In a letter dated July 13th, attorney James Fauci, on behalf of Jean D’Agostino, the owner of 39 Murphy Lane, has responded to the new stop work order issued by the city.
Apparently, the Zoning Board of Appeals will be considering his letter and making a decision as to whether to withdraw the stop work order at their Monday, July 25th meeting (tomorrow night).
I am not a lawyer and I found the arguments he makes somewhat contradictory. As far as I can tell, he asserts that the ZBA in granting his client the variances did not stipulate any special conditions. He argues that they granted her relief regarding the fact that the lot was smaller than the minimum size required by zoning and on other technical issues related to parking and set back. He claims that because they did not stipulate any limit on the height of the building that there was nothing to preclude them from building a taller building as long as it did not exceed the zoning limit for the district which is sixty feet. In effect, he appears to this non lawyer (me) that he disregards the details in the original plan in which the ZBA granted the variances.
On the other hand, he notes that in paragraph 5 the stop work order asserted:
“The resolution granting the variances did not authorize ‘tearing down the barn and starting new’ or the ’removal of the existing barn.’[JK: As stipulated in her application to the ZBA]”
He then offers the following:
“RESPONSE: Neither was done. The applicant has not torn down the barn and started new. All of the materials from the original barn have been preserved and as many as can be safely and effectively used has and will be used.”
First, this seems like a very lawyerly distinction that may hold up in the courts but seems extremely odd to lay people such as myself. The barn was totally torn apart and no longer existed as a building, following which the owner began to build a new structure. It also seems inconsistent with his earlier arguments in that by not being included in the resolution it would seem to fall under his category of conditions not stipulated in the resolution granting variances. In other words, because the ZBA did not stipulate that the barn could not be torn down in their resolution (even though she stated in her application that she would not tear it down), using his earlier logic, it would not be material.
If the ZBA refuses to have the city withdraw its stop work order, I guess we will all find out what the courts think of his argument.
This is a link to the letter from Fauci. Fauci Re New Stop Work
This is an image of the letter.