Pantelidis v. New York City Bd. of Standards and Appeals, 2001 NY Slip Op 30061 (N.Y. Sup. Ct. 12/26/2001)
| Decision Date | 26 December 2001 |
| Docket Number | Docket Number 110531/01. |
| Citation | 2001 NY Slip Op 30061 |
| Parties | GEORGE PANTELIDIS, Petitioner, For a Judgement pursuant to Article 78 of the CPLR, v. NEW YORK CITY BOARD OF STANDARDS AND APPEALS and NEW YORK CITY DEPARTMENT OF BUILDINGS, Respondents, JOSEPH AND ROSA SHEEHAN, Intervenor-Respondents. |
| Court | New York Supreme Court |
Pursuant to Article 78 of the CPLR, the Petitioner, George Pantelidis ("petitioner" or "Pantelidis"), moved by order to show cause ("OSC") for an order (Verified Petition at ¶1 as OSC Exh. C ). Petitioner initially sought and obtained a temporary restraining order ("TRO") to enjoin the N.Y.C. Department of Buildings ("DOB) and BSA' (collectively "respondents") from: (a) enforcing the Resolution; (b) issuing any violation orders against Pantelidis for non-compliance with the Resolution; and (c) revoking the DOB permit which previously allowed Pantelidis to add a glass enclosed exterior stairwell to the rear of the building. Pursuant to a signed stipulation (OSC Exh. A), the respondents consented to the issuance of the TRO pending the hearing of this Article 78 petition and an agreed upon briefing schedule.
Shortly thereafter, Joseph and Rosa Sheehan (the "Sheehans" ) moved by order to show cause ("OSC-2") for an order granting them leave to intervene as additional respondents in this Article 78 proceeding, transferring this case to the Hon. Sheila Abdus-Salaam, J.S.C., as a related case, vacating the stay of enforcement of the Resolution or, alternatively, requiring the petitioner to post an undertaking and accelerating the return date of petitioner's OSC from July 25, 2001 to an earlier date.
The parties appeared in court on June 15,2001 and this Court heard arguments in support of, and in opposition to, a continued stay to enjoin the enforcement of the Resolution pending the hearing and determination of the respective orders to show cause. This Court continued the stay pending the determination of this Article 78 petition and issued verbal bench directives granting the branch of Sheehan's OSC-2 for leave to intervene (see, discussion, infra) but declining to transfer this proceeding to Justice Abdul-Salaam as a related case. This Court generally took no position as to the parties' respective briefing and submission schedules for the filing of additional replies, sur-replies, if any, and correlating memoranda of law. Both the OSC and OSC-2 are consolidated herein for disposition.
Pantelidis owns a multiple dwelling and land located at 116 East 73rd Street, New York, New York ("property" or "building"). He occupies the first floor and the rear of the second floor of the building as his personal residence. The Sheehans are neighboring property owners of a townhouse located 114 East 73rd Street, New York, New York ( "adjoining [adj.] property" or "adj. building") and share a party wall with the petitioner. In or about December 1998, Pantelidis applied to the DOB for a building perm it to construct a greenhouse2 (the "glass extension" or "exterior stairwell") at the rear of his property. Particularly, petitioner requested:
...[B]uilding [Department approval and of the removal of the existing outer court and replace same with two-story greenhouse type construction.
The greenhouse will cover only the area of the existing inner court and will fall within the permitted FAR and open space ratio, but will fall within the 30' rear yard. The greenhouse will be set back 1' 6" from the face of the rear building line. The greenhouse will be constructed of extruded metal mullions and double thermal glass. The lot line glass will be protected by tempered glass with sprinklers at 6' 0" intervals. (OSC Exh. E).
The petitioner began constructing the glass extension in January 1999. The base of the exterior framework of the exterior stairwell started above grade, i.e., above the first story or basement level of the building. In June of that year, the Sheehans filed a complaint with the DOB (OSC Exh. D) essentially questioning the near completed construction of the greenhouse and deck as not being in compliance with certain zoning regulation requirements and otherwise depriving certain rent regulated tenants, who occupy the rear basement studio apartment within the building, of adequate light and air. Pantelidis subsequently met with the DOB Manhattan Borough Commissioner (Pantelidis Aff. at 75) and on June 25, 1999, Borough Commissioner Livian issued his hand-written determination of approval; to wit: "Ok[ay] to accept 2 story greenhouse, the Greenhouse is projecting 6' 0" into required rear yard. The 2 story greenhouse reduces degree of non-complying outer court." (see, OSC Exh. E, supra). The glass extension was completed in August 1999 at a cost of $150,000.00. (Pantelidis Aff. at 77). At the request of the Sheehans, the Borough Commissioner updated DOB's prior approval of the permit for the now completed exterior stairwell on December 28, 2000, without making any changes to his decision. (See, hand-written notation at the lower left-hand portion of this document as OSC Exh. E, supra).3
On January 24, 2001, and within 30 days of the date of issuance of the DOB's updated decision, the Sheehans filed their appeal with the BSA, inter alia, challenging the DOB's permit which approved the construction of the two story glass extension in the rear of the building as being contrary to the applicable Zoning Resolution(s) and which allowed, and continues to allow, this exterior stairwell to negatively impact on the Sheehans' quality of life as owners of the adj. building and adj. property. Both the petitioner and the DOB filed opposition papers and urged the BSA to sustain the DOB's determination.
Among the findings contained in its Resolution issued April 27, 2001 (see, OSC Exh. J), the BSA ruled that the:
... DOB approval now permits the western portion of the rear yard to be violated, which increases the degree of noncompliance in the rear yard; ...[that] approximately 26 square feet of the required rear yard that were previously unencumbered now contains portions of the building in the first and second floors; [that although] the western side yard at the rear of the...building was only six feet from the side lot line to the building wall[, nonetheless,] the approved enlargement is primarily in that six foot wide space, taking the building wall to the side lot line; [that] the Zoning Resolution ["ZR"] does not allow for the decrease in one non-complying condition to offset a new or increased non-compliance relating to another regulation; [that the ZR] allows for an accessory non-commercial greenhouse to be located in required rear yards as permitted obstructions, [however, the petitioner's] "greenhouse" is built above the first story (the basement) and contains two stories, one on the first floor and one on the second floor, ... rises a full three floors above grade reaching a height of 30', well in excess of the 14' maximum...[and does not] resemble[] the plain and obvious meaning of a greenhouse4; [that] the...structure more closely resembles a glassed-enclosed extension to the building as an enclosed stairwell; [and that] the ...[DOB] acknowledges that the [extension] does not meet the definition of a "greenhouse"......(Bracketed matter and emphasis added).
Based on the foregoing and other recited factors, the BSA granted the Sheehans' appeal and reversed the DOB Borough Commissioner's December 28, 2001 updated determination of approval of Alt Application No. 102232344. It is also apparent that the Resolution implicitly requires Pantelidis to tear down the glass extension and restore the rear of his building and property to its original condition.
The petitioner raises a number of grounds to set aside the BSA's Resolution: (1) the BSA should not have ruled on the Sheehans' appeal as same was time barred because said appeal was filed on January 24,2001, more than 30 days5 after the DOB's final determination granted the building permit for the construction work dated June 25, 1999; (2) Petitioner constructed a fire-safe exterior stairwell ( see, Exh. G6 to Pantelidis' affidavit in opposition ["Opp. Aff."]) at the rear of his building in an "outer court "and not a "rear yard" and, therefore, he was not required to comply with the ZR's 30' depth requirement; (3) assuming, arguendo, this exterior stairwell was built on a rear yard, nonetheless, Pantelidis could not have increased the degree of noncompliance with this 30' depth requirement because the existing rear of the building, even without the glass extension, left a rear yard depth of 24' 2"7; (4) the glass extension on/over the open space to the side of the earlier built 14' extension (otherwise legal) and abutting the side lot line seemingly made that area more compliant with the relevant ZR which otherwise disallows side yards and/or such open spaces less than 8' wide; (5) the petitioner was deprived of due process because he was not afforded the opportunity to respond to documentation the Sheehans submitted to the BSA 1 day prior to the hearing date; and (6) the DOB should be equitably estopped from revoking the permit because the petitioner, now apparently to his detriment, had completed the construction of the glass extension relying on this City agency's approval.
Essentially, the respondents supported the Sheehans' application to join as inter...
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