Rothkrug Rothkrug & Spector, LLP, Great Neck (Simon H. Rothkrug of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondents.
Friedman, J.P., Sweeny, DeGrasse, Richter, Feinman, JJ.
Judgment, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 6, 2011, denying the petition and dismissing the proceeding, brought pursuant to CPLR Article 78, to annul a determination by respondent Board of Standards and Appeals of the City of New York (BSA), dated July 13, 2010, which denied petitioner's zoning variance application, unanimously reversed, on the law, without costs, and the matter remanded to respondent BSA for reconsideration of petitioner's application.
The evidence presented at the hearing establishes that petitioner erected a building on his property in good faith reliance upon a construction permit issued by respondent DOB, which DOB invalidated only after the building's substantial completion (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 10 Misc.3d 1077 (A) [Sup Ct, NY County 2005], affd 43 A.D.3d 314 [1st Dept 2007], affd 10 N.Y.3d 846 ; Jayne Estates, Inc. v Raynor, 22 N.Y.2d 417, 422 ). Petitioner's architect understood that DOB's interpretation of ZR § 23-49 permitted the building to be constructed along the property's side lot line, and DOB's plan examiner fully reviewed petitioner's plans for compliance with zoning regulations and approved them. Thereafter, DOB issued construction permits and petitioner erected his building in reliance upon the approved plans and permits. DOB subsequently changed its interpretation of the ZR § 23-49 and issued a stop work order.
Contrary to the motion court's finding, DOB, not petitioner, was in the best position to avoid the erroneous issuance of the permit. BSA's determination denying petitioner's variance application on the ground that he did not rely, in good faith, on DOB's permit, must be annulled, and the matter remanded to BSA to consider whether ...