57 A.D.2d 928 | N.Y. App. Div. | 1977
—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated April 15, 1975 and made after a hearing, which "denied” petitioner’s appeal from a "stop-work order” issued by the Department of Buildings of the City of New York and to compel respondent to reissue a certain building permit nunc pro tunc, petitioner appeals from a judgment of the Supreme Court, Queens County, entered January 16, 1976, which dismissed the proceeding. Judgment reversed, on the law, with costs, determination annulled, and petition granted to the extent that petitioner is granted a period of 103 days in which to complete all work on foundations in order to vest its rights and respondent is directed to reinstate the building permit nunc pro tunc for such period. Section 11-331 of the Zoning Resolution of the City of New York provides for the lapse of a permit which is inconsistent with a zoning change, unless all work on the foundations of the structure has been completed prior to the change. On October 10, 1974 ' the Board of Estimate rezoned a small area, which included the proposed building site, from an R 3-2 to an R 3-1 residential district. The former permitted high-rise residential buildings; the latter permitted only one- or two-family detached or semidetached homes. As of that date, petitioner, the owner of the site, had not completed the foundation work. On December 19, 1972 petitioner was issued a building permit for construction of a seven-story multiple dwelling at the southwest corner of Lanett Avenue and Beach 6th Street, Far Rockaway, Queens, and it was renewed in November, 1973. The building was to occupy 8% of the 170,000 square foot area. Petitioner’s uncontested testimony was that it would require a rental of $100 a room. After it was granted the initial permit, petitioner drafted plans and specifications and arranged the necessary financing. On June 3, 1974 and, allegedly, as construction was about to begin, the Department of Buildings (the Department) revoked the permit, contending that inclusion of a mapped but unimproved street violated section 36 of the General City Law. Petitioner appealed to respondent and, on July 23, 1974, the latter directed reinstatement of the permit. The time thus lost by petitioner was 51 days. Petitioner then proceeded with construction. On August 16, 1974, when the driving of piles to lay the foundation was scheduled to begin, residents of the area and others completely surrounded the building site with parked cars and prevented ingress of delivery trucks. It is uncontested that each delivery truck was surrounded and that construction workers were physically threatened. This interruption of construction continued for three days, until August 19, 1974. On that day a neighboring parochial school and certain homeowners in the area instituted an action to enjoin petitioner from proceeding with construction and, in connection with their accompanying motion for a temporary injunction, were granted an ex parte stay. The street demonstrations thereby became unnecessary and they ceased pro tempore. The motion for a temporary injunction was granted, with a memorandum decision dated September 3, 1974, on condition that a
