174 N.E. 301 | NY | 1931
The question is whether the Board of Standards and Appeals of the City of New York, respondent, properly granted an application of Wilthan Realty Corporation, intervenor, respondent, for leave to erect a theatre on its plot of land constituting the entire block front on the westerly side of Third avenue, running 130 feet deep on Seventy-second street and 133.4 feet on Seventy-first street. The proposed theatre is to have 204 feet, 4 inches, frontage on Third avenue, with a depth of 125 feet on Seventy-second street and 119 feet, 8 inches on Seventy-first street. Under the Building Zone Resolution all property abutting on Third avenue and for 100 feet westerly on the side streets is within the business district. A portion of the proposed theatre, therefore, extends into the residence district 25 feet on Seventy-second street and 19 feet 8 inches on Seventy-first street.
After a public hearing the application was granted under section 7 (c) of the Building Zone Resolution, which reads as follows:
"§ 7. Use District Exceptions. The Board of Appeals, created by Chapter 503 of the Laws of 1916, may, in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent as follows:
"* * *
"(c) Permit the 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." *132
Conditions deemed suitable by the Board were adopted to safeguard and preserve the general character of the neighborhood and to minimize the inconvenience of having the theatre extend beyond the line of business use.
This action was taken after the fair hearing to which the opposition was entitled as matter of law. (People ex rel. NewYork Queens Gas Co. v. McCall,
The appellant Reed, a neighboring property owner, then obtained an order of certiorari to review the determination of the Board. Others have joined with him as interveners. After the return had been filed to the petition for the order, a motion returnable at Special Term was made on the petition, order, answer and return, for a final order "quashing the order of certiorari issued herein, dismissing the petition herein and confirming the determination of said Board of Standards and Appeals on the merits and for such other and further relief as to the Court shall seem just and proper."
The Special Term made an order confirming the decision of the Board of Standards and Appeals and further ordered "that the said certiorari order be and the same hereby is quashed and all proceedings thereunder dismissed."
The appellants make the point that "the motion being one to quash the petition (order of certiorari), all of the allegations of the petition must be deemed to be true. The petition is clearly sufficient as matter of law." (People ex rel. Erie R.R.Co. v. State Tax Commission,
A motion to quash is in the nature of a demurrer to the petition and is not properly made after the return is filed. If the papers on which the order of certiorari was granted are insufficient in law upon their face, a motion *133
may be made to vacate or quash the order. The hearing at Special Term in this case was not limited to an attack on the petition. It was on the merits. Subject to certain limitations not present in this case "the return must be taken as conclusive and acted on as true." (People ex rel. Lester v. Eno,
The further point is made that the Board had no jurisdiction to entertain the application because it had in July, 1927, denied the application of the respondent-intervener upon the same state of facts and that such decision was final, and not subject to review by the Board itself. Whether or not the function of the Board is to decide cases with finality on the same facts once presented for its consideration, if new plans materially change the aspects of the case, a new application may be made and a new determination had. (See Matter of Riker v. Board of Standards Appeals,
We must assume that the new plans materially changed the aspect of the original case for they do purport to introduce numerous details which were not provided for in the original plans and which are deemed to be material until the contrary is demonstrated. The Board may "give weight to slight differences which are not easily discernible." (Matter of Larkin Co. v.Schwab,
The chief contention of the appellant on the merits is: "that if the premises 182 and 184 East Seventy-second street and 183 and 185 East Seventy-first street are used for residence purposes in conformity with the improvements now actually existing, they would yield a fair return on the investment of the applicant, and that in the event that the owner desired to demolish these premises, the sites upon which the improvements now stand are most adapted for high class apartment house purposes and not for any business use." He thus seeks to refer an application under section 7 (c) of the Building Zone Resolution to the rule frequently stated where the application is made under Building Zone Resolution, section 21 — that is to say, that the Board may not consider the advantage to a single property owner which would come from a modification of the resolution; that whether the property under consideration is more suitable for a forbidden use than for a permitted one is immaterial. (Matter of Stillman v.Board of Standards Appeals,
A theatre 100 feet deep would in a legal sense be no intrusion on the restricted district, however undesirable it might be as a neighbor. Given the proposed extension of a legal building into a more restricted district, two fundamental considerations must prevail in order to enable the Board to proceed under section 7 (c). The general purpose of the zoning resolution must be respected and the more restricted district must be safeguarded. It is probable, at least possible, that a theatre 150 feet deep with main exits on the streets in the restricted district would be, as matter of law, so out of harmony with the general purpose of the zoning *136
resolution as to make it impossible to safeguard the character of the more restricted district. If so, a decision in favor of the applicant might be held an arbitrary act, an abuse of discretion. The question is one of degree. The line must be drawn somewhere. This case may be near the border line. If the Board may permit the building to be erected to be extended a foot or so into the more restricted district, it does not follow that it may permit the building so to be extended indefinitely. The rule of reasonableness must be applied. The Board has a wide scope in the exercise of its discretion whenever the discretion to make variances is granted to it. (Matter of Goldenberg v. Walsh,
CARDOZO, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Order affirmed. *137