisdiction to fill in the gaps, such as the sequencing of permits, when a particular practice is not described in the Administrative Code" and that it "recognizes the practical utility of requiring job applications to include existing conditions from the point of view of technical review as well as real safety-related concerns, which necessitates a transparent process; . . . that AC § 27-162 references AC § 27-157 which provides more detail about the requirement that the full nature of the work be described and shown on the plan, including the presence and dimensions of existing buildings."
The BSA noted "that the subject site conditions in which construction of a new building's foundation and portions of its first floor walls occurred around the perimeter of an existing occupied home are so unique that DOB policy did not anticipate it and, thus, no provision of the Administrative Code or policy notice is directly on point." The BSA asserted that "it is critical that the DOB have full knowledge of the actual circumstances of proposed construction, as set forth in a complete set of application documents, because sequencing, as contemplated in the related TPPN and OPPN may be warranted."
The BSA stated that it supported the "DOB's determination that permit sequencing was required and was a significant element of the construction process and a key public safety concern, which arises from the code requirement for existing conditions," and noted that "there is a correlation between the requirement for a demolition permit prior to the issuance of a New Building Permit and the requirement for a demolition permit prior to the issuance of an Alteration Permit in the subject case; in both scenarios, completion of construction would be impossible without the completion of demolition."
The BSA stated that it recognized "the distinction between these scenarios and a scenario where an alteration could be completed without demolition of an existing building on the site or construction and then relocation before demolition." The BSA noted that:
DOB has enumerated its safety-related concerns, including construction practices, utility disturbance, and the well-being of tenants within an occupied building intended for demolition, yet surrounded by a new foundation system and new exterior wall and that these concerns clearly fit within DOB's mandate and discretion to enforce; and, the Board agrees with DOB that there are policy concerns for requiring that existing conditions be reflected on the plans and that the demolition permit be obtained prior to the alteration permit. [*11]
The BSA, therefore, accepted the "DOB's jurisdiction and reasoning for requiring application drawings to reflect the existing conditions and to require the demolition permit prior to the issuance of the Alteration Permit in a case where it would be an impossibility to construct the enlargement without demolition."
IV. The Within Article 78 proceeding:
The petitioner commenced the within Article 78 proceeding on February 14, 2011, seeking a judgment vacating the BSA's determination of January 11, 2011 on the grounds that it is arbitrary and capricious, and contrary to the substantial evidence in the record. In its petition, the property owner alleges that the evidence in the record overwhelmingly confirms that DOB records and staff were aware of the multiple buildings for years prior to the revocation of the subject permit, including information in DOB's BIS database, a 2006 subdivision application that included proposing demolition of the building, multiple site visits by DOB staff, and a separate audit conducted three weeks prior to the audit that resulted in the permit revocation.
The petition alleges that amending the plans to note the existence of the home, and its proposed demolition, was a minor revision that could have been completed prior to permit revocation and the zoning change, and that the DOB could have raised this objection at any time during the numerous plan examinations, inspection visits, or the pre-zoning change audit of the file. The petition also alleges that, pursuant to the DOB's practice and procedure, this minor change to the plans could have been made after the rezoning, but that the property owner was not allowed to make such a change in this singular instance.
The petition further alleges that, despite the BSA's assertion, the DOB's ability to interpret relevant provisions of the law is not a grant of legislative power to the agency and would be ultra vires. The property owner, in its petition, alleges that the DOB failed to present any relevant statute or policy notice addressing the sequencing of permits, and that, absent a public policy notice, the DOB's position regarding permit sequencing came into being arbitrarily, long after plans were first approved and subsequently reviewed.
The petition further alleges that the property owner detrimentally relied upon the DOB's conduct in approving its plans; approving its plans after multiple reviews and audits; and its issuance of the April 1, 2009 objections which made no reference to the demolition and plans. The petitioner's architect was allegedly prevented from comporting with standard DOB policy that would have permitted a minor change to the plans prior to rezoning. The petition thus maintains and argues that the DOB and BSA are estopped from revoking the petitioner's permit.
Finally, the property owner alleges in the petition that the DOB's change in [*12]position regarding demolition requirements, incorrect code citations, and a change in position as it pertains to the appeal to the BSA demonstrates that no relevant policy pertaining to permit sequencing existed prior to the revocation of the subject permit, and claims regarding such a policy are probably the result of political pressure.
The BSA and the DOB, in opposition, assert that the determination of January 11, 2011, is neither arbitrary nor capricious, has a rational basis, and is supported by substantial basis in the record.
The BSA is comprised of experts in land use and planning and is the ultimate administrative authority charged with enforcing the New York City Zoning Resolution (see, Matter of Menachem Realty, Inc. v Srinivasan, 60 AD3d 854 [2nd Dept. 2009]; Matter of Mainstreet Makeover 2, Inc. v Srinivasan, 55 AD3d 910 [2nd Dept. 2008]). The BSA is empowered to entertain administrative appeals from certain DOB determinations applying provisions of the New York City Building Code and the New York City Zoning Resolution(New York City Charter §666; Zoning Resolution § 72-01[a]).
Judicial review of a determination by the BSA is limited to whether its determination was illegal, arbitrary, or an abuse of discretion, and whether it had a rational basis and is supported by evidence in the record (see, Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437 ; see also, Matter of Vomero v City of New York, 13 NY3d 840 , rev'g 54 AD3d 1045 [2nd Dept. 2008]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 ; Kettaneh v Board of Standards and Appeals, 85 AD3d 620 [1st Dept. 2011]; Russo v City of Albany Zoning Board, 78 AD3d 1277 [3rd Dept. 2010]).
It is well established that an agency is to be accorded wide deference in its interpretation of its own regulations and, to a lesser extent, in its construction of the governing statutory law, provided that such interpretation is not irrational or unreasonable (Matter of Gaines v Div. of Hous. and Community Rewewal, 90 NY2d 545, 548-549 ). The BSA's interpretation of the applicable building code provisions and the zoning resolution is entitled to deference, and this Court may not substitute its judgment for that of the zoning board, "even if the court might have decided the matter differently" (Matter of Toys "R" Us v Silva, 89 NY2d 411, 419 ; see also, Matter of SoHo Alliance v New York City Board of Standards and Appeals, 95 NY2d 437, supra; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539 ; Parkway Village Equities Corp. v Board of Standards and Appeals of the City of New York, 279 AD2d 299 [1st Dept. 2001]).
Questions of pure legal interpretation of statutory language, however, do not warrant judicial deference to administrative expertise (Matter of Toys "R" Us v Silva, 89 NY2d at 419), unless such language "is not altogether clear and unambiguous" (Beekman Hill Ass'n, Inc. v Chin, 274 AD2d 161 [1st Dept.], lv. to appeal denied, 95 NY2d 767 [*13], citing Matter of Bockis v Kayser, 112 AD2d 222, 223 [2nd Dept. 1985]). Courts will thus defer to an agency's construction where statutory language is "special or technical and does not consist of common words of clear import," or where it suffers from some "fundamental ambiguity" (Beekman Hill Assoc. v Chin, 274 AD2d 161, supra, citing Matter of Golf v New York State Dept. of Soc. Servs., 91 NY2d 656, 667 and New York State Ass'n of Life Underwriters, Inc. v New York State Banking Dept., 83 NY2d 353, 360 ).
The relevant provisions of the 1968 Building Code and the 2008 Building Code are silent as to the sequencing of permits. Petitioner acknowledges that, in order to alter and enlarge the existing commercial structure, it is necessary demolish the existing one-family house, and that a separate application and demolition permit would be required. The evidence in the record establishes that petitioner pre-filed for a demolition permit on April 9, 2009. The pre-demolition application, however, did not include plans, and the house could not have been demolished prior to the April 2009 zoning change, as it remained occupied until September 2009.
Respondents concede that the DOB's initial objection requiring a demolition sign-off was incorrect, and that this objection should have read demolition approval and permit was required. This error, however, is not - - as petitioner contends - - evidence of a lack of an agency policy or a change of position. The DOB was entitled to correct its errors and was not required to perpetuate such errors in the proceeding before the DOB. Petitioner's argument, moreover, that the BSA's determination was the product of political and community pressure is speculation, unsupported by the evidence in the record.
Given the unusual circumstances presented here, this Court finds that the BSA properly determined that the DOB has the authority to address gaps in the Building Code. As noted by the BSA, the TPPN and the OPPN, cited in its resolution, demonstrates that the DOB considers specific conditions not addressed by the Building Code, and issues notices reflecting its official policy. In the present case, the proposed construction scenario - - the alteration of an existing structure requiring the demolition of another occupied existing structure - - had not been previously addressed by the DOB.
However, as it would be physically impossible to complete construction of the altered building, without demolishing the one-family house, the BSA determination that the DOB had the authority to require the property owner to obtain a demolition permit, in the first instance, is neither arbitrary not capricious. The sequencing of the permits in this manner would also ensure that the one-family house would be vacated and its utility connections shut off, prior to starting the construction.
The Court, therefore, finds that the BSA properly determined that the alteration permit was not valid, as it cannot authorize the alteration of a building that is impossible to complete, absent the demolition of the one-family house. [*14]
The petitioner's narrow reading of Administrative Code section 27-162, in support of its claim that it was only required to indicate on its plans the proposed alteration work, and, therefore, did not have to include the existing residential building it intends to demolish, is rejected. This section specifically requires that the plans "indicate the nature and extent of the proposed alteration work" and provides that all such plans are required to "comply with the requirements of sections 27-157 . . ." Section 27-157 requires that a lot diagram must show "all existing structures on the zoning lot."
It is undisputed that the original building plans submitted by the property owner in February 2005, however, did not identify the one-family house located on the property. The application also failed to acknowledge that said house would have to be demolished in order to complete the altered structure.
The Court, therefore, finds that the BSA properly determined that the petitioner, pursuant to the relevant and unambiguous provisions of the Building Code, was required to submit accurate plans, showing all existing buildings, in connection with its application for the alteration permit.
The Court further finds that the BSA properly determined that it is the applicant's responsibility, at the outset, to submit a clear and complete application, and that the DOB examiner is not required to piece together an array of documents submitted at various times, for various purposes, in order to comprehend what exists and is proposed at a particular site. The permit application file contains the materials relied upon the property owner, the DOB examiners, and the public, with respect to the proposed construction. The fact that some individuals at the DOB may have gained knowledge of the existence of the residential structure, cannot serve to correct a deficient application.
Finally, petitioner's claim of estoppel is rejected. A municipality "is not estopped from enforcing its zoning laws either by the issuance of a building permit or by laches" (Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282, cert denied, 488 US 801 , quoting City of Yonkers v Rentways, Inc., 304 NY 499 ), and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results (see, Matter of Parkview Assoc. v City of New York, 71 NY2d 274, supra; Matter of Galvez v Srinivasan, 71 AD3d 1019 [2nd Dept. 2010]; Lyublinskiy v Srinivasan, 65 AD3d 1237 [2nd Dept. 2009]; see, e.g., Eugene Racanelli, Inc. v Incorporated Village of Babylon, 2010 WL 3358688, 2010 NY Slip Op 32210(U) [Sup Ct Suffolk County 2010].
In view of the foregoing, the petitioner's request to vacate the BSA's resolution of January 11, 2011, is denied, and the petition is denied.
Settle judgment. [*15]
Dated: August 26, 2011