Agenda - Planning Commission - 12/03/1996

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Z.B. November 1996. Page 5 renew them by applying within 30 days of the lapse to the Board of Standards and Appeals. The board would then determine whether construction was sub- stantially complete to justify a permit renewal. Steam Heat never applied to the board for renewal of its permits, and con- tinued construction. The city of New York Department of Buildings contacted Steam Heat and asked it for evidence that construction was substantially com- plete. After reviewing the evidence, the department determined it was, and .renewed Steam Heat's permits. Steam Heat opene'd on April 21, 1995. Brooklyn's borough president appealed the department's determination to the board. The board held public hearings and visited Steam Heat's premises, considering for permit-renewal purposes only the portion of the premises related directly to the adult entertainment use: one-third. Board members noted the construction related to the adult entertainment use was of the "most basic and impermanent naturewith rudimentaxy detailing and flimsy and inexpensive materials." Therefore, the board found, Steam Heat hadn't substantially completed construction or made substantial expenditures before the moratorium was enacted w it had no vested right to get new permits and open for business. Further, the board said the department did not have the authority to renew Steam Heat's permi.'ts. Steam Heat asked a court to review the board'sdecision. The city asked the court foi: a temporary order that would close the establishment. Steam' Heat claimed the board didn't have exclusive authority to decide whether its rights had vested '.and whe!her its permits could be renewed. It also claimed there wasn't enough evidenc6 to support the board's finding that con- struction wasn't substantially complet, e. The court dismissed Steam Heat's appeal. Since it found Steam Heat was operating in violation of zoning regulations (because it had no VeSted rights 'in its permits), ~ the cou~ granted the city's request for a closing order. Steam Heat. appealed. DECISION: Affirmed. Steam Heat wasn't entitled to permit renewals because it hadn't substantially completed construction or made substantial expenditures on the establishment. The board had enough evidence to support its decision. It was allowed to consider only the one-third of the premises related directly to the adult enter- tainment use. Although evidence regarding Steam Heat's expenditures was inconclusive, the board could also rely on evidence regarding Construction. Board members visited the premises five months after Steam Heat claimed construction was complete, and found them to be "impermanent," "flimsy" and "inexpensive." This and other evidex;ce proved construction wasn't so com- plete that Steam Heat was entitled to ~ested rights in its permits. The department shouldn't haye renewed Steam Heat's permits in the first place because it didn't have the authority. The city's zoning resolution clearly required that applications to renew bufl~ing permits had to be made to the board. Matter 'of Ellington Constructioh Corp. v. Zoning Board of Appeals of Incorporated Village of New Hernpstkad, 564 N. Y.S. 2d 1001.