Owner Sues City Over Murphy Lane Stop Work Order

Jean D’Agostino, owner of the property that hitherto contained a small barn on Murphy Lane, has filed suit challenging the stop work order on her construction.  The suit filed by attorney  James A. Fauci on behalf of Ms. D’Agostino names city building inspector Stephen Shaw and the members of the Zoning Board of Appeals.  This is a link to the document.   south-alley-llc-notice-of-petition-etc

In addition to the lifting of the stop work order, it seeks damages which include D’Agostino’s legal bills, loss of income due to delay, and damage to the materials left idle on site.

Central to the suit is the argument that the actual approval of the variances granted to Ms. D’Agostino was unconditional.   The document cites the city’s codes as follows:

5.4.4 EXTENSION OR EXPANSION OF STRUCTURE

A. A non-conforming structure may be extended or expanded the proposed extension or expansion does not violate any dimensional requirements other than the current nonconformity.

And

8.3.4 CONDITIONS OF APPROVAL

The ZBA, in granting a use or area variance, shall have the authority to impose such reasonable conditions and restrictions as are directly related and incidental, to the proposed use of the property.  Such conditions be consistent with the spirit and intent of this Chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

See also: 8.5 (D) DECISIONS

The ZBA shall have the authority to impose such reasonable conditions and restrictions as are directly related, and incidental, to the proposed project.

As the people who have been following this blog know, Ms. D’Agostino, in her application for variances asserted that not only was she not going to demolish the existing barn but that to do so would bring harm to the neighborhood.  She therefore committed herself to the conversion of the existing structure.

Mr. Fauci notes that Ms. D’Agostino originally jacked up the barn at considerable expense in order to construct a full basement.  He offers this as proof that it was her honest intention to save the barn.  He then alleges that the condition of the wood in the structure was so deteriorated that it necessitated its demolition.  Unlike his letter of appeal to the ZBA, he does not argue that reusing some of the original materials represented a conversion rather than a demolition.

It is important to note that the original stop work order only referenced the need for a variance to raise the height of the building.  As noted above, Fauci argues that since the height limit for the zoning in that district was sixty feet, there was no need to seek such a variance.  As also noted above, he argues that if the ZBA did not want the building on the lot to be higher thant the original building then they needed to specifically state this as a condition in their approval of variances.

I am not a lawyer but it would appear on its face that the central issue will be the significance of the failure of Ms. D’Agostino to adhere to the strictures of her application to the board upon which they made their decision.  Was Ms. D’Agostino required to maintain the original structure as she had stated in convincing the board to approve her “renovation” ?  Was it necessary in the ZBA’s approval of the variances to include explicit stipulations on height and, in fact, the protection of the original structure?

I would also note that it seems very strange that Ms. D’Agostino did not have an engineer thoroughly inspect the building to determine its soundness before alleging to the ZBA that she would rehab rather than demolish the structure.

Mr. Fauci also documents the confusion and awkwardness (a  charitable characterization) of the building inspector and the ZBA’s handling of this matter.   The fact that the ZBA ended up issuing a full explanation that went far beyond the original explanation many months after the original stop work order and that they were unwilling to have the building inspector explain the reasons for his stop work order when challenged by Mr. Fauci at a public meeting is both accurate and embarrassing.

One can only marvel at the gross mishandling of this project by the ZBA.  In defense of ZBA board members Susan Steer, Keith Kaplan, and James Helicke, they did vote against approving the variances.  The other members of the ZBA created the conditions for this law suit.  They were, unfortunately, assisted by Mr. Shaw.  In his defense, the building department is understaffed.  Still it is apparent that were it not for the neighbors strong opposition, this project would have, in all likelihood, simply gone on to completion.  Mr. Shaw retroactively approved the excavation of the full basement instead of the slab as submitted in the original plan which might have triggered a cleaner stop work order.  This was just another example of the ZBA and building department’s tolerance for “do it and ask for forgiveness later.”  This seems to be standard operating procedure for the ZBA.  Fauci notes the approval of the basement in his suit.  What is quite clear is that there were problems with Mr. Shaw’s correspondence to Ms. D’Agostino that Mr. Fauci is fully exploiting.

One can only hope that in the interest of the neighborhood, the judge will find Ms. D’Agostino’s abrogation of her commitments in her application to the ZBA sufficient to find for the city.