Last month's court decision ordering the removal of potentially 20 floors of a high-rise building (The Committee For Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates, Sup. Ct., N.Y. Co., Index No. 157273/2019) shook the local development community. How can the issuance of a construction permit by one branch of government be invalidated because of community opposition? And when can a developer rely upon final determinations of the Board of Standards and Appeals (BSA)?

The dispute involves the DOB's issuance of a permit authorizing the construction of a 55-story, 668-foot-high residential and community facility building on a development site with 110,794 square feet of lot area. The development site's "zoning lot" was created over 28 years by agreements made with contiguous neighbors to subdivide and merge land parcels and partial land parcels within the block. Each time the agreements were made, "declarations" were recorded as conveyances that established the modified tracts of land.

After the developer obtained the building permit, even though the proposed new building's dimensions complied with the requisite mathematical formulae based on the size of its zoning lot, opponents of the project contended that the permit was not validly issued because the underlying zoning lot did not comply with Zoning Resolution § 12-10(d). Section 12-10(d) defines a "zoning lot" as "a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of 10 linear feet, located within a single block, which at the time of filing for a building permit … is declared to be a tract of land to be treated as one zoning lot for the purpose of this Resolution."