GRA V, LLC v. Meenakshi Srinivasan

OPINION OF THE COURT Buckley, J. Petitioner GRA V, LLC (Owner) acquired two adjoining lots with the intention of developing a seven-story, 63-unit apartment building in an area that consisted mostly of detached one- and two-family homes, but was zoned R6, which allows medium density housing, i.e., buildings up to 12 stories. Residents of the area opposed the project, claiming that it would “destroy the character of the . . . neighborhood,” and a race ensued: the community sought to obtain a rezoning to prohibit structures of Owner’s planned magnitude, while Owner endeavored to complete as much of the construction as possible before any such rezoning. Administrative Code of the City of New York § 27-157 (a) (1) and § 27-164 require applications for new building and foundation permits to be accompanied by a “lot diagram . . . drawn in accordance with an accurate boundary survey, made by a licensed surveyor.” Instead of a lot diagram by a licensed surveyor, Owner submitted a “Sanborn map,” published by the Sanborn Library LLC, which advises that “the information contained in this product is believed by the publishers to be reliable, but its accuracy is not guaranteed.” Owner’s architect affixed her stamp and signature to the Sanborn map, thereby attesting “to the best of [her] knowledge and belief, the plans [60] and work shown thereon comply with the provisions of the building code and other applicable laws and regulations.” The Sanborn map inaccurately depicted the structure on an adjacent lot as flush with the street line, when in fact it was set back one foot and nine inches. Owner’s plans, based on that inaccuracy, would result in a building that violated the pertinent zoning regulations, which required a new construction in an R6 area on a street less than 75 feet wide to be located no closer to the street line than the adjacent existing buildings. On September 7, 2004, the Department of Buildings (DOB) issued Owner a foundation and excavation permit. By September 28, Owner completed the excavation and poured about 85% of the foundation, spending approximately $450,000 on the project. On that same date, the City Council approved a law rezoning the area from R6 to R4A, allowing only one- and two-family residences, and thus prohibiting a building the size of Owner’s planned construction. The next day, DOB issued a stop work order on the basis that the permit had been automatically revoked by the rezoning. Owner filed a request to vacate the stop work order on the ground, inter alia, that it had acquired a common-law vested right to continue development of the project.* Initially, DOB did not contest Owner’s invocation of the common-law vested rights doctrine because, even though it was against DOB policy to accept Sanborn maps, Owner’s architect had “stamped the map with her seal and assured the reviewing plan examiner that the map accurately represented the conditions at the site.” It was only after the community submitted a survey demonstrating the inaccuracies of the Sanborn map, which revealed noncompliance with zoning regulations, that DOB opposed Owner’s common-law vested rights argument. Even then, DOB declined to reject the request to vacate the stop work order until Owner submitted its own survey. It was only after Owner submitted its survey, confirming that the original plans did not conform to zoning resolutions, that DOB denied the request. Thereafter, Owner applied to respondent Board of Standards and Appeals of the City of New York (BSA) for a determination that it had acquired a common-law vested right to continue development of the project. BSA denied the application on the ground that the foundation permit upon which Owner relied was invalid, [61] because Owner’s plans were not accompanied by “an accurate boundary survey, made by a licensed surveyor,” as required by Administrative Code § 27-157 (a) (1) and § 27-164. It is well settled that vested rights cannot be acquired in reliance upon an invalid permit (see Matter of Natchev v Klein, 41 NY2d 833, 834 [1977]; Matter of Jayne Estates v Raynor, 22 NY2d 417, 422 [1968]). Even where DOB erroneously issues a permit due to its own initial failure to notice that a builder’s plans do not comply with code provisions, no vested rights are acquired, since the permit could not have been validly granted in the first place (see Matter of Perrotta v City of New York, 107 AD2d 320, 324-325 [1985], affd 66 NY2d 859 [1985]). Furthermore: “A determination as to whether [a] petitioner had vested rights under [its] building permit must, of necessity, involve an examination of the validity of the permit, as well as compliance with technical provisions of the Zoning Resolution, and this is clearly an appropriate inquiry for agency expertise” (id. at 324). The determinations of BSA, as the ultimate administrative authority charged with enforcing the Zoning Resolution, are thus entitled to great deference (see Matter of Toys “R” Us v Silva, 89 NY2d 411, 418-419 [1996]). Here, BSA’s determination that the permit was invalid because Owner’s application was supported only by an inaccurate Sanborn map, rather than an accurate actual survey, and that the proposed construction would run afoul of zoning resolutions pertaining to siting distances, was rational, and therefore should not be disturbed. In contravention of Matter of Perrotta v City of New York (107 AD2d 320 [1985], affd 66 NY2d 859 [1985]), the dissent takes the position that the determination of the validity of a permit and compliance with technical provisions is a pure legal issue for the courts and on which agency expertise is entitled to no deference. Moreover, the dissent argues that the foundation permit must be examined without regard to the rest of the proposed building, while simultaneously maintaining that the foundation permit is inseparable from the entire planned building. Specifically, the opposing writing argues that, for the purpose of assessing whether a foundation permit was validly issued, it is immaterial whether or not the above-ground structure would violate any zoning resolutions; but for the purpose of determining vested rights, the proposed above-ground structure must be deemed an integral part of the foundation permit, and thus a vested right in a foundation permit would automatically confer a vested right in the entire building. [62] Respondents take the consistent position that a foundation permit should be examined as part of an entire construction, for both validity and vesting purposes, and Matter of Glenel Realty Corp. v Worthington (4 AD2d 702, 703 [1957], lv dismissed in part and denied in part 3 NY2d 708, 924 [1957]), quoted by the dissent, speaks of the foundation as “an integral part of the whole structure.” The dissent would also set a new standard for determining when the common-law vested rights doctrine applies: that a permit need not have been validly issued, but merely somewhat validly. DOB and BSA take the position that a permit “is either valid or invalid” and that a “permit does not become valid because it is slightly invalid.” In another context, one might say that there is no such thing as being slightly pregnant. In fact, the court in Perrotta rejected the dissent’s argument, ruling that it was not for the courts to declare that a permit was “ ‘technically unlawfully issued’ ” or that “ ‘compliance with mere technical matters [should] be viewed as curable irregularities, not as grounds for revocation [of a permit]’ ” (107 AD2d at 323, quoting 122 Misc 2d 683, 687, 688 [1984] [the decision under review]). The principles of equitable estoppel underlying the vested rights doctrine apply only when there is a validly issued permit (see Natchev, 41 NY2d at 834; Jayne Estates, 22 NY2d at 422); the dissent would shift the analysis and apply equitable estoppel to the threshold issue of determining whether the permit was validly issued. However: “a municipality, it is settled, is not estopped from enforcing its zoning laws either by the issuance of a building permit or by laches and the prior issue . . . of a building permit could not confer rights in contravention of the zoning laws ...[;] estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results” (Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988] [internal quotations marks, brackets and citations omitted], cert denied 488 US 801 [1988]). To the extent the dissent contends that DOB and BSA acted in an arbitrary and capricious manner in denying Owner’s application, the record establishes that DOB at first was willing to consider the request, based on Owner’s architect’s stamping the [63] Sanborn map as accurate, and only denied the application after reviewing Owner’s own formal survey, which revealed the noncompliance with zoning regulations. Thus, DOB and BSA made their determinations based upon a careful evaluation of all the facts, with a full and fair opportunity for Owner to make any pertinent submissions. Finally, the dissent’s concern with unpredictable governmental action is unfounded in this case, where Owner knew that a change in the zoning law was possible, if not probable, and with that forewarning took a gamble to construct the foundation before that. Moreover, that gamble was staked on the risky use of a Sanborn map that was certified as accurate even though no survey had been undertaken. Indeed, the record supports an inference that Owner submitted a Sanborn map, rather than taking the time to conduct an actual survey, in order to gain speed on the competing community group. In the words of DOB: “As a matter of clarification, the submission of the Sanborn map instead of a survey is not the determinative issue here. Instead, the fact that the architect filed for an erroneous street wall setback is determinative. An architect should have realized that it was reckless to rely on a [Sanborn] map as accurately depicting the location of the adjoining properties to satisfy the requirements of [Zoning Resolution] § 23-633. . . . “The architect should have known that only a survey would accurately depict the existing conditions at the site. Therefore, any hardship is self-created.” Absent from the dissent’s discussion of equitable principles is mention of the fact that Owner created the very conditions leading to revocation of the permit by attesting to a Sanborn map as accurate without verifying whether that assertion was true. Accordingly, the order of the Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered October 6, 2006, which denied the petition brought pursuant to CPLR article 78 to annul the determination of respondent Board of Standards and Appeals of the City of New York denying the application for a declaration that petitioner GRA y LLC had acquired a common-law vested right to continue development under zoning regulations applicable prior to the enactment of more restrictive zoning, should be affirmed, without costs. Footnotes [*] Petitioners now concede that they do not qualify for statutory vested rights under New York City Zoning Resolution § 11-331.