Opinion
80022/06.
Decided November 17, 2006.
This is an application to set aside the determination of the respondent Board of Standards and Appeals of the City of New York (BSA), pursuant to CPLR article 78, in which petitioner challenges the final determination of BSA. Upholding the decision of the Staten Island Borough Commissioner of the Department of Buildings of the City of New York ("DOB") who refused to remove the "HOLD" status placed on petitioner's building permit.
Background
In November 2002, petitioner had sought and received DOB approval for its Pre-Consideration Request to "enlarge the existing [two-story] house [on the subject premises] and to replace and relocate the existing square footage so as to be in compliance with existing zoning and to upgrade the [building's] structural integrity." Upon receiving approval, petitioner filed an Alteration Permit Application for the "horizontal and vertical enlargement" of the existing building. The permit was issued on March 4, 2003.
Subsequent thereto, and at some point prior to May 18, 2004, petitioners demolished the existing structure, leveled an existing steep slope on the property, constructed a 130-foot by 15-foot retaining wall along the property line, and began construction of a new three-story building on a previously undeveloped portion of the lot.
On May 18, 2004, following an inspection of the premises, DOB issued a Notice of Violation and Hearing which alleged that the work was being done without a demolition permit in violation of Section 27-147 of the Administrative Code of the City of New York. The Notice stated, inter alia, that the work in progress, including the demolition of the pre-existing house and the construction of the new building, did not comply with the previously-approved alteration permit.
On June 9, 2004, DOB made an independent determination that petitioner should have sought a new building permit, together with the necessary City Planning Commission review, rather than the alteration permit for which it had applied. Based on that finding, it placed a "HOLD" on the original building permit.
On October 13, 2004, the Environmental Control Board dismissed the Notice of Violation, after an Administrative Law Judge found that the DOB's approval of the Pre-Consideration Application in 2002 obviated the need for a demolition permit.
Petitioner then sought a determination from the City Planning Commission's Department of City Planning that the retaining wall it had constructed was neither a "site alteration" nor a "development" requiring a Restoration Plan pursuant to the city zoning regulations. However, the Department of City Planning determined that CPC approval had been required and that petitioner should have obtained a Restoration Plan before constructing the retaining wall.
In response, petitioner sought to vacate the construction "HOLD" and reinstate the building permit. Upon review by the Acting Borough Commissioner, DOB denied the request on the ground that a CPC Restoration Plan was required and that the initial issuance of the Alteration Permit had been based on petitioner's misrepresentations in its Pre-Consideration Application.
Following a hearing before the respondent Board of Standards and Appeals, BSA denied petitioner's appeal of the Borough Commissioner's determination, finding, inter alia, that
Pre-Consideration approval had been obtained based upon petitioner's misrepresentation as to the nature and scope of the proposed work, allowing the application to be filed as an alteration rather than as new construction;
Construction of a dwelling with its own foundation on a portion of the lot previously unoccupied could not be characterized as an alteration of an existing building, especially where the existing building was located on another portion of the lot and had been completely demolished;
The retaining wall is a "structure" within the meaning of the Building Code and required CPC review and approval; and
Both the new dwelling and the retaining wall were "developments" within the meaning of the Building Code and required CPC approval prior to beginning construction.
Based on the foregoing findings, BSA concluded that (1) DOB's application of the relevant Code definitions to the construction of the dwelling and wall at the premises was correct; and (2) the refusal to lift the "HOLD," approve the Application and reinstate the Permit was an appropriate exercise of its jurisdiction based upon petitioner's failure to submit the proposal to CPC.
Discussion
By respondent's own view of the history of the relevant facts, an "alteration" permit, as opposed to a "new building" permit, was required for an enlargement of the structure, defined in the Zoning Resolution as "an addition to the floor area of an existing building." Accordingly, and in compliance with The Department of Buildings then-stated requirements for the work proposed by petitioner, an alteration permit was issued on March 4, 2003.
The DOB placed a "hold" on petitioner's application on June 9, 2004, ostensibly because it had unilaterally determined, fifteen months after the fact, that a "new building" application, not an "alteration" application, was required. The "hold" was placed in large part due to the existence of a retaining wall constructed on the subject lot. The DOB took the position, after issuance of an alteration permit, that the City Planning Commission needed to determine whether a special zoning approval was required for it. This retaining wall was previously shown on the prior approved plans, so it is not a matter for which the DOB can credibly claim no knowledge. As to DOB's position that no demolition permit was issued, the court notes that a violation issued by a DOB inspector, for work allegedly done without a demolition permit, was dismissed by the Environmental Control Board Administrative Law Judge on October 13, 2004, on the ground that the prior approvals permitted the work to go forward without a separate demolition permit.
By letter dated October 7, 2005, The DOB relied on its right to revoke a permit pursuant to the Administrative Code of the City of New York by reason of false statements or misstatements of material facts in the application process. Indeed, such inaccuracies, misrepresentations, and the like can be the basis for revocations or similar actions (see, Brock v. Zoning Board of Appeals, 237 AD2d 670; Welland Estates Inc. v. Smith, 109 AD2d 193, aff'd 67 NY2d 789). Since an agency such as DOB is bound by its own regulations (see, Matter of Gilman v. New York State Dir. Of Housing and Community Renewal, 99 NY2d 144), it follows that DOB is bound and limited by ground it asserted, i.e. that petitioner made false misrepresentations in its application.
As to the other ground ostensibly relied upon by respondents, that a new building application should have been filed because no part of the existing foundation had been utilized and the existing building had been demolished, is not supported in the record as a misrepresentation on petitioner's part. In the application process, it was clearly stated that the construction would "replace and relocate the existing square footage." Similarly, the retaining wall was indicated on plans subsequently approved by DOB for a permit.
Consequently, the placing of a "hold" upon petitioner's permit is not justified, is without foundation in fact, and is thus arbitrary and capricious. ( Matter of Pell v. Board of Education, 34 NY2d 222, 231; Nawaz v. State University of New York at Buffalo School of Dental Medicine, 296 AD2d 863).
Conclusion
For these reasons, this petition is granted. The determination placing a "hold" on petitioner's application (No. 500584799) is set aside, and current permits for alterations and allowing completion of the home at the subject site shall be renewed by respondents.
This is the decision, order, and judgment of the court.