Greenbaum v. Board of Estimate

148 A.D.2d 92, 544 N.Y.S.2d 4, 1989 N.Y. App. Div. LEXIS 9368
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 6, 1989
StatusPublished
Cited by1 cases

This text of 148 A.D.2d 92 (Greenbaum v. Board of Estimate) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenbaum v. Board of Estimate, 148 A.D.2d 92, 544 N.Y.S.2d 4, 1989 N.Y. App. Div. LEXIS 9368 (N.Y. Ct. App. 1989).

Opinion

OPINION OF THE COURT

Carro, J. P.

In 1983, petitioners applied for a zoning variance of a residentially zoned parcel of property, located near JFK International Airport, to permit the construction of a warehouse to be used by airline companies. The subject property, which was irregular in shape, was zoned for residential use, as was most of the property abutting three sides of it. However, the property to the east of the subject property was zoned for manufacturing use, and upon it were warehouses, a gasoline service station and a tire store; in addition, the Long Island Railroad runs above ground to the east of the subject property, at a distance of 200 or more feet. Baisley Boulevard, the southern boundary of the subject property, is a main thoroughfare.

The instant application for a variance is only one of several made by petitioners. In 1969, petitioners were denied a variance allowing the construction of a one-story magazine warehouse with accessory offices, loading and parking. At that time, the Board of Standards and Appeals (BSA) denied the application because it was unable to make certain requisite findings, pursuant to New York City Zoning Resolution § 72-21 that (a) there were unique physical conditions peculiar to the zoning lot; (b) such physical conditions would prevent the owner from realizing a reasonable return; and (c) that the proposed variance would not alter the essential character of the neighborhood. In 1970, the BSA again denied an application by petitioners, for substantially similar reasons.

In 1982, petitioners filed a new building application in order to build a warehouse, although there was no variance. This application was subsequently denied because the property was not zoned for commercial use. Petitioners filed the instant application for a variance, allowing for a commercial warehouse with a loading dock, parking facilities, and six semidetached houses, approximately one month later. Shortly thereafter the Community Board recommended that the application be disapproved because the surrounding area was residential in nature. Petitioners subsequently amended the application so as to exclude that portion of the request regarding the [94]*94residential dwellings, and for the variance to apply only to a portion of the subject property.

The BSA conducted public hearings regarding the proposed variance. Residents of the area submitted formal objections and testified in opposition to it. Among the reasons they cited, in addition to the desire to maintain the residential nature of the area, were concerns regarding increased heavy trafile near a local school, the anticipated increase in noise level and congestion that would result from a commercial warehouse. Also cited was the potential loss of value of homes in the area.

When petitioners’ architect was asked if the variance requested constituted the minimum necessary to afford relief of any hardship, he asserted that airline companies were interested in the subject property because of its proximity to JFK International Airport, and that the warehouse had to be of a "sufficient size”, to accommodate the companies. He did not indicate that any other possible use requiring a lesser or no variance had been recently explored.

Evidence submitted as to attempts to find uses other than as a commercial warehouse was sparse; furthermore it was stale, dating back to 1967 and 1968, when the site was declared unsuitable for a hospital and a yeshiva, respectively. Petitioners also submitted a conforming use analysis for 28 one-family homes, but asserted that this was economically unfeasible, although there was evidence indicating that such a project would yield a profit in excess of 10%.

The BSA adopted a resolution granting petitioners a variance permitting the construction of a warehouse. Despite prior decisions to the contrary, the BSA determined that the evidence was sufficient to sustain all findings required by New York City Zoning Resolution § 72-21. Community Board 12 appealed to the Board of Estimate (BOE), which accepted jurisdiction.

Following a public hearing, where grave concern was expressed by a County Assemblywoman and District Councilman, as well as by residents, the BOE, by a vote of 8 to 3, adopted a resolution disapproving the decision of the BSA. The BOE concluded that petitioners failed to establish unique physical conditions which inherently give rise to any need for a use variance. The BOE further determined that the record before the BSA did not reflect that there was substantial evidence to establish that there was no reasonable possibility that a conforming use of the lot would not bring a "reasonable [95]*95return to the owner”. In addition, the BOE found the record did not contain substantial evidence that the proposed variance would not alter the "essential nature of the neighborhood or district” or "substantially impair the appropriate use or development of the adjacent property”. Finally, the BOE noted that the record failed to support the BSA’s finding that the variance was the minimum necessary to afford relief for any alleged hardship.

In a proceeding brought pursuant to CPLR article 78, petitioners sought to have the determination of the BOE annulled. The IAS court granted the petition and summarily held that there was substantial evidence to support the BSA’s determination; the court further concluded that the BOE exceeded its authority and power to review when it overturned the BSA grant.

The instant appeal followed.

It is undisputed that the BOE has a limited and narrowly defined scope of authority. As the Court of Appeals has stated: "The Board of Estimate’s review powers are limited to whether there is substantial evidence to support the Board of Standards and Appeals determination (NY City Charter § 668 [c]).” (Matter of 97 Columbia Hgts. Hous. Corp. v Board of Estimate, 67 NY2d 725, 727; Matter of Galin v Board of Estimate, 72 AD2d 114, 115, affd 52 NY2d 869.) In this regard, the New York City Charter § 668 (c), provides: "In the case of an application to determine and vary the zoning resolution, review by the board of estimate shall be limited to an administrative determination as to whether the decision of the board of standards and appeals under each of the specific requirements of the zoning resolution was supported by substantial evidence before the board of standards and appeals. The board of estimate may approve or disapprove such decision and shall provide written findings and an explanation of the basis for its decision under the zoning resolution” (emphasis added).

Thus, the question at hand is whether the instant application for a use variance was supported by substantial evidence meeting each of the requirements of the Zoning Resolution. The five factors, each and every one of which must be met before a use variance may validly be granted, as enumerated in New York City Zoning Resolution § 72-21 are (a) unique physical characteristics which would create unnecessary hardship in complying with the Zoning Resolution; (b) no reasonable possibility that the development of the zoning lot in strict [96]*96conformity with the Zoning Resolution would not enable the owner to realize a reasonable return; (c) that the variance will not alter the essential character of the neighborhood or district or be detrimental to public welfare; (d) that the owner has not created the practical difficulties or unnecessary hardships claimed in support of the variance; and (e) that the variance is the minimum

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Bluebook (online)
148 A.D.2d 92, 544 N.Y.S.2d 4, 1989 N.Y. App. Div. LEXIS 9368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenbaum-v-board-of-estimate-nyappdiv-1989.