At the Donovan Hatem January 21 Roundtable, we discussed the decision in The Committee for Environmentally Sound Development v. Amsterdam Ave Redevelopment whereby a New York trial court annulled a resolution of the Board of Standards and Appeal, thereby revoking a DOB permit, and directed the removal of many floors of a nearly completed high rise building. At our Roundtable we reported an appeal had been taken from that decision, and the appeal was supported by amicus briefs from the NY Building Congress, Real Estate Board of NY and Assoc for a Better New York.

A unanimous panel of the Appellate Division has now reversed that decision. In its March 2 decision and order, the Appellate Division held that the zoning provision at the center of the dispute is ambiguous, and the Board of Standards and Appeals applied a rational interpretation based upon a longstanding DOB memorandum on the application of the provision. In that regard, the Court gave deference to the Board’s expertise in the area of zoning and found the Court below should not have imposed its own interpretation of the provision in the place of the Board’s. This was in keeping with past precedent holding that courts should defer to governmental agencies charged with administering a statute where interpretations require knowledge and understanding of how the subject industry operates. The Court also held that the owner’s moving forward with the construction while various proceedings were ongoing was in good faith (it had a valid permit and there were no restrictions to proceeding with the construction), and the Petitioner was not diligent in seeking to enjoin construction (it made one motion for an injunction, which was denied, and then never pursued its appellate rights). Consequently, the doctrine of “mootness” applied; that is, changed circumstances (completion of the top floors of the building and much of the curtain wall, at significant cost) removed the Court’s ability to render a decision on an actual controversy. 

Click here to read the complete decision

If you have any comments or questions about the ruling and its implications, please contact Steve at swillig@donovanhatem.com or the Donovan Hatem attorney that handles your matters

Steve Willig is a partner in the firm’s Litigation department and has represented clients in commercial and casualty litigation for more than thirty years.