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

[*1] Fisher v New York City Bd. of Stds. & Appeals 2008 NY Slip Op 52345(U) [21 Misc 3d 1134(A)] Decided on November 21, 2008 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2008
Supreme Court, New York County

Risa Fisher, Jill Woller, Rosemary O'Brian and West 15th Street Block Association, Plaintiffs,

against

The New York City Board of Standards and Appeals, College of Saint Francis Xavier/ Clothing Workers Center Incorporated, Defendants.



110081/08



ATTORNEY FOR THE PLAINTIFF :

JACK L. LESTER, ESQ.

29 BROADWAY, 9TH FLOOR

NEW YORK, NEW YORK

10006

Phone : (212) 832-5357

ATTORNEY FOR THE DEFENDANT :

CORPORATION COUNSEL

100 CHURCH STREET. 4TH FLOOR

NEW YORK, NEW YORK

10007

Phone : 1-212-788-0303

ATTORNEY FOR THE DEFENDANT :

BRYAN CAVE LLP

1290 AVENUE OF THE AMERICAS

NEW YORK, NEW YORK

10104

Phone : 1-212 541-2000

Attorney for the Defendant

Strook Strook and Lavan

Ross Moskowitz, Joseph Strauss and Rodger Pichardo

212-806-5550

Walter B. Tolub, J.

This is an application to annul and vacate a June 24, 2008, resolution (2008 Resolution) of the Respondent New York City Board of Standards and Appeals (BSA). The resolution approved a joint application of the Clothing Workers Center Incorporated (Union) and the College of Saint Francis Xavier (Xavier)(Collectively, Applicants) to amend a 1963 Zoning Resolution (1963 Resolution). The net effect is to permit the construction of a twenty story hotel on a merged zoning lot [FN1] at 24-40 West 16th Street and 31-35 West 15th Street, New York, NY (Premises or Site).

The question presented to the court is whether the amendment to the 1963 Resolution, reflecting a zoning lot merger, is a discretionary matter requiring the BSA to issue a new variance or whether the amendment was merely technical and could be issued as-of-right.

Petitioners argue that the amendment was discretionary and that the BSA abused its discretion by granting what they claim is a variance amendment. More particularly, the Petitioners argue that the amendment falls within the ambit of the New York City Zoning Resolution §72-21 (Zoning Resolution or ZR) and that the BSA abused its discretion by not requiring an environmental impact statement and making findings in accordance with current procedures.

Respondents argue that the amendments were as-of-right, not variances, that they do not impact or undermine the existing variance on the lot and do not compel and environmental impact statement and the attendant hearings and findings.

The Parties

The West 15th Street Block Association is an unincorporated corporation. It is a community organization representing people living and working in close proximity to the Site.

Petitioner Risa Fisher resides at 36 West 15th Street and claims she would be negatively impacted by the development of a hotel on the Site.

Respondent BSA exists pursuant to § 659 of Chapter 27 of the New York City Charter. The BSA maintains the power to determine and vary the application of the New York City Zoning Resolution in accordance with the New York City Charter, §659.

Xavier is the owner of Lot 72 (Xavier Lot) located at 24-40 West 16th Street. The Xavier Lot fronts on both West 16th Street and West 15th Street between 5th and 6th Avenues. Xavier is a non-[*2]profit religious educational institution.

The Union is a non-profit organization the represents low wage workers in the clothing and textile industry in New York and the greater Tri-State area. The Union has owned Lot 21 for over eighty years. Lot 21 is adjacent to the southeast side of the Xavier Lot and is located at 35 West 15th Street (Union Lot). The Union Lot fronts west 15th Street and does not front West 16th Street.

History

In 1962, in order to allow for the demolition of a major portion of a four-story school and monastery located at 30-40 West 16th Street (Kane Building), Xavier applied for a special permit to modify regulations (Zoning Resolution §§73-641 and 33-342) so that it could erect a six-story school and monastery. On February 19, 1963, the BSA granted Xavier's request for variances with respect to side and rear yard requirements, and granted Xavier a special permit to modify height and setback regulations. The BSA expressly conditioned the 1963 Resolution on the Kane Building's conformity to the site plan submitted with Xavier's original application in 1962.

At the time of the 1963 Resolution, as today, §72-21 of the Zoning Regulations, required that a variance application satisfy the following requirements: (1) there must be unique physical conditions peculiar to the particular premises which are not due to general conditions in the neighborhood; (2) because of these unique conditions, the land in question cannot yield a reasonable return without the variance; (3) the variance, if granted, will not alter the essential character of the area; (4) the practical difficulties or unnecessary hardship claimed as a ground for the variance have not been created by the owner; and (5) the variance is the minimum variance necessary to afford relief. (Zoning Resolution §72-21). As a non-profit organization, Xavier was not required to demonstrate the second criteria, that the subject premises could not yield a reasonable return without the variance (Zoning Resolution §72-21[b]).

The Xavier Lot has an area of 44,216 square feet and a maximum total floor area ratio (FAR)of 6.50, and could therefore be developed with a maximum 287,404 square feet of community facility floor area. The Xavier Lot has a total existing floor area of 165,584 square feet, of which 121,822 square feet is undeveloped.

In 2008, Xavier and Union entered into an agreement to merge the Xavier Lot and the Union Lots. As a result of the zoning lot merger and the existing variance, the Union would purchase a portion of Xavier's excess development rights, and then sell the Union Lot and the additional development rights appurtenant to [*3]it [FN2]. A 20 story hotel would be built on the newly merged lot.

Accordingly, on May 8, 2008, Xavier and Union initiated an application to amend the 1963 Resolution of the BSA for the purpose of updating the site plan approved in 1963 to now reflect the zoning lot merger of the two lots (Application).

Zoning lot mergers are generally effected as-of-right,[FN3] and the BSA was not required to approve the actual merging of the lots. Rather, because the BSA conditioned the 1963 Resolution on the Kane Building's conformity to the site plan submitted with Xavier's original 1962 application, the Applicants in 2008 were required to file an amended site plan reflecting the zoning lot merger. The updated site plan showed the Xavier Lot and the Union Lot as a single larger zoning lot with a lot area of 51,959 square feet. The only issue before the BSA was whether the merger undermined the original variance.

The Application was unanimously approved by the BSA on June 24, 2008 permitting a substituted amended site plan for the one originally approved by the BSA back in 1963 to reflect the merging of the two lots. The Amendment also indicated that the developer of the Adjacent Site had an additional 121,822 square feet of excess development rights [FN4], per the 1963 Resolution, to enable the construction of a twenty story hotel.

Petitioners argue that the BSA abused its discretions by not treating the Application as one for a new variance subject to the requirements of the Zoning Resolution. If the application was one for a variance, the Respondents would have to, inter alia, conduct an environmental impact statement, have a public hearing and evaluate the variance according to the provisions of zoning [*4]Resolution §72-21.

Respondents argue that the Application did not seek a new variance or any relaxation of the requirements of the Zoning Resolution, rather, all the Applicants sought from the BSA was a ministerial act, namely the amendment of a site plan indicating the as-of-right merger of two lots.

In determining whether to treat the Application as one for a new variance subject to the requirements of §72-21 of the Zoning Resolution, the only issue before the BSA was whether the relief sought in the Application affected the basis for the findings made in the 1963 Resolution.

The BSA found that no aspect of the Application undermined the BSA's findings and that the amendment to the 1963 Resolution was a technical one. The BSA approved the Application and held that the proposed increase in the size of the zoning lot and modification of the site plan was appropriate. The BSA found that the substitution of a new site plan reflecting the newly created single zoning lot was technical and that therefore the BSA did not have to apply §72-21 criteria to the limited relief sought in the Application.

By this application Petitioners' seek to annul and vacate the Amendment to the 1963 Resolution.

Discussion

Any discussion of the issues presented requires the understanding of a number of concepts.

First, as a general rule, "[m]ost development in New York City occurs as-of-right. If the Department of Buildings is satisfied that the structure would meet all relevant provisions of the Zoning Resolution and the Building Code, a building permit is issued and construction may begin. No action is required by the City Planning Commission or the BSA" (Zoning Handbook p. 97).

The second concept that requires discussion involves development rights. Development rights generally refer to the maximum amount of floor area permissible on a zoning lot. The difference between the maximum permissible floor area and the built floor area on a zoning lot is identified as the "unused development rights." (Zoning Handbook, p. 104). Under New York City's zoning law, the unused development rights of a lot, often described as "air rights," may be sold, transferred or shifted, as-of-right, to adjacent lots only through a zoning lot merger. (Zoning Handbook, 100, 104). A zoning lot merger refers to the joining of two or more adjacent zoning lots to create one new zoning lot. (Zoning Handbook, p. 104).

The third concept concerns variances and amendments. Sometimes a proposed development cannot proceed without a discretionary action by the City Planning Commission (CPC) or the BSA. These actions may involve the review and approval of zoning [*5]text or zoning map amendments needed to allow a development to proceed at a location or in a manner that zoning presently prohibits (Zoning Handbook p. 97). Some aspects of the planned development may require a CPC or BSA special permit or an authorization from the CPC.

When development of a particular parcel of land pursuant to zoning would be impractical or cause the owner undue hardship, the BSA may grant a variance to the extent necessary to permit a reasonable use of the parcel (Zoning Handbook p. 98). A variance may be granted following a public hearing, but only for a specified period of time so long as the five requirements discussed supra are met (Id.; see variance discussion supra; Zoning Resolution §72-21.)

Zoning Amendments, however, amend the zoning text or zoning map. Unlike a variance, legislative action is not limited to a specific development and generally affects a larger geographic area than a variance (Zoning Handbook p. 96). An amendment is generally unconditional, has no time limit, and affects all property equally within the area subject to the change (Id.) Such amendments are often proposed by the Department of City Planning and other public entities to effect broad change in public land use or to address changing land use conditions (Id.) Amendments may also be proposed by private applicants to facilitate development proposals. The Zoning Resolution is amended frequently, both to keep zoning current and to fulfill the CPC's charter mandated responsibility of planning relating to the orderly growth, improvement and future development of the City (Id.)

Finally, there is the concept of discretionary action. The Zoning Handbook defines a discretionary action as one which requires the review and approval of the CPC or the BSA. Zoning amendments, special permits, authorizations and variances all constitute discretionary actions (Zoning Handbook, p. 105).

The Underlying Application

The Court of Appeals has described the standard of review of administrative zoning decisions as follows:

The crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the interest in public zoning lies. Judicial review of local zoning decisions is limited; not only in our court but in all courts. Where there is a rational basis for the local decision, that decision should be sustained. It matter not [*6]whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them.

(Matter of Crown v. Kern, 41 NY2d 591, 599 [1977] see also Soho Alliance v. New York City Board of Standards and Appeals, 264 AD2d 59 [1st Dept 2000]).

The issue before the BSA was narrow and dealt with whether the relief sought in the 2008 Application undermined the basis for the findings made in the 1963 Resolution (Matter of Bella Visa Apartment Co. v. Bennett, 89 NY2d 465 [1997]). The BSA applied the original criteria to the original 1963 variance application. The Application filed in 2008 did not seek a new zoning variance or a relaxation of the Zoning Resolution requirements. Rather, the only relief sought by the Applicants was a technical amendment to the originally approved site plan reflecting the parties agreement to consummate an as-of-right zoning lot merger of the Xavier and Union Lots (Zoning Resolution §12-10[d]).

The issue of how the merger must impact the neighborhood was not before the BSA. Even if the building of a hotel and its impact was before the BSA, as an as-of-right development, there are serious questions as to whether the issue of impact on adjacent properties could be considered. (383 Madison Associates v. City of New York, 193 AD2d 518 [1st Dept 1993]appeal dismissed 82 NY2d 748 cert denied 511 US 1081).

The BSA found that no aspect of the 2008 Application undermined any of the findings made by the BSA in the 1963 Resolution and such determination was rational. (See generally, Matter of Consolidated Edison Co. Of New York v. Hoffman, 43 NY2d 598 [1978]; Matter of E. 91st St. Neighbors to Pres. Landmarks, Inc., v. NYC BSA, 294 AD2d 126 [1st Dept 2002]; Matter of Jackson v. Zoning Board of Appeals of City of Long Beach, 270 AD2d 267 [2nd Dept 2000]).

Petitioners' remaining arguments have been considered and the Court finds them unavailing. Respondents complied with all the appropriate notification procedures and under the present circumstances, an environmental review was not required.

Accordingly, it is

ORDERED that The Petition is dismissed; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This memorandum opinion constitutes the decision and order of the Court. [*7]

Dated: November 21, 2008

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1:A zoning lot merger is the joining of two or more adjacent zoning lots into one new zoning lot (Zoning Handbook, Appendix A, p. 104).

Footnote 2:As will be further discussed, "[d]evelopment rights generally refer to the maximum amount of floor area permissible on a zoning lot. The difference between the maximum permissible floor area and the built floor area on a zoning lot is called "unused development rights." Under New York City's zoning law, the unused development rights of a lot may be sold and transferred as-of-right to adjacent lots only through a zoning lot merger, except in the case of designated landmarks where such transfer is possible by a special permit without a zoning lot merger. Unused development rights are often described as "air rights." (Zoning Handbook, online version).

Footnote 3:Community facilities of all kinds, including schools and colleges, are allowed as-of-right in all residential districts to accommodate their need to be near the people they serve (Zoning Handbook p. 85). "Most development in New York City occurs as-of-right. If the Department of Buildings is satisfied that the structure would meet all relevant provisions of the Zoning Resolution and the Building Code, a building permit is issued and construction may begin. No action is required by the City Planning Commission or the BSA (Zoning Handbook p. 97).

Footnote 4:See FN2 for Development Rights discussion.