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Dep't of Buildings v. Owners, Occupants and Mortgagees of 96 Logan Street, KingsCounty
OATH Index No. 1924/05 (Aug. 2, 2005)
In this zoning violation (padlock) proceeding, the evidence established illegal use of lot as a public parking lot, for excessive storage of motor vehicles and dead storage of unlicensed motor vehicles, in violation of the Zoning Resolution. ALJ recommends that premises be closed in accordance with terms of stipulation with owner.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF BUILDINGS
Petitioner
- against -
OWNERS, OCCUPANTS AND MORTGAGEES OF
96 LOGAN STREET, KINGSCOUNTY
Respondents
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REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This is a zoning violation proceeding referred to this tribunal pursuant to section 26-127.2 of the New York City Administrative Code (the “padlock law”). The Department of Buildings, petitioner, alleges that the premises at 96 Logan Street in Brooklyn, also known as Block: 4113, Lot: 43, although located in an R4 residence district, are being used as a public parking lot, for storage of an excessive number of motor vehicles and dead storage of at least one unlicensed motor vehicle. Petitioner seeks an order of closure by which the use of the premises would be sealed as a public nuisance pursuant to the padlock law (Pet. Ex. 2). See Admin. Code § 26-127.2 (Lexis.com 2005).
A hearing was held before me on August 1, 2005. The owner and occupants of the premises, Benge and Eileen Gonzales, entered into a stipulation of settlement (the “stipulation”), signed on behalf of both by Mr. Gonzales, with the Department (Pet. Ex. 1) prior to the hearing. Theywere not present for the hearing, which proceeded as an inquest as to the remaining respondents, none of whom appeared.
Petitioner presented sworn proof of service of the petition and notice of the hearing on the named, remaining parties, ABN AMRO Mortgage Group, Inc., assignee, and Standard Federal Bank, mortgagee, in accordance with the mandates of section 26-127.2(c) of the New York City Administrative Code. At the hearing, on the record, I granted petitioner’s motion to withdraw the petition as to Citibank, N.A., which had indicated to petitioner that it has no interest in the property. The matter was adjourned once from July 14th to August 1st, 2005, to allow the Department to determine whether the alleged uses had ceased and also to accommodate a Department inspector, who was ill. Petitioner served notice on all parties of the adjournment and the new hearing date. Petitioner’s proof of service establishes the jurisdictional prerequisites for finding these respondents in default (Pet. Exs. 2, 3). Therefore, the assignee and mortgagee of the premises are in default.
At the hearing, petitioner presented the testimony of Department of Buildings Inspector Lennox B. Williams, who visited the premises; three inspection reports including photographs of the site taken by Inspector Williams; a certification of the Department showing that there is no certificate of occupancy for the site; a title search; the applicable provisions of the Zoning Resolution; a tax map showing the location of the premises; and a zoning map showing the zoning designation of the premises (Pet. Exs. 4-14).
Upon consideration of the evidence in this matter, I find that respondents' use of the premises is in violation of the Zoning Resolution and recommend closure of the premises, consistent with the terms of the stipulation on file.
ANALYSIS
The premises are located in an R4 residence district. There is no current, valid certificate of occupancy for the premises (Pet. Ex. 9). A title search indicates that the premises are a two-family dwelling (Pet. Ex. 10). Inspector Williams inspected the premises on May 7th, 8th, and 9th (Pet. Exs. 4-6). In the course of his on-site inspections, Inspector Williams observed that a lot at the rear of the premises had up to nine parked passenger vehicles and salvaged auto parts. Two vehicles were unlicensed (Pet. Exs. 4-6).
The New York City Zoning Resolution (nyc.gov/planning) (the “Zoning Resolution”), as amended, does not permit commercial uses as of right in residential districts. The uses of the premises as a public parking lot and for dead storage of unlicensed motor vehicles fall within Use Groups 8, 12, and 16 of the Zoning Resolution. Zoning Resolution, App. A: Index of Uses, revised April 8, 1998; Zoning Resolution §§ 32-17 (Oct. 25, 1995), 32-21 (Aug. 12, 2004), and 32-25 (May 22, 1969). Use Groups 8, 12, and 16 are commercial uses permitted as of right only in certain commercial districts, not in an R4 residential area. No valid certificate of occupancy permits the use of the premises as a public parking lot. Zoning Resolution § 12-10 (Dec. 15, 1961). The use of the premises as a public parking lot is not permitted under section 25-412 of the Zoning Resolution, which permits certain accessory uses for residential occupants. No more than two off-street parking spaces are permitted for each dwelling unit in an R4 district. Zoning Resolution § 25-161 (Dec. 15, 1961). Thus, nine parked cars on the lot were excessive.
The owners and occupants admitted in the stipulation (Pet. Ex. 1) that the commercial uses of the premises are not permitted as of right in an R4 residence district and violate the Zoning Resolution.
FINDINGS AND CONCLUSIONS
1.Service of the petition and the accompanying notice of hearing on respondents, the assigneeand mortgagee, was sufficient to entitle the Department to proceed in those respondents' absence.
2.The subject premises, 96 Logan Street, KingsCounty, are used for impermissible commercial purposes in a residential zone, in violation of the Zoning Resolution.
3.The premises can be sealed without impairing access to any residence.
RECOMMENDATION
The padlock law authorizes only one remedy: the closure of the offending premises. I recommend that the Commissioner issue an order of closure, consistent with the terms of the stipulation of settlement, in accordance with the above findings.
Joan R. Salzman
Administrative Law Judge
August 2, 2005
SUBMITTED TO:
PATRICIA J. LANCASTER, FAIA
Commissioner
APPEARANCES:
CHI-KIT SIU, ESQ.
Attorney for Petitioner