After arson, a dispute over rebuilding

The former owner of a Beacon boardinghouse that burned down in 2023 has sued the city, accusing its Zoning Board and a former building inspector of causing him to lose money on his investment.

The lawsuit, filed April 24 in federal court, alleges that the city illegally canceled a building permit for then-owner Yeshia Berger's property at 925 Wolcott Ave.

Specifically, it says, the city "extinguished a vested, permit-backed, legal preexisting non-conforming, constitutionally protected use through an unreasonable interpretation of an ambiguous ordinance after affirmatively authorizing its continuation and reduction."

Along with the city, the suit names the Zoning Board of Appeals and former Building Inspector Bruce Flower as defendants.

The sequence of events that led to the lawsuit was unusual.

On the morning of Jan. 3, 2023, a former tenant, Brian P. Atkinson, started a fire that destroyed the 4,136-square-foot, three-story structure. Atkinson had been due in court that morning to protest eviction proceedings; instead, he walked to the Beacon Police Department and turned himself in, authorities said. He pleaded guilty later that year to third-degree arson and was sentenced to 4 to 12 years in state prison.

The boardinghouse had been a longstanding "legal non-conforming use" allowed in an area zoned for single-family homes. Before the fire, Berger had received a permit to convert the 16 single-occupancy rooms into nine larger units. But in July 2023, the Zoning Board upheld Flower's determination that Berger must rebuild after the fire in accordance with the zoning code.

Flower said he relied upon a provision requiring structures that have been more than 50 percent destroyed, such as by fire, to be rebuilt according to current standards — in this case, as a single-family home.

Even the vote by the five-member Zoning Board was complex. Its members first reversed two of Flower's determinations: that the non-conforming use had been "removed" by the fire and that a non-conforming building cannot be "structurally altered during its life" if the alterations amount to more than 25 percent of its value.

The board did agree that the structure should be rebuilt only under current regulations; Berger would have been allowed to proceed only if the Zoning Board had reversed all of Flower's determinations.

In response, Berger asked the board to consider two types of variances, but withdrew his appeal before a decision was made. According to the lawsuit, he was forced to sell the parcel for "less than half" of the $650,000 he paid in 2022. He argues that the city code is "at best, ambiguous" and should have been "interpreted in a light most favorable to the property owner."

Berger said he sold the property in February 2024 to Faust Design Build, "a luxury designing and building firm" that constructed a single-family home. Dutchess County records show that the parcel was last sold in October 2024 for $300,000.

Many Beacon residents opposed Berger's rebuilding plans, speaking out at public hearings and submitting petitions to the Zoning Board. Some said fights and other disturbances had taken place at the site for years; others suggested that Berger planned to construct a "luxury building."

In his 35-page complaint, Berger said that the proposed reduction in units would have decreased traffic "and any other impacts." The units would have continued to be single-room occupancies; all he "was trying to accomplish was to rebuild the building for affordable housing consistent with city code," he said. Instead, "it is clear that the city succumbed to generalized community opposition."