BSA To Developer: Continue Building Despite Downzoning
While Community Board 14, the Queens Borough President's office, residents and the chair of the Zoning and Franchise committee in the City Council, Councilman Tony Avella, provided testimony against granting relief to the property's owner, Matt Probkevitz, the Board of Standards and Appeals found on September 16 the owner met all the criteria to build under the old zoning regulations under the common law doctrine of vested rights.
In its decision, the Board of Standards and Appeals said that it understood and took into consideration the fact that "the community and the elected officials worked diligently on the Far Rockaway and Mott Creek Rezoning and that the [proposed] buildings do not comply with the new R3X zoning parameters..."
Given that understanding, however, the board ruled that, "The owner [of the property] has met the test for a common law vested rights determination and owner's property rights may not be negated merely because of general community opposition."
The BSA found that Probkevitz met the three areas necessary for the property at 160 and 170 Beach 4 Street to be considered under the common law doctrine.
The BSA said, according to evidence submitted to them, at the time of the downzone substantial work had been done: excavation for both buildings was complete, the foundation for the larger home had been poured (common law does not say that a foundation must be complete), all pilings were put in and 80 out of 110 total yards of concrete had been poured at the site.
The agency also believed that Probkevitz had made substantial expenditures of $184,919.09 out of $650,500 budgeted for the project.
Finally, the BSA ruled that serious loss would result for the developer because "the need to redesign, coupled with $184,919.09 of actual expenditures that could not be recouped, constitutes a serious economic loss, and that the supporting data submitted by the applicant supports this conclusion."
Probkevitz did not return a call seeking comment for this story.
Last September, the area was downzoned from an R5 - which allows as of right to build general residences of almost any size - to an R3X (which allows for single and two-family detached homes). Residents of Mott Creek - with the help of CB14, the Queens Borough President's office and Avella - were able to get the zoning changed after believing their area was becoming overdeveloped.
"I don't know what the next step is. I can't believe it," said Fran Tuccio a Mott Creek resident. "We did everything properly. We got everyone's approval [for downzoning] and it gets overturned."
The BSA reinstated previous work permits, that were withdrawn after the downzone took effect. The BSA also granted the developer the ability to obtain new permits for various types of work to finish construction and obtain a certificate of occupancy.
The BSA's decision could have implications in Rockaway's west end communities that are now thinking about downzoning. Probkevitz's case demonstrates that development projects that get significantly underway before the downzoning becomes official stand a good chance of becoming vested. Other downzonings could spark a rush among developers to get partial foundations poured before restrictions take hold.