Following the denial of a special use permit by the Board of Standards and Appeals to allow the petitioner to enlarge a single-family residence in Brooklyn, petitioner appealed. When petitioner’s contractor inspected the premises prior to an application, it was discovered that the house had extensive wood damage due to termites and age, and therefore petitioner submitted a site plan that called for partial demolition and well as enlargement. The Department of Buildings issued a permit and during construction it was discovered that the foundation was not structurally sound, and as a result, all walls but a portion of one were torn down and replaced. Because all of the demolition work done had not been disclosed in the filed site plan, the Department of Buildings issued a stop work order which was later rescinded. Nine month later, upon inspection of the premises, the Department of Buildings determined that the construction was exceeding the permitted bulk parameters and a second stop work order was issued. Petitioner then applied for a special use permit under the Zoning Resolution to enlarge the residence over the bulk parameters. The application was denied following a hearing as the Board determined that due to the demolition, the construction was not an “enlargement” which is defined in the Zoning Resolution as “an addition to the floor area of an existing building” and that therefore the Board did not have authority to grant the permit.
The appeals court disagreed with the Board’s conclusion, noting that the issuance of an alteration permit by the Building Department did not prevent the Board of Standards and Appeals from determining that the residence was not an existing building which may be enlarged pursuant to a special use permit. The Court found the board’s position arbitrary and capricious since in a previous matter the board had granted a special use permit legalizing the enlargement of a residence whose entire framing had to be replaced during construction due to severe damage caused by termites and age. Therefore, in this case, the Board failed to follow its prior precedent nor did it distinguish the two matters.
Lyublinskiy v Srinivasan, 65 A.D. 3d 1237, 887 N.Y.s.2d 119 (2 Dept. 9/22/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24113.pdf
