The New Levelers: A state judge reinterprets an old law to force a developer to demolish his building.

City Journal ^ | February 20, 2020 | Roderick Hills

[karpov]

A state judge has revoked, retroactively, a building permit at 200 Amsterdam on Manhattan’s Upper West Side. If the decision holds, the developer might have to lop off almost half of the 668-foot tower. The Municipal Art Society and other opponents of “super-tall” buildings are elated. But Judge W. Franc Perry’s ruling is likely not only wrongheaded but also a threat to basic fairness and legal predictability.

The problem: the developer received his building permit under an official guidance on the definition of zoning lots dating to 1978. That guidance may have been in error—the Department of Buildings (DOB) has since drafted, but not yet adopted, a new policy—but developers built 28 other buildings since 1978 in reliance on it. The 200 Amsterdam developer followed the rules, applying for and receiving a building permit in 2017 based on the city’s official view of the law. After dozens of prominent politicians protested, the DOB recanted, saying that its 1978 view was mistaken.

Is it fair or sensible to enforce the DOB’s new view of the law against a developer who has invested hundreds of millions of dollars in reliance on the DOB’s old view? The Board of Standards and Appeals (BSA), the city agency in charge of interpreting the 1978 Zoning Resolution, argued that such a retroactive enforcement of a new interpretation against someone who took the DOB at its word was unjust. Judge Perry disagreed. He ruled that the BSA had no power to avoid such retroactivity. If the old view of the law was wrong, then the correct view must be enforced—against everyone.

This ruling, however, ignores the BSA’s discretion to decide that a new view of the law should be enforced only prospectively, “grandfathering” in those who had made commitments based on the old understanding.

[Gil4]

“but before construction began” /// That is in conflict with the title of the article.

It appears the legal challenge came before construction began. The decision came after construction was complete. No conflict.

[Svartalfiar]

This ruling, however, ignores the BSA’s discretion to decide that a new view of the law should be enforced only prospectively, “grandfathering” in those who had made commitments based on the old understanding.

Well they pretty much have to grandfather them in, or is the judge planning on ordering the 28 other buildings to also be demolished?