Fisher v New York City Bd. of Stds. & Appeals

Fisher v New York City Bd. of Stds. & Appeals 2010 NY Slip Op 01893 [71 AD3d 487] March 11, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Risa Fisher et al., Appellants,
v
New York City Board of Standards and Appeals et al., Respondents.

—[*1] Jack L. Lester, New York, for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for New York City Board of Standards and Appeals, respondent.

Cullen and Dykman LLP, New York (Cynthia B. Okrent of counsel), for College of Saint Francis Xavier, respondent.

Stroock & Stroock & Lavan LLP, New York (Joseph E. Strauss of counsel), for Clothing Workers Center Inc., respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 24, 2008, which dismissed the petition brought pursuant to CPLR article 78 seeking to annul a resolution of respondent Board of Standards and Appeals (BSA), dated June 24, 2008, granting an amendment to a 1963 zoning variance to, inter alia, allow respondent College of St. Francis Xavier to merge its zoning lot with the adjacent lot owned by respondent Clothing Workers Center Incorporated, unanimously affirmed, without costs.

There was a rational basis for BSA's determination that Xavier's application to modify its variance sought only a minor modification in the previously approved variance, that the modification did not change any conditions of the 1963 variance pertinent to the building and side and rear yards authorized by the variance, and that no new noncompliance will be created as a result of the lot merger. Accordingly, BSA's decision to consider the variance as amended without conducting a new analysis pursuant to New York City Zoning Resolution § 72-21 (pertinent to applications for new variances) because the 1963 variance had been granted on findings that the requirements contained in section 72-21 had been satisfied, was not arbitrary or capricious (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 418-419 [1998]; Matter of East 91st St. Neighbors to Preserve Landmarks v New York City Bd. of Stds. & Appeals, 294 AD2d 126 [2002]). Furthermore, because BSA's approval of the application was ministerial in nature, it was not an "action" requiring an environmental impact quality study pursuant to the State Environmental Quality Review Act and/or the City Environmental Quality Review (see ECL 8-0105 [5] [ii]; 8-0109 [2]; Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322, 326 [1993]; see also Matter of 220 CPS "Save Our [*2]Homes" Assn. v New York State Div. of Hous. & Community Renewal, 60 AD3d 593 [2009]). Concur—Mazzarelli, J.P., Moskowitz, Acosta and Renwick, JJ.