New York Law Review

Tag: Board of Standards & Appeals

  • 9th & 10th Street, LLC v. Board of Standards & Appeals, 10 N.Y.3d 263 (2008): Upholding Permit Denial Based on Doubt of Lawful Use

    9th & 10th Street, LLC v. Board of Standards & Appeals, 10 N.Y.3d 263 (2008)

    A municipal authority may deny a building permit if it reasonably doubts that a proposed structure can be used for a lawful purpose, and the applicant fails to provide sufficient assurances that the proposed use is practicable.

    Summary

    9th & 10th Street, LLC sought a building permit to construct a dormitory in New York City. The Department of Buildings denied the permit because the LLC failed to demonstrate that the building would actually be used as a dormitory, as opposed to an apartment building which would violate zoning restrictions. The New York Court of Appeals reversed the Appellate Division’s decision, holding that the Department’s action was not arbitrary. The Court reasoned that where there is legitimate doubt about the feasibility of a proposed lawful use, the municipality is not obligated to issue a permit and risk the consequences of illegal use or vacancy. This case clarifies the scope of permissible inquiry by municipal authorities when reviewing building permit applications.

    Facts

    9th & 10th Street, LLC acquired a lot in Manhattan restricted to “Community Facility Use,” which included college or school dormitories. The LLC applied for a permit to build a 19-story dormitory that resembled an apartment building. The Department of Buildings interpreted the Zoning Resolution to require an “institutional nexus,” meaning the dormitory had to be operated by or on behalf of a college or school. The LLC proposed leasing the property to University House Corp. (UHC), an entity it created, representing that UHC’s board would be appointed by participating educational institutions. However, the LLC failed to identify any educational institution committed to using the building as a dormitory.

    Procedural History

    The Department of Buildings denied the permit application. The Board of Standards and Appeals (BSA) denied the LLC’s appeal. The LLC then initiated a CPLR article 78 proceeding to annul the BSA’s determination. The Supreme Court denied relief, but the Appellate Division reversed, finding that the permit could not be denied based on a possible future illegal use. The BSA appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Department of Buildings acted arbitrarily and capriciously in denying a building permit for a proposed dormitory, based on doubts about the likelihood of the building actually being used as a dormitory and the applicant’s failure to provide sufficient assurances of such use.

    Holding

    Yes, because where municipal officials reasonably fear that the legal use proposed for a building will prove impracticable, it is not improper to insist on a showing that the applicant can actually do what it says it will do. The Department’s request for proof of an “institutional nexus” was a reasonable measure to ensure the building would be used as a dormitory as represented.

    Court’s Reasoning

    The Court distinguished this case from Di Milia v. Bennett and Baskin v. Zoning Bd. of Appeals, which held that the mere possibility of a future illegal use is not a sufficient reason to withhold a building permit. The Court clarified that those cases involved situations where the proposed initial use was clearly legal and practicable. Here, the Department of Buildings reasonably doubted that the proposed building would ever be used as a dormitory, given the lack of commitment from any educational institution. The Court reasoned that, “It would create needless problems if petitioner built a 19 story building, only to find that it could not use it in a legally-permitted way.” The Court concluded that seeking assurances of a valid dormitory use was prudent and not arbitrary, as it prevented the potential for the building to either violate zoning laws or remain vacant.

  • Matter of Humble Oil & Refining Co. v. Board of Standards & Appeals, 16 N.Y.2d 665 (1965): Remand for Zoning Board Reconsideration Based on New Evidence

    Matter of Humble Oil & Refining Co. v. Board of Standards & Appeals, 16 N.Y.2d 665 (1965)

    A court may remand a zoning board decision for reconsideration when additional evidence surfaces that could bear on allegations of discrimination or arbitrariness by the board, especially when the board indicates it would not object to a reconsideration.

    Summary

    Humble Oil sought a variance and building permits, which were denied by the Zoning Board. Humble Oil then presented additional evidence to the Special Term arguing discrimination and arbitrariness. The Court of Appeals reversed the Appellate Division and Special Term decisions, remitting the case to Special Term with instructions to remand the matter to the Zoning Board of Appeals. The court reasoned that the additional evidence presented to the Special Term warranted reconsideration by the Board, especially since the Board indicated it wouldn’t oppose it, to ensure a full and fair determination based on all relevant information.

    Facts

    1. Humble Oil & Refining Co. applied to the Zoning Board of Appeals for a variance and building permits.
    2. The Zoning Board denied Humble Oil’s application.
    3. Humble Oil then presented additional matter (evidence), via affidavit and exhibit, to the Special Term, alleging discrimination and arbitrariness on the part of the Board.

    Procedural History

    1. The Special Term initially ruled against Humble Oil.
    2. The Appellate Division affirmed the Special Term’s decision.
    3. The Court of Appeals reversed the Appellate Division and the Special Term, remitting the proceedings to the Special Term with the direction to remand to the Zoning Board of Appeals for reconsideration.

    Issue(s)

    1. Whether the introduction of new evidence at the Special Term level, potentially indicating discrimination or arbitrariness by the Zoning Board, warrants a remand to the Board for reconsideration of the application for a variance and building permits.

    Holding

    1. Yes, because the additional evidence presented to the Special Term may have a bearing on a charge of discrimination and arbitrariness on the part of the board, warranting reconsideration by the Board, especially where the Board indicated it would not object to such reconsideration.

    Court’s Reasoning

    The Court of Appeals held that the record before the Zoning Board did not justify the petitioners’ application for a variance and building permits. However, the additional matter presented to the Special Term, suggesting discrimination and arbitrariness, warranted further consideration. The court emphasized fairness and completeness in administrative decision-making. The court considered the Zoning Board’s lack of objection to reconsideration as a key factor. The court cited Matter of Berg v. Michaelis, 21 A.D.2d 322, aff’d, 16 N.Y.2d 822, as precedent supporting the remand for reconsideration. The court also references Matter of Colonial Liq. Distrs. v. O’Connell, 295 N. Y. 129, 141 and People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, 289-291. The ruling emphasizes the importance of a complete and fair administrative record, particularly when allegations of bias or arbitrary action are raised. The court determined that Humble Oil should have the opportunity to present this matter to the Board for its consideration before an ultimate determination is made.