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Development
City Not Estopped from Preventing Construction of Building Despite Longstanding Interpretation of Zoning Resolution
The Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates Supreme Ct., N.Y. Cty, 1/17/19 (Perry, J.).
Community groups brought an article 78 proceeding challenging a determination by the Board of Standards and Appeals upholding issuance of a building permit for a 55-story tower at 200 Amsterdam Avenue. The court granted the petition, holding that the parcel on which the partially-built tower sits is not a zoning lot within the meaning of the New York City Zoning Resolution.
Developer assembled a parcel consisting of portions of various tax lots to create a 39-sided lot. Developer sought a building permit for the tower, contending that the lot constituted a zoning lot within the meaning of section 12-10 of the Zoning Resolution. Developer relied on a 1978 memo by the Acting Commissioner of the Department of Buildings (the Minkin Memo) . The Minkin Memo interpreted the zoning resolution to permit a zoning lot consisting of one or more “tax lots or parts of tax lots.” In 2017, the Department of Buildings issued a building permit. Community groups appeals to the Board of Standards and Appeals. A majority of the City Council, the Manhattan Borough President, the City Comptroller, and a variety of other groups supported the appeal. DOB presented a letter reversing its position and concluding that the Minkin memo had been incorrect, but seeking affirmance of its determination because of general reliance on the Minkin memo over a 40-year period. BSA upheld DOB's grant of the permit, and community groups brought this article 78 proceeding.
In granting the petition, the court concluded that the BSA had acted unreasonably in ignoring DOB's determination that the Minkin interpretation was incorrect, and concluded that the developer had not acquired vested rights nor was the city estopped from enforcing the language of the zoning resolution. The court remanded to the BSA for a redetermination in light of the correct legal interpretation of the ordinance, which would not permit a zoning lot composed of partial tax lots.
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