§ 1-12 Disposition of Applications

§ 1-12.1 Final Determination

A final determination of the Board will be in the form of a written resolution. Such resolution will state the rule, regulation, order, requirement, decision, or determination upon which the application has been made, and will set forth the Board's findings and conclusion.

The Board may reverse, affirm, in whole or in part, or modify a rule, regulation, order, requirement, decision, or determination, or it may dismiss an application for lack of jurisdiction or prosecution, or as moot.

An application must receive three (3) affirmative votes to be granted. If an application fails to receive three (3) affirmative votes, the action will be deemed denied. A resolution denying or granting any application will be formally entered on the record. If, however, a Commissioner or Commissioners are absent at the roll call and the absentee Commissioner(s) is eligible to vote, the Chair may defer the vote to a future hearing.

§ 1-12.2 Withdrawal

The Board may consider a request to withdraw an application made by the applicant at any time before the Board's final determination.

If the request to withdraw is made before the hearing has been closed, the Board may permit withdrawal without prejudice upon request.

If the request to withdraw is made after the hearing is closed, the Board may permit withdrawal without prejudice for good cause only. If it determines that proper enforcement or public policy would thereby be served, the Board may refuse the withdrawal or it may condition the withdrawal with prejudice on the refiling of a future application for the same relief.

If the request to withdraw the application is made, and a motion to vote is pending, such motion will have precedence.

§ 1-12.3 Dismissal

The Board may, in its discretion, dismiss an application for failure to prosecute, with or without prejudice, depending on the circumstances of the application. Further, the Board may, at its discretion, dismiss an application where a defect in the application has not been corrected or where an incomplete application has not been completed in a timely manner. The executive director will send out a dismissal letter informing the applicant that the application will be dismissed if the requisite correction or information is not forthcoming within thirty (30) days of receipt of such letter. The Board may grant an extension to the thirty (30) day period upon request in writing for additional time to correct or complete an application, provided that the applicant presents reasonable circumstances for delay and provides a timetable for a subsequent submission. The applicant will be deemed to have received the letter five (5) business days after the date of transmittal of such letter.

Dismissals will be in the form of a letter signed by the Chair or the executive director. However, any dismissal action to be taken within one (1) year after the date of mailing of the Board's notice of comments will be by a vote of the Board at a public hearing after proper notice to the applicant.

§ 1-12.4 Reargument

The Board will not grant a request to reargue a case which was denied, dismissed, or approved unless the applicant shows that the Board misapprehended the relevant facts or misapplied any controlling principles of law, including the Zoning Resolution.

In all cases, the request for reargument must be made on the SOC Form stating the reasons for the request, and must be accompanied by necessary supporting documents and/or plans. The Chair and executive director will schedule a hearing date when the Board will review the request for restoration to the calendar. The executive director will inform the applicant and, if different from the applicant, the owner of the subject property, of the hearing date at least twenty (20) days in advance of the public hearing. If, on a motion of the Chair adopted by three (3) affirmative votes, the Board grants a request for a reargument, the case will be placed on the appropriate calendar and scheduled for reargument.

§ 1-12.5 Rehearing

The Board will not grant a request to rehear a case which was denied, dismissed, or withdrawn with prejudice unless: (1) substantial new evidence is submitted that was not available at the time of the initial hearing, (2) there is a material change in plans or circumstances, or (3) an application is filed under a different jurisdictional provision of the law.

In all cases, the request for rehearing must be made on the SOC Form, must state the reasons for the request, and must be accompanied by necessary supporting documents and plans. The Chair and the executive director will schedule a hearing date when the Board will review the request for restoration to the calendar. The executive director will inform the applicant and, if different from the applicant, the owner of the subject property, of the hearing date at least twenty (20) days in advance of the public hearing. If, on motion of the Chair, adopted by three (3) affirmative votes, the request for a rehearing is granted, the case will be placed on the appropriate calendar and scheduled for a rehearing. The Board, if appropriate, may direct the applicant to file a new application with the requisite application forms and fees. All rules of notice as required by these Rules for the original hearing of the case must be followed.

§ 1-12.6 Board Review of Decision

In accordance with § 666(8) of the Charter, the Board may, for good cause, on its own motion at a public hearing, review any decision that it has made and may reverse or modify such decision, but no such review will prejudice the rights of any person who has in good faith acted thereon before it is reversed or modified. The Board will hear the motion to review on the SOC calendar after notice by the Board to the applicant and the owner of the subject property. The Board at its discretion may elect to review such decision on the case's original calendar if deemed appropriate.

§ 1-12.7 Court Review of Decision

Pursuant to § 25-207 (Certiorari) of the New York City Administrative Code, any person or persons jointly or severally aggrieved by any decision of the Board upon appeal or review made pursuant to § 666 of the Charter, may present to the Supreme Court of the State of New York a petition duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such petition must be presented to a justice of the Supreme Court of the State of New York or at a special term of the Supreme Court within thirty (30) days after the date the Board has filed a signed decision in its office.

§ 1-12.8 Compliance

In accordance with § 666(11) of the Charter, the Board may, at its discretion, and upon due notice of the hearing, revoke or modify variances or special permits previously granted under the Zoning Resolution when it finds that the terms or conditions of such grants have been violated. The Board will notify the property owner or the owner's representative of a hearing at least twenty (20) calendar days before the hearing.

§ 1-12.9 Board Resolution

The determination of the Board in each case will be incorporated in a resolution formally adopted and filed at the Board office. The resolution will generally be made available to the public on the day following the date of decision, and will be posted on the Board's website and published in the Bulletin.

§ 1-12.10 Enforcement of Board Resolution

Officials who are charged with the enforcement of the laws, ordinances, and rules relating to buildings in the City of New York, will be bound by the resolutions issued by the Board and, before granting a permit or taking any other action, must see that there are no misstatements as to facts and that the conditions of the resolution are observed. Any administrative official who discovers any misstatement of essential information is required to notify the Board in order that it may take such actions as the circumstances require.

Any member of the public who observes a violation of the conditions of any resolution of the Board may write to the Chair or executive director in order for the Board to determine if the matter should be calendared for a hearing to determine if there has been non-compliance with the resolution in accordance with § 1-12.8 of these Rules.

§ 1-12.11 Minor Amendment of Previous Approvals

After staff review, the Chair may deem minor certain amendments or corrections of previously approved applications, including changes to an approved plan or resolution, provided that such amendments, changes, or corrections substantially comply with the Board's previous approval, and the findings under which such approval was made are not affected by such amendments or corrections. Such amendments or corrections may be approved by the Chair by letter. A request for a letter approval must be made in writing explaining the changes or corrections and accompanied by all relevant information including previously approved drawings and resolution(s) and proposed drawings and resolution changes.

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