103-05-A
APPLICANT – Rothkrug, Rothkrug ,Weinberg & Spector, LLP. for Main Street Makeover 2, Inc.,owner.
SUBJECT – Application filed on May 4, 2005 – for an appeal of the Department of Buildings decision dated April 22, 2005 refusing to lift the "Hold" on Application #500584799, and renew a building permit on approved plans for alteration to an existing one -family dwelling, based on a determination by the Department of City Planning dated February 2, 2005 that CPC approval of a restoration plan is required pursuant to Section 105-45 of the Zoning Resolution.
PREMISES AFFECTED – 366 Nugent Street, located at the S/W/C of intersection of Nugent Street and Spruce Street (not final mapped), Block 2284, Lot 44, Borough of Staten Island.
COMMUNITY BOARD # 2SI
APPEARANCES –
For Applicant: Hiram A. Rothkrug.
For Administration: Lisa M. Orrantia, Department of Buildings.
ACTION OF THE BOARD - Application denied.
THE VOTE TO GRANT –
Affirmative: ...... 0
Negative: Chair Srinivasan, Vice-Chair Babbar, and Commissioner Chin...... 3
WHEREAS, the instant appeal comes before the Board in response to a final determination of the Staten Island Borough Commissioner, dated March 22, 2005 (the “Final Determination”); and
WHEREAS, a public hearing was held on this application on October 18, 2005 after due notice by publication in The City Record, and then to decision on December 13, 2005; and
WHEREAS, the Final Determination was issued in response to a request that the Department of Buildings (“DOB”) lift the “Hold” status from DOB Application No. 500584799 (the “Application”) so that the building permit issued under the Application (the “Permit”) could be renewed and reinstated; and
WHEREAS, the Final Determination reads “Denied. CPC restoration plan required.”; and
WHEREAS, the subject premises is an approximately 100 ft. by 130 ft. lot, with 12,072 sq. ft. of lot area, and is located within an R1-2 zoning district within the Special Natural Area District, NA-1 (“SNAD”); and
WHEREAS, the site was previously occupied by a two-story, single-family dwelling constructed around 1920; and
WHEREAS, the Application was for an Alteration Type I Permit for a horizontal and vertical enlargement of a three-story residential building with sub-cellar and cellar”; and
WHEREAS, although not mentioned on the Application form, the plans submitted with the Application showed a proposed new retaining wall as well; and
WHEREAS, the Application was placed on hold status because DOB determined that the applicant for the Permit failed to submit the proposed plans to the City Planning Commission (CPC) for its review, pursuant to ZR §§ 105-02 and 105-40; and
WHEREAS, ZR §105-02 provides that the SNAD regulations apply to any “development” or “site alteration” on a lot within the SNAD; and
WHEREAS, ZR § 105-40 provides that prior to the issuance by DOB of a building permit for a “development” or “site alteration”, CPC must issue a certification to DOB that such work is approved; and
WHEREAS, the appellant claims no CPC review was necessary because the construction of the new building was actually an alteration, and that the construction of the wall was a grandfathered site alteration; accordingly, no development or site alteration occurred which would require CPC review; and
WHEREAS, as discussed in more detail below, the appellant also makes additional arguments as to why the instant appeal should be granted; and
WHEREAS, certain aspects of the factual background are contested, and will be discussed accordingly; however, both parties apparently agree that the genesis of the Application began on November 6, 2002, when an architect acting on behalf of the owner of the premises submitted an “Additional Information” form requesting that the Department accept an alteration-type application to “enlarge the existing house and to replace and relocate the existing square footage so as to be in compliance with existing zoning and to upgrade [its] structural integrity”; and
WHEREAS, DOB notes, and that appellant does not dispute, that no plans were presented to DOB when this request was made; and
WHEREAS, nevertheless, the request was ultimately accepted on November 8, 2002 by former Borough Commissioner Jorge Canepa; and
WHEREAS, after permission to bring in an alteration-type application for the purported enlargement of the existing dwelling was granted, the Application was formally filed, approved on March 3, 2003, and the Permit was issued on March 4, 2003 for an alteration of the existing building; and
WHEREAS, the Application was later slightly modified on September 30, 2003, and then renewed for an additional term on November 26, 2003, to expire on December 5, 2004; and
WHEREAS, the Application form describes the work as a “horizontal enlargement,” “vertical enlargement” and a “partial demolition” of the existing 2-story one-family residential building with cellar; the scope of work also included the removal of soil to reduce the grade on the site; and
WHEREAS, the appellant states that pursuant to DOB policy in effect at the time, notwithstanding the actual construction work involved, such demolition and construction could be construed by DOB as an alteration; and
WHEREAS, demolition and construction of the new building and wall commenced under the Permit; and
WHEREAS, the parties contest the chronology of construction; and
WHEREAS, the appellant claims that construction of the wall was completed in May of 2003, before any major demolition of the existing home; and
WHEREAS, in support of this claim, the appellant submitted affidavits, purportedly from contractors present at the site when construction was proceeding, all which assert that the retaining wall was completed before demolition of the existing dwelling; and
WHEREAS, DOB contends that demolition of the existing dwelling occurred in mid-April of 2003, before construction of the wall, which DOB contends occurred around May 6, 2003; and
WHEREAS, DOB bases its contentions on inspection records from April 16, 2003, on which date an inspector inspected the site in response to a complaint of demolition work without a permit; the inspector’s notes state “no action necessary – permits issued.”; and
WHEREAS, DOB also cites to inspection records from May 6, 2003, on which date an inspector inspected the site in response to a complaint that a 20-foot wall was installed without a permit; the inspector’s notes state that “approved plans [were] issued [for the] foundation built.”; and
WHEREAS, DOB also cites to a survey, originally dated October 30, 2002 and revised March 10, 2004, submitted with a subdivision application filed with CPC, dated March 31, 2004; and
WHEREAS, this survey indicates that the foundation for the new building was already in place by May 30, 2003; and
WHEREAS, although there is disagreement as to the chronology of construction, for reasons set forth below, the Board finds that is unnecessary to resolve this factual dispute; and
WHEREAS, as construction proceeded, DOB inspectors again inspected conditions at the site; and
WHEREAS, on May 18, 2004, an inspector issued an Environmental Control Board (“ECB”) violation for work without a permit in violation of Building Code § 27-147; and
WHEREAS, this violation noted, in part, “work without permit (demo)… 3-[story New Building] was in place… no visual confirmation of existing house being in place… “; and
WHEREAS, this violation was dismissed on October 13, 2004 by an ECB Administrative Law Judge (“ALJ”) based on the ALJ’s finding that then-Commissioner Canepa’s pre-consideration acceptance allowed the work to be performed without a demolition permit; and
WHEREAS, on June 9, 2004, during the time that the ECB violation was being resolved, DOB placed a hold on the Application; and
WHEREAS, on April 22, 2005, Acting Borough Commissioner Werner deFoe, who succeeded former Commissioner Canepa, denied a request to renew the Application permit and issued the Final Determination; and
WHEREAS, the Application continued to be in hold status, and DOB notified the owner that it intended to revoke the Permit; and
WHEREAS, the appellant subsequently filed the instant appeal; and
WHEREAS, DOB issued the owner a letter stating its intent to revoke the Permit and Application approval in October 2005; however, final revocation was stayed by DOB pending the outcome of the instant appeal; and
WHEREAS, the appellant’s first argument is that the construction of the new dwelling did not require CPC approval, since the work performed was not a “development” but an “alteration”; and
WHEREAS, ZR §12-10 defines “development”, in part, as “the construction of a new building or other structure on a zoning lot”; and
WHEREAS, the appellant argues that it did not construct a new “building or other structure” on the zoning lot; and
WHEREAS, the appellant asserts that the new 3-story residential building must be recognized as an “alteration” of the existing structure rather than a “development” because DOB issued an alteration-type permit for the work and the ECB ALJ dismissed a violation a DOB inspector issued for demolition work without a permit; and
WHEREAS, DOB rejects this claim because it relies on a pre-consideration that was obtained by the Permit applicant’s misrepresentation as to the nature and scope of proposed work, allowing the Application to be filed as an alteration rather than as a new building; and
WHEREAS, DOB states that the owner filed plans for, and demolished, the existing two-story dwelling and constructed a three-story dwelling on an entirely new footprint; and
WHEREAS, DOB contends that the Application plans show a full demolition of the existing building and construction of a new building, notwithstanding the representations made by the filing representative in the Application form; and
WHEREAS, DOB cites to approved Demolition Plan D-1, which indicates a complete demolition of the existing building, consisting of the removal of the roof, and all walls and floors of the foundation, cellar, first and second floors; and
WHEREAS, DOB also observes that Plan A-1 shows that the new three-story building will be situated on a different area of the lot than the prior building; and WHEREAS, further, DOB notes that the new building has a new foundation, new floors, new walls and a new roof, and is entirely unrelated to the existing structure; and
WHEREAS, based upon its review of the submitted evidence, the Board finds that the Application was in fact for a new building rather than an alteration; and
WHEREAS, the Board makes this determination based upon its review of the submitted plans and the relevant definitions; and
WHEREAS, the Board observes that construction of a dwelling with its own foundations on a portion of the lot previously unoccupied can in no way be characterized as an alteration of an existing building, especially where such existing building was located on another part of the lot and completely demolished; and
WHEREAS, logically, it can only be construed as construction of a new building on the lot, which falls squarely within the definition of “development”; and
WHEREAS, as noted above, the appellant argues that the pre-consideration request granted by the former Staten Island Borough Commissioner renders the Application valid as an alteration, since express permission to file it as an alteration was apparently given; and
WHEREAS, the Board does not find this argument persuasive; and
WHEREAS, instead, the Board finds that the architect’s pre-consideration request does not accurately reflect either the actual nature of the work proposed under the Application nor the actual work that occurred; and
WHEREAS, the architect’s request represented that the “[t]he client[‘s] intent is to enlarge the existing house . . . and to upgrade the structural integrity of the structure. In addition, the client intends to increase the square footage of the residence.”; and
WHEREAS, in fact, no such enlargement, upgrade, or increase in square footage of the existing dwelling was either filed for under the Application or performed; and
WHEREAS, based upon the inaccurate representations made by the architect, the Board is unsurprised that permission was granted to file the proposed work as an alteration-type application rather than as a new building; and
WHEREAS, the appellant also argues that construction of the retaining wall does not satisfy the definition of “development” in that the wall is not a “building or other structure”; and
WHEREAS, the appellant argues that the wall is not a structure because the wall is below grade, lacks a use, is not subject to zoning regulations, is comparable to a dry well, and neither the New York City Building Code definitions of “structure” or “retaining wall” identify a retaining wall as being a structure set forth in Building Code § 27-232; and
WHEREAS, DOB notes that the wall is an engineered piece of construction measuring approximately 130-foot long and 15-foot high for use in retaining soil that formerly lay at a steep incline of greater than 15%; and
WHEREAS, DOB states that the wall satisfies the Building Code definition of “structure” in that the wall is “an assembly of materials forming a construction for … use.”; and
WHEREAS, the Board agrees with DOB: the wall is clearly is an assembly of materials with a designed soil retaining function; and
WHEREAS, more importantly, as the SNAD regulations are found in the ZR and not the Building Code, the Board notes that in a letter dated February 2, 2005, the Department of City Planning (“DCP”) opines that the wall falls within the category of “other structure” as set forth in the ZR definition of “development” such that CPC review and approval in accordance with the applicable SNAD provisions is required; and