Reed v. Board of Standards & Appeals

McAvoy, J. (dissenting).

An order was made at Special Term New York county, on April 17, 1929, which quashed an order of certiorari which had been theretofore issued, on motion of the petitioner, pursuant to the Civil Practice Act (§ 1283 ei seq.) and section 719-a of the Greater New York Charter (Laws of 1901, chap. 466, added by Laws of 1916, chap. 503, as amd. by New York Local Laws of 1925, No. 13), which order was granted for the purpose of reviewing the determination of the board of standards and appeals of New York city. Prior thereto, and in July, 1927, the board had adopted a resolution denying an. application of the Wilthan Realty Corporation for a variation of the provisions of the use district regulations of the Building Zone Resolution,- which affected certain property owned and leased by it, fronting on Third avenue for the entire block between Seventy-first and Seventy-second streets on the west side of the avenue. -

Permission was sought by the Wilthan Realty Corporation to extend, from the business district into the residence district on East Seventy-first and Seventy-second streets, a portion of its theatre proposed to be built on the block front. It was proposed to extend the building thirty-three and four-tenths feet on East Seventy-first street, and thirty feet on East Seventy-second street.

On July 17, 1928, the board of standards and appeals adopted a resolution granting a renewal application of the intervenor Wilthan Realty Corporation, affecting the same premises, and allowed a variation of the use district regulations affecting the premises, and authorized the realty corporation to construct a moving picture theatre and vaudeville house, occupying in part a plot which is in the residence district. Thereupon the petitioners sought an order of certiorari, which was granted and which directed the board to make answer and return within twenty days. The answer was thereafter filed in February, 1929.

Respondent board then moved to quash the certiorari order issued on August 21, 1928, and this motion was granted in April, 1929.

These appellants are the property owners who occupy the area affected by this granting of permission to operate a moving picture theatre and vaudeville house in the neighborhood. They seek to reverse the order quashing the order of certiorari and are asking for an affirmance of the decision of the superintendent of buildings of the borough of Manhattan, made in January, 1928, which denied the application of the respondent Wilthan Realty Corporation, because it violated the provisions of the Building Zone Resolution.

The premises upon which the moving picture theatre is proposed to be erected are the entire block front on the west side of Third avenue between Seventy-first and Seventy-second streets; and plots on East Seventy-first and Seventy-second streets extending 133.4 feet and 130 feet, respectively, west of Third avenue.

Third avenue is within the business district; and East Seventy-first and Seventy-second streets, from a point 100 feet west of Third avenue to a point 100 feet east of Lexington avenue, are within residence districts. Lexington avenue, between Seventy-first and Seventy-second streets, is within a business district.

The two lots on East Seventy-first street are wholly within the residence district, which is proposed to be invaded by this theatre. One plot on East Seventy-second street is also wholly within a residence district; the other plot on East Seventy-second street is divided so that the easterly half of the twenty-foot plot is in the business zone, and the westerly half in the residence zone.

Both Seventy-first and Seventy-second streets are improved on both sides with either private dwellings or high-class apartment house improvements, which make the neighborhood desirable for private residential purposes; and there are no non-conforming uses in East Seventy-first street, being improved on both sides with four and five-story private dwellings; and on East Seventy-second street the only non-conforming use in the area is a small one-story bank building on the south side, which was built in 1906 and was erected prior to the zone commission’s laying out the area in question as a residence district; Even those frontages on Lexington avenue, at the northeast and southeast corners of East Seventy-first street, and the northeast and southeast corners of East Seventy-second street, although within the business zone, are a.t present being used for residential purposes, and improvements thereon have been made within the last three or four years.

It is appellants’ claim that if the proposed invasion is permitted, the quiet, residential character of these two streets will be destroyed, values of property diminished, marketability as residences lessened, and the further development of this section as a residential area would be suppressed. There will be exits] from the proposed theatre on East Seventy-first and Seventy-second streets, wholly within the residential area, which will discharge several thousand people into the zone daily and nightly. This will change the character of the neighborhood as it has been developed since the former application was denied.

The property in the business area is perfectly adaptable for business uses and would show a sufficient yield on the investment if used solely for business purposes, and the property in the residential area, already improved for residential uses, would return an appropriate sum on an investment if used for either private dwellings or for conforming apartment house uses. The denial of the variation would, therefore, be no hardship to the Wilthan Realty Corporation, the respondent, other than a restriction against the building of a larger theatre, since a smaller one with less capacity will be less profitable.

On the prior application, in July, 1927, the denial was based upon the fact that the board deemed that the applicant was not entitled to relief under subdivision c of section 7 of the Building Zone Resolution, on the ground of unnecessary hardship and practical difficulty. No change in the facts and conditions of the property or neighborhood has been had, which would warrant a change of its ruling at the time the present application was made. Without such new facts or change in the condition of the neighborhood, the board could not review its own findings and determination and reverse its prior rulings, having no evidence to warrant the granting of the application upon the grounds of necessity, emergency or hardship, only the fact that this business district use will be more completely realized if part of the residential area may be included within its scope.

Since this proceeding at Special Term was a motion to quash a certiorari order, such motion is in the nature of a demurrer, and asserts that the petitioner has no right to any relief, assuming all the facts alleged to be true. Under this rule the questions of fact, to wit, that there were no new facts and no changed conditions or circumstances, and that there was no new evidence, and that there was no material change in the new application when compared with the former, all of which matters were alleged in the petition, should have been deemed to be true.

The appellants also alleged that the board was biased, prejudiced and hostile; that they did not have a fair and impartial public hearing, and that the decision was made arbitrarily and capriciously. These allegations also must be deemed to be true on a motion to quash, and the court could not dismiss the proceeding nor quash the same without a hearing to these petitioners.

We think, too, that the board had no power to entertain or grant the renewed application of the Wilthan Realty Corporation, because of its denial of the prior similar application in 1927. The mere moving of a lobby, the changing of the location of a sign, the rearranging of a stair front, decreasing the invasion of the building in the residential zone on one street, and increasing it on another, are not material changes which alter the merits of the case. The seating capacity is identical; the changes are trifling, unimportant and unessential, and the board was without jurisdiction to entertain the application or to reverse its prior denial.

The rules of the board of standards and appeals provide that no appeal that has theretofore been denied after a public hearing, unless based upon a new decision of the superintendent of buildings on plans which materially change the aspect of the case, can be entertained under the same state of facts. This was another reason for denying the application when brought anew before the board.

Nor do we consider on the merits that the board had power to vary the application of the use district regulations under section 7, subdivision c, of the Building Zone Resolution, since there was no evidence of practical difficulties or unnecessary hardships, and no evidence of any unusual condition or emergency warranting such variation.

Permission under section 7, subdivision c, is for an extension of an existing or proposed building into a more restricted district under- such conditions as will safeguard the character of the more restricted district. The board cannot proceed except as the Building Zone Resolution indicates in section 7, “ in appropriate cases,” after public notice and hearing, and subject to proper conditions and safeguards. There must be also common ownership, and there must be harmony with the general purpose of the Building Zone Resolution.

We conclude that there must also be evidence, to make a case “ appropriate,” to show that there were practical difficulties or unnecessary hardships in the manner of carrying out the provisions of the Building Zone Resolution. Besides, we have held that the decision must be predicated upon considerations of the public health, safety and general welfare. Nothing in this case shows that the board made its decision in conformity with any of these requirements. The power of the board of standards and appeals is confined to variations in special cases to meet some unusual emergency or some unnecessary hardship. (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280.) Whether the property under consideration is more suitable for a prohibited use than a permitted one is immaterial. (Matter of Stillman v. Board of Standards & Appeals, 222 App. Div. 19; affd., 247 N. Y. 599.)

We conclude, therefore, that it was error for the court at Special Term to quash the petition and order herein and to sustain the determination of the board of standards and appeals. For those reasons, the order of the Special Term should be reversed, with ten dollars costs and disbursements; the determination of the board of standards and appeals annulled; and the order of certiorari sustained, with fifty dollars costs against the intervenor, respondent.

Finch, J., concurs.

Order affirmed, with ten dollars costs and disbursements to the respondents against the appellants.