PREMISES AFFECTED – 140-32 34th Avenue, Block 4994, Lot 126, Borough of Queens
58-04-A
APPLICANT – New York City Department of Buildings
OWNER OF RECORD: Thomas Huang
SUBJECT – Applications February 26, 2004 – Application to revoke Certificate of Occupancy No. 401223289, on the basis that the Certificate of Occupancy allows conditions at the referenced premises that are contrary to the Zoning Resolution and the Administrative Code.
PREMISES AFFECTED – 140-32 34th Avenue, Block 4994, Lot 126, Borough of Queens
COMMUNITY BOARD #11Q
APPEARANCES –
For Administration: Lisa Orrantia, DOB.
ACTION OF THE BOARD -Application granted on condition.
THE VOTE TO GRANT –
Affirmative: Chair Srinivasan, Vice-Chair Babbar, and Commissioner Chin...... 3
Negative:...... 0
THE RESOLUTION –
WHEREAS, the application brought by the Commissioner of the Department of Buildings, dated February 26, 2004, reads:
“Application to revoke certificate of occupancy no. 401224714 pursuant to City Charter Section 666.6a on the basis that the certificate of occupancy allows conditions at the referenced premises that are contrary to the Zoning Resolution and Administrative Code.”; and
WHEREAS, a public hearing was held on this application on April 13, 2004, after due notice by publication in the City Record, with continued hearings on May 18, 2004, June 8, 2004, July 13, 2004, January 11, 2005, March 15, 2005, July 12, 2005, August 23, 2005, and then to decision on December 13, 2005; and
WHEREAS, the Department of Buildings (“DOB”) seeks to review and set aside Certificate of Occupancy Number 401224714 (the “CO”), issued on March 20, 2002 for a new building located at 140-32 34th Avenue in Queens within a new multi-building residential development, on the basis that the CO was issued in error; and
WHEREAS, this application was filed in conjunction with nine other applications, each for a different building within the proposed development; and
WHEREAS, the subject premises is located in an R6 zoning district; and
WHEREAS, the record reflects that the developer filed professionally certified new building applications for each of the ten buildings in question on April 5, 2001; and
WHEREAS, DOB conducted final inspections of the ten buildings, including the subject building, between February and April of 2002 and subsequently issued a CO for each of the ten buildings; and
WHEREAS, certain of the buildings are still owned by the developer and certain of the buildings are owned by individual unit owners; the developer and the unit owners were represented by separate counsel; and
WHEREAS, the CO indicates that the following are the lawful uses in the building: (1) an “accessory use, boiler room” in the cellar; (2) an “accessory use recreation room, attached two car garage” on the first floor; (3) a “dwelling” on the second floor; (4) a “dwelling” on the third floor; and (5) a “dwelling” on the mezzanine; and
WHEREAS, DOB represents that its inspectors issued Environmental Control Board Notices of Violation to several of the buildings in the new development for violations of the Administrative Code of the City of New York and of the Zoning Resolution for construction as proposed by, and in some cases built contrary to, the improperly approved plans; and
WHEREAS, DOB asserts that the following are the reasons why the CO was improperly issued and should be revoked: (1) the plans and CO incorrectly identify a floor as mezzanine instead of a fourth floor, contrary to AC § 27-232; (2) the plans do not support the use of the building’s fourth floor as an independent dwelling unit in a three-dwelling building as set forth in the CO; (3) the plans do not show an interior access stair to the roof, contrary to AC § 27-375(k)(1); (4) the plans fail to provide an exterior accessible route and an accessible primary entrance as set forth in AC § 27-292.5; (5) the plans fail to show the minimum distance between a required window and side lot line contrary to ZR § 23-861; and (6) the plans are not in compliance with certain off-street parking regulations of the Zoning Resolution; and
WHEREAS, correspondence submitted to the Board indicates that the developer consulted with DOB in an attempt to remove most of the objections presented to the Board in DOB’s initial application; and
WHEREAS, DOB stated in a submission dated June 30, 2004 that the revised plans still did not comply with the minimum distance between windows and side lot lines requirement; and
WHEREAS, on September 14, 2004, several of the unit owners within the development filed suit in the Supreme Court of the State of New York against the developer, alleging, among other things, breach of contract; and
WHEREAS, the attorney for the developer represents that it received approval for plans as of December 17, 2004 and construction permits in March of 2005 for the buildings located at 140-26A, 140-28, 140-28A, 140-30 and 140-30A 24th Avenue; and
WHEREAS, the applicant further represents that construction commenced on these units as of June of 2005; and
WHEREAS, DOB made a submission on June 28, 2005 that states that five of the units still had “disapproved” status, and although permits were issued for the other five units, the permitted work had not been completed; therefore none of the buildings were eligible for a final CO; and
WHEREAS, at the Board’s request, the attorney for the developer submitted a construction timeline that indicated that work was expected to be completed for the approved five units by December of 2005 and for the disapproved units by January of 2006; and
WHEREAS, according to DOB’s files, construction has not yet been completed on the five approved units, and the remaining five units still have disapproved status; and
WHEREAS, neither the attorney for the developer nor the attorney for the individual unit owners has submitted any additional information to disprove this information; and
WHEREAS, the Board recognizes that the developer and the individual unit owners will need to modify the COs in accordance with the plans approved by DOB for the five buildings under construction and with the plans that will be approved by DOB for the remaining five buildings, once all zoning and other compliance issues are resolved; and
WHEREAS, further, the Board notes that revocation of the COs will allow DOB to issue new or modified COs once all buildings are in compliance with all zoning and Building Code requirements; and
WHEREAS, the Board finds that, based upon the evidence submitted, the subject CO was improperly issued.
Therefore it is Resolved that the application brought by the Commissioner of the Department of Buildings, dated February 26, 2004, seeking revocation of Certificate of Occupancy No. 401224714, is hereby granted.
Adopted by the Board of Standards and Appeals, December 13, 2005.