APPLICANT Sheldon Lobel, P.C., for Airport Hotels, LLC, Owner

245-08-BZY

APPLICANT – Sheldon Lobel, P.C., for Airport Hotels, LLC, owner.

SUBJECT – Application October 23, 2008 – Extension of time to complete construction (§11-331) of minor development commenced under the prior C2-2/R3-2+ district regulations. C1-1/R3X.

PREMISES AFFECTED – 219-05 North Conduit Boulevard, bounded by Springfield Boulevard, 144th Avenue and North Conduit Boulevard, Block 13085, Lot 4, Borough of Queens.

COMMUNITY BOARD #13Q

APPEARANCES –

For Applicant: Jordan Most.

ACTION OF THE BOARD – Application granted.

THE VOTE TO GRANT –

Affirmative: Chair Srinivasan, Vice Chair Collins, Commissioner Ottley-Brown, Commissioner Hinkson and Commissioner Montanez ...... 5

Negative:...... 0

THE RESOLUTION:

WHEREAS, this is an application under ZR §11-331 to rescind a stop work order, to renew a building permit and to extend the time for the completion of the foundation of a three-story (Use Group 5) 65-room transient hotel; and

WHEREAS, a public hearing was held on this application on January 13, 2009, after due notice by publication in The City Record, with a continued hearing on February 24, 2009, and then to decision on April 7, 2009; and

WHEREAS, the premises and surrounding area had site and neighborhood examinations by Chair Srinivasan, Vice Chair Collins, Commissioner Hinkson, Commissioner Montanez and Commissioner Ottley-Brown; and

WHEREAS, Community Board 13, Queens recommends disapproval of this application; and

WHEREAS, City Council Member James Sanders, Jr. and City Council Member Leroy Comrie provided written and oral testimony in opposition to the application; and

WHEREAS, representatives of the Springfield Gardens Taxpayers & Citizens Association, Federated Blocks of Laurelton, the Jamaica chapter of the National Association for the Advancement of Colored People and the Concerned Citizens of Laurelton also testified in opposition to this application; and

WHEREAS, a number of neighborhood residents also testified in opposition to the application; and

WHEREAS, collectively, the parties who provided testimony in opposition to the proposal are the “Opposition;” and

WHEREAS, specifically, the Opposition raised the following concerns: (1) excavation was not completed; (2) substantial progress on the foundation was not made; (3) construction took place after working hours or when work was stopped; (4) the proposed sewer system may not comply with applicable regulations; and (5) the proposed hotel is incompatible with neighborhood character; and

WHEREAS, the subject site is located on a through block site bounded by 144th Avenue to the north, Springfield Boulevard to the west and North Conduit Avenue to the south; and

WHEREAS, the site has a frontage of approximately 283 feet on 144th Avenue, 120 feet on Springfield Boulevard and 303 feet on North Conduit Avenue; and a total lot area of approximately 18,383 sq. ft.; and

WHEREAS, the site is proposed to be occupied with a three-story transient hotel with one subcellar (the “Building”); and

WHEREAS, the Building is proposed to have a total floor area of approximately 18,267 sq. ft. (1.0 FAR); and

WHEREAS, the site was formerly located within a C2-2 (R3-2) zoning district; and

WHEREAS, on May 15, 2008, New Building Permit No. 402590665-01-NB (the “Permit”) was issued by the Department of Buildings (“DOB”) permitting construction of the Building; and

WHEREAS, on September 4, 2008 (hereinafter, the “Enactment Date”), the City Council voted to enact the Laurelton Rezoning, which changed the zoning district to C1-1 (R3X); and

WHEREAS, the applicant represents that the Building complies with the former C2-2 (R3-2) zoning district parameters; specifically, the proposed use as a Use Group 5 transient hotel; and

WHEREAS, because the Building does not conform to the permitted uses of the C1-1 (R3X) zoning district and work on the foundation was not completed as of the Enactment Date, the Permit lapsed by operation of law; and

WHEREAS, additionally, DOB issued a Stop Work Order on September 9, 2008 halting work on the Building; and

WHEREAS, the applicant now applies to the Board to reinstate the Permit pursuant to ZR § 11-331, so that the proposed development may be fully constructed under the parameters of the prior C2-2 (R3-2) zoning district; and

WHEREAS, ZR § 11-331 reads: “If, before the effective date of an applicable amendment of this Resolution, a building permit has been lawfully issued . . . to a person with a possessory interest in a zoning lot, authorizing a minor development or a major development, such construction, if lawful in other respects, may be continued provided that: (a) in the case of a minor development, all work on foundations had been completed prior to such effective date; or (b) in the case of a major development, the foundations for at least one building of the development had beencompleted prior to such effective date. In the event that such required foundations have been commenced but not completed before such effective date, the building permit shall automatically lapse on the effective date and the right to continue construction shall terminate. An application to renew the building permit may be made to the Board of Standards and Appeals not more than 30 days after the lapse of such building permit. The Board may renew the building permit and authorize an extension of time limited to one term of not more than six months to permit the completion of the required foundations, provided that the Board finds that, on the date the building permit lapsed, excavation had been completed and substantial progress made on foundations”; and

WHEREAS, a threshold requirement in this application is that the Permit is valid; and

WHEREAS, ZR § 11-31(a) provides that “[a] lawfully issued building permit shall be a building permit which is based on an approved application showing complete plans and specifications, authorizes the entire construction and not merely a part thereof, and is issued prior to any applicable amendment to this Resolution;” and

WHEREAS, the record indicates that on May 15, 2008, the Permit was issued by DOB authorizing construction of the entire Building; and

WHEREAS, by letter dated January 12, 2009, DOB states that the Permit was lawfully issued; and

WHEREAS, thus, the Board finds that the Permit was lawfully issued by DOB on May 15, 2008; and

WHEREAS, accordingly, the Board finds that the record contains sufficient evidence to satisfy the findings set forth in ZR § 11-31(a) and that a decision may be rendered provided the other findings are met; and

WHEREAS, because the proposed development contemplates construction of one building, it meets the definition of a minor development; and

WHEREAS, since the proposed development is a minor development, the Board must find that excavation was completed and substantial progress was made as to the required foundation; and

WHEREAS, the applicant states that excavation was completed on July 11, 2008, and that substantial progress was made on the foundation as of the Enactment Date; and

WHEREAS, in support of this statement, the applicant has submitted affidavits by the construction manager, a construction log documenting the amount and type of work performed each day of construction, and photographs of the site; and

WHEREAS, the Opposition asserts that excavation is not complete because photographs show two large mounds of dirt on the north and west sides of the site and that the location of several pile caps to be installed require excavation; and

WHEREAS, in response, the applicant states that excavation is deemed completed under ZR § 11-331 when all soil has been excavated from the portion of the site in which the foundations are to be installed and does not require the remaining portion of the site, where the mounds of dirt are found, to be excavated or cleared; and

WHEREAS, the applicant further states that excavation of the foundation area was performed to install all the foundation elements and necessary piles, but that some excavated pile locations were backfilled to ensure site safety; and

WHEREAS, the applicant represents that for the pile caps to be installed at these locations, some soil may need to be removed; however, this would not constitute incomplete excavation (citing BSA Cal. No. 204-07-BZY); and

WHEREAS, the Board further notes that the photographs submitted by the Opposition indicate that the area within the foundation has been fully excavated; and

WHEREAS, the Board notes that excavated areas are often backfilled to ensure site safety and finds that the excavation performed at the site for the foundation of the Building is complete for vesting purposes under ZR § 11-331; and

WHEREAS, as to substantial progress on the foundation, the applicant states that, as of the Enactment Date, the following work had been completed: (1) 212 linear feet of shoring, constituting 100 percent of shoring; (2) 240 piles driven, constituting 100 percent of the piles; (3) 37 pile caps, constituting 93 percent of the pile caps; (4) pouring of 310 cubic yards of concrete, constituting 32 percent of the concrete to be poured; and (5) all rebar for pile caps and basement slab and 285 linear feet of rebar for grade beams, constituting 29 percent of the grade beam rebar; and

WHEREAS, as discussed below, the concrete counted toward progress on the foundation does not include concrete poured on days when work was stopped by DOB, or concrete poured on the Enactment Date; and

WHEREAS, in support of this statement, the applicant has submitted executed contracts for the foundations, invoices and cancelled checks, affidavits by the construction manager and architect, a Pile Identification Plan and Pile Driving Reports certified by an engineer; concrete delivery tickets, a foundation plan, a foundation survey dated September 5, 2008, the construction log referenced above, and photographs of the foundation work as of the Enactment Date; and

WHEREAS, the applicant has also submitted financial documents indicating that the applicant incurred $769,020 or approximately 65 percent of the total estimated foundation cost of approximately $1.18 million as of the Enactment Date; and

WHEREAS, the applicant represents that both the more complex foundation elements as well as the most costly foundation elements have been completed; and

WHEREAS, the applicant states that 138 days of foundation work have been completed and that 22 days of work remain, constituting 14 percent of the workdays necessary to complete the foundation; and

WHEREAS, in support of its contention that amount of work performed on the foundations of the subject site is consistent with previous Board vestings under ZR § 11-331, the applicant cites to decisions in BSA Cal. Nos. 168-05-BZY, 349-04-BZY and 202-08-BZY; and

WHEREAS, in BSA Cal. No. 168-05-BZY, the applicant had completed underpinning and a substantial share of the footing and strap beams but had installed no foundation walls; and

WHEREAS, in BSA Cal. No. 349-04-BZY, the applicant had completed footings and rebar and had poured 21 percent of the concrete but had installed no foundation walls; and

WHEREAS, in BSA Cal. No. 202-08-BZY, the applicant had driven all the piles but had installed no pile caps, mat slab or vibration isolators;

WHEREAS, the applicant represents that the aggregate of the foundation work completed at the subject site exceeds the foundation work performed in the cited cases; and

WHEREAS, the aggregated foundation work includes work performed pursuant to an earlier permit issued for construction of a Use Group 5 transient hotel at the site which the applicant contends should be included in the measure of the completion of the foundation prior to the rezoning; and

WHEREAS, the applicant explains that on October 17, 2005, New Building Permit No. 402097529-01-NB was issued to the owner by DOB authorizing construction of a three-story transient hotel with two sub-cellars at the subject site (the “First Permit”); and

WHEREAS, the applicant states that excavation commenced on October 25, 2005 and 240 piles were driven between December 29, 2005 and January 6, 2006; and

WHEREAS, the applicant further states that after piles were driven at the site, the water table was found to be higher than anticipated and the plans were revised to eliminate one proposed subcellar level; and

WHEREAS, after approval of the revised plans on August 27, 2007, New Building Permit No. 402590665-01-NB (the “Permit”) was issued by DOB permitting construction of the Building on May 15, 2008; and

WHEREAS, an affidavit by the architect states that the foundation piles were driven pursuant to a foundation plan approved under the First Permit and that a foundation plan incorporating the piles was approved under the Permit; and

WHEREAS, the applicant states that Pile Driving Reports certified by a professional engineer evidencing that the piles were driven pursuant to the Pile Identification Plan were filed with DOB; and

WHEREAS, the Opposition argues that the work performed under the First Permit should not be considered as it was “faulty/illegal”, as evidenced by the issuance of a stop work order halting work in effect between January 20, 2006 and January 23, 2006; and

WHEREAS, in response, the applicant states that the stop work order imposed on January 19, 2006 was in response to a fence maintenance issue that was corrected and that the First Permit was never revoked; the work performed under the First Permit was therefore valid; and

WHEREAS, the applicant further states that since the First Permit was not revoked and foundation piles authorized by the First Permit were installed prior to the January 19, 2006 stop work order, that the work performed and expenses incurred under the First Permit should be considered by the Board; and

WHEREAS, the Board notes that neither DOB, nor the Opposition, has asserted that the work performed under the First Permit was inconsistent with the approved plans, the Permit or the Building Code; and

WHEREAS, the Board therefore concludes that the foundation work performed pursuant to the First Permit should be included in the measure of the completion of the foundation prior to the Enactment Date; and

WHEREAS, the Opposition also argues that work on the foundation was performed during the period when a stop work order was in effect and after working hours and should not be considered in evaluating whether substantial progress was made; and

WHEREAS, in response to the concerns raised by the Opposition, at hearing the Board asked the applicant to provide a detailed chronology of work done pursuant to valid permits; and

WHEREAS, based on a detailed chronology submitted by the applicant, the Board notes that stop work orders halting construction of the Building were in effect from May 21, 2008 to June 10, 2008, from July 23, 2008 to August 6, 2008 and from September 5, 2008 to the present; and

WHEREAS, the initial analyses of work completed included (i) concrete pours during August 4, 2008 and August 6, 2008 during a stop work order, based on a representation that DOB gave verbal permission to continue work; and (ii) a concrete pour on September 4, 2008, the date of the rezoning; and

WHEREAS, the applicant subsequently revised the analysis deleting the work performed on August 4, 2008 and August 6, 2008, and the work performed on the Enactment Date; and

WHEREAS, the Board notes that the Opposition was not able to document any additional after-hours work; and

WHEREAS, as to expenditures, the Opposition contends that the canceled checks submitted by the applicant are confusing and fail to establish that substantial progress was made on the foundation as ofthe Enactment Date; and

WHEREAS, the Board notes that the foundation survey, concrete delivery slips, photographs, and pile reports provide sufficient and credible evidence that excavation was completed and substantial progress was made on the foundation as of the Enactment Date; and

WHEREAS, the Board further notes that it has not relied on canceled checks in making the determination herein, as there is sufficient evidence substantiating the amount of work done, as well as the costs associated with that work from the contracts, as well as the other evidence in the record; and

WHEREAS, the Board has reviewed all of the applicant’s representations and the submitted evidence and agrees that it establishes that substantial progress was made on the required foundation as of the Enactment Date; and

WHEREAS, the Opposition additionally argues that the proposed sewer system does not comply with Department of Environmental Protection (“DEP”) requirements; and

WHEREAS, a response by the applicant states that DEP initially approved a dry well system to dispose of storm water but that after the discovery of the high water table, DEP required that a retention and release system be designed to mitigate the impacts of storm water runoff into City sewers; and

WHEREAS, the applicant further states that DEP has reviewed and approved the proposed site’s proposed retention and release sewer system for the site; and

WHEREAS, the Opposition also argues that the application should be denied because the proposed hotel will be incompatible with the surrounding residential community and may attract illegal uses; and

WHEREAS, however, if the owner has met the test for a vested rights determination pursuant to ZR § 11-331, the owner's property rights may not be negated merely because of concerns about neighborhood character and speculation of future illegal activities; and