213 A.D. 289 | N.Y. App. Div. | 1925
The petitioners allege that they are the owners of certain property directly opposite the premises where the proposed garage has been authorized by resolution of the board of appeals, in a business district; and that on or about November 14, 1923, one Harry A. Yarish, an architect, on behalf of the then owner desiring to erect a public garage, made application to the superintendent of buildings for permission to erect and maintain the same. The premises are wholly located within what is known and laid out on the zoning map as a business' district use, where under the Building Zone Resolution of 1916, as amended, which has likewise been superseded by the Building Zone Resolution of 1924, as amended, the use contemplated and desired is prohibited. On November 16, 1923, the superintendent of buildings denied the application as contrary to the then existent Building Zone Resolution, article 2, section 4, whereupon the applicant appealed from said decision of the superintendent of buildings to the board of appeals, setting forth the grounds ■ upon which he based the appeal, and claiming that he would sustain unnecessary hardship in being deprived of the right to erect and maintain the garage, and asking for a modification of the decision “ by the power vested in you under Art. 5, Section 20,” of the Building Zone Resolution of 1916, as amended. The premises are situated on the southeast corner of Nostrand avenue and Winthrop street, Brooklyn, with a frontage of 102 feet 6 inches on Nostrand avenue, and 92 feet 6 inches on Winthrop street. The grounds of alleged hardship, as stated, are that “ owing to the surrounding conditions — garage and large gas holders — property is unfitted for any but garage use and hardship would ensue if not permitted to improve the property as desired.”
Plans were submitted disclosing the nature of the proposed garage, one story in height, non-fireproof construction, with a frontage of 102 feet 6 inches on Nostrand avenue, and 92 feet 6 inches on Winthrop street. No consents were filed, and there were numerous objections filed by adjoining property owners. A hearing was had before the board of appeals on February 29, 1924, at which the applicant and objectors appeared, and the appeal was unanimously denied by the board of appeals by resolution reading in part, that “ Whereas, there was opposition * * * on the part of the neighboring property owners and applicant failed to substantiate his application under the provisions of section 20,” it is “ Resolved, that the decision of the superintendent of buildings be and it hereby is affirmed, and the application be and it hereby is denied.”
Eight months subsequent to the aforementioned denial, on September 10,1924, the owner again applied to the board of appeals for permission to reopen the .proceedings, basing his request upon
The above recital of facts is not disputed; and it is not denied, or if it is denied, the denial is not sustained by the record, that upon the original application by Yarish on behalf of the owner, the other gas tank mentioned as a ground for reopening the proceeding, was specifically mentioned as one of the grounds upon which the original application was based, the letter from Yarish to the board in which he appealed from the decision of the superintendent of buildings, dated December 26, 1923, expressly stating “ and another one now under construction belonging to the Flat-bush Gas Co.; ” and it is further sustained by the application and the statements upon the hearing of the original application “ and there is another one under construction on 125 feet in back of our lots.” This is not subject to contradiction; and the board of appeals in its return to the petition for the order of certiorari, admits that the aforesaid gas tank was in the process of construction at the time of the original application, but it denies that it actually existed; and the record conclusively shows that not only was it the basis of the application and mentioned throughout the hearing, but it was actually considered by the board when the original application was denied.
On October 3, 1924, the proceedings were reopened, the matter set for rehearing November 18, 1924, and many objectors appeared. A vote was finally taken, with four members voting in favor of granting the application to permit the garage, and two opposed, one being absent. The necessary five votes for a decision not being obtained, the matter was put over until December 16, 1924, on which date it was granted by a vote of five to two.
It is not disputed that this application does not come within article 2, section 7, subdivision (e), of the Building Zone Resolution of 1916, as" amended (Cosby’s Code of Ordinances [Anno. 1924], p. 628), which has been revised by article 2, section 7, subdivision (e), of the Building Zone Resolution of 1924, as amended (Cosby’s Code of Ordinances [Anno. 1925], p. 642), concededly there being no stable or garage located in this business district, although there
The petitioners maintain, and it clearly appears from the record, that the board of appeals knew of the construction of this gas tank at the time of the original application; and they further maintain that there was no new evidence presented upon the rehearing and upon which the board reversed its previous denial granting the application.
The petitioners, therefore, contend that the action of the board in purporting to reopen and in granting the application was null and void and of no effect, contrary to the powers conferred on the board by law and its own rules of procedure; that on the rehearing on December 16, 1924, they were not given a fair opportunity to be heard; and that the effect of the resolution granting the application and permitting the erection of the garage, would be to change the restrictions imposed by the Building Zone Resolution making a business district an unrestricted district; that such change is not within the spirit and intent authorized by the Building Zone Resolution, and that said resolution did not reasonably regard the character of the buildings erected in such district, the value of the land, and the use to which it might be put, to the end that such changes “ as purported * * * to be authorized would promote public health, safety and as provided by section 20 of said Zoning Resolution,” all of which is denied by appellants.
As heretofore stated, the original application to the board of appeals was made and denied under the authority invoked and conferred by article 5, section 20, solely; and the second application was made and granted solely under the authority invoked and conferred by this same section; and both applications were solely considered under this section, although said section 20 had under the Building Zone Resolution of 1924, as amended, become article 5, section 21, and was thus existent when the present application was granted by the board of appeals. No other section of the Building Zone Resolution was invoked, nor did this case come within section 7, subdivision (e), concededly, nor any other sub
The grounds stated in the resolution of the board do not state “ practical difficulties or unnecessary hardships,” but that it “ would be a reasonable adjustment of the Building Zone Resolution, granting practical and reasonable use and development of the property under appeal.” It is not shown that the property cannot be reasonably used, for the purpose for which this district is laid out as a “ business district ” for business purposes as the surrounding property is used.
The main point upon which the decision of the court below was based, as I view it, was that the board had no power to reopen the proceeding and review its own determination once made denying the application and then upon the rehearing grant the same, and that, if it had the power, no changed conditions were shown upon the second application.
It conclusively appears from the record that the action of the board upon the original application and upon the second application was based upon the same set of circumstances,' and no new conditions or evidence was disclosed upon the second application which was not shown on the original application and upon which the denial was made. The only denial of this contention by appellants is that the new gas tank, shown on the original application to be in the course of construction, was not actually erected. This was before the board, however, and the statement of the chairman as a reason for reopening, that “ The time it was up before, there was no apparent effort made to establish hardship,” is not sustained, as this was the very ground upon which the original application was made and considered by the board when it originally unanimously affirmed the action of the superintendent of buildings denying the application, which action it subsequently reversed when it granted the application.
The appellants and the intervenor maintain that the board of appeals had the power to reopen and reconsider its previous ruling refusing to vary the Use District Regulations; that it acted legally
The respondents maintain that the board of appeals has no legal right to reopen a cause and review its own decision; that it is a quasi judicial body, and that its decision in this case was clearly judicial and not administrative, as claimed; that the case at bar does not come within any of the exceptions specified in article 2, section 7, of the Building Zone Resolution, and that the board has attempted to take unto itself the authority to vary the.Building Zone Resolution merely by virtue of section 20 (now section 21), which power if it exists — and this, respondents deny — is clearly judicial or quasi judicial and not administrative or ministerial.
The powers of the board of appeals are conferred by the Greater New York charier provisions, sections 242-a, 242-b, 718-d, 718-e, 719, 719-a and 719-b, added by chapter 470 of the Laws of 1914 and by chapter 503 of the Laws of 1916, as amended by chapter 497 of the Laws of 1916 and chapter 601 of the Laws of 1917, and since amended by chapter 295 of the Laws of 1924.
The Greater New York charter (Laws of 1901, chap. 466,, §§ 242-a, 242-b, added by Laws of 1914, chap. 470, as amd. by Laws of 1916, chap. 497, and Laws of 1917, chap. 601; since amd. by Laws of 1924, chap. 295), conferring power upon the board of estimate and apportionment to regulate and restrict buildings, and the location of trades and industries, and for dividing the city into districts and providing for regulations, under which authority the Building Zone Resolution was adopted, provides that “ Said regulations of the board of estimate and apportionment may provide that
Section 718-d of said charter (added by Laws of 1916, chap. 503, as amd. by Laws of 1917, chap. 601) provides for a board of appeals:
“Board of Appeals. § 718-d. The appointed members of the board of standards and appeals and the chief of the uniformed force of the fire department, exclusive of the other members, shall hear and decide appeals from and review any rule, regulation, amendment or repeal thereof, order, requirement, decision or determination of a superintendent of buildings * * *. They shall also hear and decide all matters referred to them or upon which they are required to pass under any resolution of the board of estimate and apportionment adopted pursuant to sections two hundred and forty-two-a and two hundred and forty-two-b of this chapter.”
Section 719 of the charter (as added by Laws of 1916, chap. 503), entitled “ Appeals,” provides:
“ § 719. 1. What appealable. An appeal may be taken to the board of appeals from any order, requirement, decision or determination made by any superintendent of buildings * * *.
“ 2. Who may appeal. * * *.
“ 3. Appeal how taken. * * *.
“ 4. Stay. * * *.
“ 5. Hearing of and decision upon appeal. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the law, the board of appeals shall have power in passing upon appeals, to vary or modify any rule or regulation or the provisions of any existing law or ordinance relating to the construction, structural changes in, equipment, alteration or removal of buildings or structures, or vaults and sidewalks appurtenant thereto, so that the spirit of the law shall be observed, public safety secured and substantial justice done. * * *.”
As I read the above section of the charter, the board of. appeals has power to hear and decide appeals from any order or requirement
Section 719, subdivision 6, of the Greater New York charter (as added by Laws of 1916 chap. 503) reads as follows:
“ 6. Review by board of appeals on its own motion. Any rule, regulation, amendment or repeal thereof and any order, requirement, decision or determination from which an appeal may be taken to the hoard of appeals under the provision of this section, may be reviewed by the board of appeals, upon motion of any member thereof, but no such review of a decision upon an appeal shall prejudice the rights of any person who has in good faith acted thereon before it is reversed or modified. The provisions of this chapter relating to appeals to the board of appeals shall be applicable to such review.”
The appellants maintain that under this section the board of appeals has the power to consider any case of its own free will, whether an appeal has been taken or not, and also has the power to reopen a case previously decided; that this section was intended to clothe the board with continuing power and right to change its decisions whether in substance or detail; and that the court below erred in deciding that said board had no power to reconsider the matter, even though its own rules of procedure provide for a final determination (Board of Standards & Appeals Rules of Procedure, art. 4, § 2), since no rule or regulation can be interpreted as a curtailment of power lodged in the board by the Legislature and the board of estimate and apportionment through legislative authority.
As I interpret the section, a review may be had by appeal from a decision or determination of the superintendent of buildings, upon motion of any member of the board of appeals, but I do not believe it confers the power on the board of appeals to review of its own free will an appeal once heard and determined by the board itself in what appears to me a quasi judicial manner and not in an administrative manner as asserted, where the charter provides certiorari for such purpose. As I view it, this was not a review by the board, but an appeal from a decision made by the superintendent of buildings, which is provided for in section 719 of the charter, where an appeal may be taken to the board from a “ decision or determination ” of the superintendent of buildings, and subdivision
“ 6. No request to grant a rehearing can be entertained unless new evidence is submitted which could not be presented at the previous hearing. * * * ”
I can find no new evidence presented or considered on the rehearing which was not presented and considered upon the original application or appeal; and section 5 of article 4 of the rules does not alter the situation, since this should be read in conjunction with section 6, and the construction contended for would make section 6 of no effect whatsoever.
Mr. Justice Callaghan based his decision in this case upon the case of People ex rel. Swedish Hospital v. Leo (120 Misc. 355), in which he said: “ The Zoning Resolution, having been passed by the sanction of the Legislature,, has the force of a statute, but nothing therein contained gives the board power to reopen and review its acts, after it had once determined and terminated the proceeding. Its jurisdiction is, therefore, limited to hearing and determining appeals. * * * The board of appeals can in no sense act other than in a quasi judicial capacity. It does not perform a single administrative or legislative act. As its name implies it is an appellate tribunal. It passes upon matters formally brought to its attention much the same as courts. * * * If such board were vested with the power of review, the members would always be subject to such charges as are made here, namely, of improper influences which are not disclosed by the record.”
And he further said that if this were not so, a change of opinion on the part of the majority of the board, ■ whether based upon sentiment or on good or on improper reasons, would suffice to warrant the opening of any proceeding finally determined by the board; and the court in commenting upon the decision in People
The appellants maintain that the board had the power to correct, reverse or amend its previous decision, and that it was proper in this case, since the owner would have suffered a grave injustice if its action had been permitted to stand; and that if the board has not such power and “ finality in Zone Law matters were the policy of the law, the board of appeals would cease to exist; ” and that the very essence of the statutes and ordinances is to authorize variations, makp changes, and then further changes, in the applications of the fixed rules; and that the reason for its very existence is to the direct contrary of the legal policy that judgments of courts between private litigants once legally made, must forever stand.
If this is so, the board of appeals is a law unto itself, and I do not know when it could be considered that any action of the board is final, and yet its rules provide for a final determination which the board says cannot curtail powers given by the Legislature.
As I view the authorities cited in the decision of People ex rel. Swedish Hospital v. Leo (supra), the board of appeals, acting as a quasi judicial body, is without power to reopen and rehear a proceeding which has once been determined by it. In any event, in my opinion, it acted as a quasi judicial body in this case, there having been no new evidence submitted which warranted a rehearing .being entertained, under the rules of procedure governing said board, which rules further provide for a final determination (Art. 4, § 2-a): “ The final disposition of any application or appeal before the board of appeals shall be in the form of a resolution either reversing or modifying the order, requirement, decision or deter
Upon the facts disclosed by the record here, I reach the conclusion that the board of appeals had no right to reopen this case and reverse their former decision. No new facts, were disclosed; it simply was a reversal of the prior decision without any reason or justification. This should not be permitted. A "decision once made should only be reviewed, as the law provides, by certiorari.
The order appealed from should, therefore, be affirmed, with costs.
Present — Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ.
Final order unanimously affirmed, with costs.
