DYKER HEIGHTS — A construction project that was set in freeze-frame mode a few months ago — because the area of the project was rezoned as it was being built — was given a go-ahead to continue by Community Board 10.

Since the end of July, the developers have been trapped in a “twilight zone,” caught between two sets of zoning rules, unable to finish their project.

At issue is a site where a long-abandoned and vacant building, regarded as a neighborhood eyesore, was demolished a year ago at 1270 Bay Ridge Parkway and then purchased by developers Thomas Gambino and Salvatore Schirippa.

When workers were laying a foundation, their work was forced to an abrupt standstill when zoning was changed this past summer. The rezoning left them in a lurch for their three-story high project: a six-unit residential building with medical and commercial community offices on the first floor.

The Dyker Heights rezoning became effective on July 25 when the new R4-1 rule took hold, allowing for no commercial overlays. This bans commercial use in a residential building such the one that was under construction at 1270 Bay Ridge Parkway, between 12th and 13th avenues. The area was previously zoned under the R4 rule, which allows for commercial overlay.

Community Board 10, meeting recently at the Shore Hill Community Room in Bay Ridge, took an unusual and rare action — the board approved the project even though it does not fit in with the new zoning rules that forbid first-floor commercial space in a residential building. The developers were finally freed from their netherworld zoning twilight zone.

‘Common Law Vested Right’
To allow the exception to the new rule, the developers sought what is termed “a common law vested right” which allows for the construction to continue under the previous zoning regulation. Their previous building permit, allowed under the former zoning rule but not the new, would be reinstated after lapsing under the new rezoning. The project remains within the 35-feet height limit under the new zoning rule.

The board’s approval for the project, which easily passed except for two votes, now heads to the Board of Appeals and Standards for a final decision on Jan. 15. If approved, the project can move ahead.

“The project is on a 60- by 100-foot lot,” said Joanne Seminara, chair of the board’s Land Use and Zoning Committee. In her report, she said this was “a first-time project for the developers,” and they were not looking for loopholes but were trying to get unstuck from a circumstance not of their own making.

At the board meeting, attorney Sheldon LoBella spoke on behalf of the developers, Gambino and Schirippa, who were present. An appeal had been made at a previous meeting at the Board 10 offices with the Land Use and Zoning Committee, where an attorney told the committee that the developers would be forced to reconfigure their project and get a lesser return on their investment.

The developers filed an application under the “common law vested right” provision, and the Land Use and Zoning Committee backed their application by a vote of 6 to 1. At the board meeting, the attorney said, the developers had lots of letters from neighbors in the area supporting the project.

Backers include Assemblyman Peter Abbate, Councilman Vincent Gentile and the Dyker Heights Civic Association, led by Fran Vella-Marrone.