In the Matter of GEORGE PANTELIDIS, Respondent, v NEW YORK CITY BOARD OF STANDARDS AND APPEALS et al., Appellants, and JOSEPH E. SHEEHAN et al., Intervenors-Appellants.
Supreme Court, Appellate Division, First Department, New York
August 7, 2007
43 AD3d 314 | 841 NYS2d 41
Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered January 17, 2006, which, after a hearing, granted the petition brought pursuant to
The issue that divides this panel is whether, in this
Pursuant to our prior decision, Supreme Court conducted a hearing on whether petitioner, in erecting the glass-enclosed staircase, had relied in good faith on a construction permit invalidated only after the structure’s completion. The evidence presented at the hearing permitted Supreme Court, sitting as trier of fact, fairly to find (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]) that petitioner had erected the disputed structure in good-faith reliance on the subsequently invalidated permit. In view of that finding and Supreme Court’s additional well-supported findings that the remaining relevant criteria
Again, contrary to the dissent’s contention, Supreme Court was not required to remand the matter to BSA after the hearing, notwithstanding that BSA, in denying the variance application, had not discussed two of the five criteria under
We also reiterate that our prior decision in this case (13 AD3d 242 [2004], supra)—which, again, is now binding on us as law of the case—indicates that remand to BSA for what would be the agency’s third hearing on this matter is unwarranted. After all, on the prior appeal, we specifically rejected BSA’s argument that the issue of good-faith reliance should be remanded to the agency for its determination (id. at 243). The dissent, while dismissing as “insupportable” our reading of the decision on the prior appeal, fails to come to grips with the relevant portion of that decision: “Contrary to BSA’s contention, the court was not required to remand the good-faith issue for its determination” (id. at 243 [emphasis added]). As this statement shows, our prior decision resolved precisely the same point now argued by BSA for a second time, namely, whether, upon annulling an administrative determination that has not considered all relevant factors, a court is invariably required to remand to the
The dissent’s view—that BSA’s failure to discuss two of the five variance criteria means that we must remand for consideration of the unaddressed criteria, even though BSA already had an opportunity to consider them—suggests that BSA can protect its rulings by deciding them on a piecemeal basis, giving rise to repeated
Beyond question, judicial deference to administrative authority and expertise is an important principle, as illustrated by the decisional law cited by the dissent. Such deference does, however, admit of some elasticity, especially where a full administrative record is in existence, the agency has had an opportunity to rule on all issues, and the matter, although within the agency’s purview, does not require resolution of highly complex technical issues. The cases cited by the dissent do not hold to the contrary. Thus, we do not believe that courts are required to give BSA (or any other government agency) the option of indefinitely prolonging administrative proceedings by repeatedly considering less than all of the factors relevant to an application.2
The dissent cites Matter of Montalbano v Silva (204 AD2d 457 [1994]) in arguing that an agency need not address all potential issues when one of those issues is dispositive. Montalbano, however, actually sustained the challenged administrative determination, and therefore does not stand for the proposition that, notwithstanding the existence of a fully developed record, a court must remand a matter to an agency that has ruled erroneously on one issue while failing to address other issues. The dissent seems to disclaim arguing for this proposition, but, if it is simply (as the dissent asserts) a “strawman” of our own making, we have difficulty seeing where the dissent’s disagreement with us lies. We do not dispute that BSA was not absolutely required to address all five variance criteria once it had determined that three of them were not satisfied, given that petitioner was required to show that all five criteria were met. The question presented by this appeal is what a court is to do when presented, as here, with a decision in which the agency has determined less than all of the issues presented to it and has resolved those issues it did address in an arbitrary and capricious manner. This question simply was not presented in
We also do not agree with the analogy the dissent attempts to draw to judicial practice. While a court will often refrain from addressing issues that are academic in light of its determination of another issue, that does not preclude a higher court reviewing that decision (at least in civil cases) from addressing the issues the lower court failed to address where the record is sufficiently developed to allow the higher court (within the limits of its jurisdiction) to do so. The dissent does not advance its position by referring to the Court of Appeals’ lack of jurisdiction to review the facts, since, in this case, both this Court and Supreme Court have jurisdiction to determine whether, on the record presented, a given result would be arbitrary or capricious (see
As to the dissent’s claim that we and Supreme Court lack the “competence and expertise” to resolve the remaining outstanding issues on the existing record, neither the dissent, BSA, nor intervenors-respondents explain how the glass-enclosed staircase here in question raises land-use issues so complex and technical as to be beyond judicial competence. While there are undoubtedly many variance cases that courts will be unable to analyze without guidance from BSA on all relevant factors, this does not appear to be such a case. The dissent may believe that a high degree of technical expertise is required to determine whether allowing a one-time variance for the rear-wall, glass-enclosed staircase at issue will alter the “essential character of the neighborhood,” but we respectfully disagree with this view.3 Further, the present record is sufficiently developed to permit resolution of the question of petitioner’s entitlement to a variance, as it is undisputed that BSA received evidence on all five variance factors at the hearing it held in this matter.4
The record provides no support for appellants’ contention that the hearing court was biased. We have considered appel- lants’
McGuire, J., concurs in part and dissents in part in a memorandum as follows: I agree with the majority that Supreme Court correctly determined that petitioner acted in good faith reliance on a building permit, which was revoked after completion of the work for which the permit was sought, in proceeding with and completing the construction project. I also agree that Supreme Court, upon making that finding, properly annulled the resolution of respondent Board of Standards and Appeals (BSA) denying petitioner’s application for an area variance. Supreme Court erred, however, in directing the BSA to issue the variance. Accordingly, I dissent from the majority’s determination to affirm that aspect of the order that directed the BSA to issue the variance.
To issue a variance, the BSA must find that: (a) because of “unique physical conditions” of the property, conforming uses would impose “practical difficulties or unnecessary hardship”; (b) because of the unique physical conditions, a variance is “necessary to enable the owner to realize a reasonable return” from the zoned property; (c) the proposed variance “will not alter the essential character of the neighborhood or district. . . ; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare”; (d) the owner did not create the practical difficulties or unnecessary hardship; and (e) only the “minimum variance necessary to afford relief” is sought (
Prior to ruling on the merits of petitioner’s
Accordingly, the BSA should have the opportunity to exercise its “wide discretion in considering applications for variances” (Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437, 440 [2000]; see also Matter of Ifrah v Utschig, 98 NY2d 304 [2002]) in considering petitioner’s application anew in light of the finding that petitioner acted in good faith reliance on the permit. Only after the BSA makes findings based on its evaluation of the application can Supreme Court perform its limited function of reviewing the determination to ensure that it is supported by substantial evidence, i.e., is not arbitrary and capricious (see Matter of James H. Maloy, Inc. v Zoning Bd. of Appeals of Town of Sand Lake, 168 AD2d 874, 876 [1990]; see also Matter of Hannett v Scheyer, 37 AD3d 603 [2007]; Matter of Filangeri v Pulichene, 229 AD2d 702, 703-704 [1996]; Matter of Kontogiannis v Fritts, 131 AD2d 944 [1987]; Matter of Sherman v Frazier, 84 AD2d 401, 411 [1982]; Matter of Mendozza v Board of Zoning Appeals of Town of Smithtown, 30 AD2d 863 [1968]).
My fundamental disagreement with the majority is over the role of the judiciary in reviewing the determinations of an administrative agency, like the BSA, that possesses unique knowledge and expertise that the courts lack. Under settled law, those determinations are to be made in the first instance by the agency and courts have only the limited role of determining whether the agency’s determination is supported by substantial
According to the majority it need not remit this matter back to the BSA and instead may (1) undertake its own review of and make its own findings on whether the proposed variance would “alter the essential character of the neighborhood or district” and is the “minimum variance necessary to afford relief” (
The majority’s approach is inconsistent with other decisions of this Court discussing first principles of administrative law. Thus, in Davis v Waterside Hous. Co. (274 AD2d 318, 319 [2000], lv denied 95 NY2d 770 [2000]), this Court stated that “[d]eference to primary administrative review is particularly important where the matters under consideration are inherently technical and peculiarly within the expertise of the agency.” And in Capers v Giuliani (253 AD2d 630, 633 [1998], lv dismissed and denied 93 NY2d 868 [1999]), this Court held that “[s]ince the very matters under review are inherently technical matters for which expertise is reposed in the Department of Labor, review by this Court without a prior agency determination will be inconsistent with sound principles of administrative review.”
This Court’s decision in Burke’s Auto Body v Ameruso (113 AD2d 198 [1985]), also is directly on point. As we stated: “Nevertheless, Special Term abused its discretion in directing respondent to award the contract to petitioner. In an
The majority’s position also is at odds with the decision of the Court of Appeals in Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y. (91 NY2d 413 [1998]). As the Court stated, “[t]his Court has frequently recognized that the BSA is comprised of experts in land use and planning, and that its interpretation of the Zoning Resolution is entitled to deference” (id. at 418-419). Accordingly, in deferring to the BSA’s determination that a radio station and tower constituted an “accessory use” within the meaning of the Zoning Resolution, the Court noted that the BSA’s analysis was “to a great extent, fact-based” and “is one that will clearly benefit from the expertise of specialists in land use planning” (id. at 420). Stressing that the BSA included such specialists, the Court stated that it “may not lightly disregard that determination” (id.).
The Court also made clear that the deference owed by the courts to the BSA is rooted in fundamental constitutional precepts. Thus, the Court observed that “[s]eparation of powers concerns also support the decision we reach today” (id. at 422). An accessory use determination “must be based upon an individualized assessment of need. The BSA is the body designated to make this determination, and courts may intervene only if its determination is arbitrary or capricious” (id. at 423; see also Matter of Toys “R” Us v Silva, 89 NY2d 411, 418 [1996] [“The BSA, composed of five experts in land use and planning, is the ultimate administrative authority charged with enforcing the Zoning Resolution”]).
Obviously, the BSA is the body designated to make the ultimate determination that is at issue in this case, whether to grant an area variance. Just as obviously that determination also is a “fact-based” one, the making of which would “benefit from the expertise of specialists in land use planning.” If the BSA made the “ultimate determination” on this matter, it clearly would be “entitled to deference” and could not be “lightly disregarded].” The majority, however, does not allow the BSA to bring its expertise to bear. Instead, although it lacks the BSA’s expertise, the majority presumes to make the “ultimate determination” and forsakes the limited function assigned to it by the Legislature of reviewing the agency’s determination. Without citing a single case that
The majority does not deal with any of these precedents. Instead, it erroneously relies on Matter of Police Benevolent Assn. of N.Y. State Troopers v Vacco (253 AD2d 920 [1998], lv denied 92 NY2d 818 [1998]). In the first place, however complete the record in this case otherwise may be, it lacks something that this Court does not have the competence to supply: an evaluation of the application by the BSA, the body charged with using its expertise to make “often sensitive planning decisions” (Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]), in light of the finding of good faith reliance and all of the factors it is charged with evaluating. Second, this is not a case in which the administrative agency is seeking a second chance to do what it should have done previously. As noted, prior to denying petitioner’s application for a variance the BSA was not required to review all five of the elements set forth in
Moreover, a caveat should be added to the majority’s assertion that a higher court is not precluded “from addressing the issues the lower court failed to address where the record is sufficiently developed to allow the higher court . . . to do so.” Regardless of how developed the record may be, the higher court will be precluded from addressing issues that it lacks the authority to address. Thus, for example, the Court of Appeals cannot review any issues of fact that this Court did not address in the belief that their resolution was not necessary to the disposition
Here, similarly, “piecemeal” review is the price that must be paid if we confine ourselves to performing the limited office with which we are charged: determining whether a prior determination by the administrative agency charged with making, and possessing the expertise to make, such determinations is supported by substantial evidence. To the end of avoiding that price, the majority goes beyond implicitly performing the far broader office assigned by law to the BSA, and goes beyond assuming that the BSA would deny the variance. The majority goes so far as to pronounce that “it would be arbitrary and capricious to deny the variance sought by petitioner.” The majority’s clairvoyance and confidence are breathtaking. The majority has no idea at all what the BSA—which assuredly knows rather more about the subject than the majority—might say or what it might find about the extent to which the proposed variance would “alter the essential character of the neighborhood” or whether it would be the “minimum variance necessary to afford relief” (
The majority does not come to grips with Montalbano (supra). Rather, the majority observes that the case “does not stand for the proposition that, notwithstanding the existence of a fully developed record, a court must remand a matter to an agency that has ruled erroneously on one issue while failing to address other issues.” But the majority thus vanquishes a strawman for I certainly do not assert Montalbano stands for that proposition. Rather, I rely on Montalbano for a different proposition. To repeat it: in denying the application the BSA was not required to review all five of the elements set forth in
Nor does the majority come to grips with the cases holding that good faith reliance on an invalid permit does not give rise
In our prior decision in this case we held only that Supreme Court did not err in directing a hearing on the issue of whether petitioner had acted in good faith reliance on the permit (13 AD3d at 242-243). In this regard, we noted that “[a] court is specifically commanded to conduct a trial ‘forthwith’ when a factual issue is raised in an
The other assertion is much more ambitious. The majority writes that “[t]he issue that divides this panel is whether, in this
This account of our prior decision is insupportable. The BSA appealed from that portion of Supreme Court’s order “denying petitioner’s application for a variance to the extent of directing a hearing upon the issue of whether petitioner in erecting the disputed structure acted in ‘good faith reliance’ on the application, plans and permit approved by respondent New York City Department of Buildings” (13 AD3d at 242). In affirming, we held only that Supreme Court did not err in directing a hearing. Obviously, we could not have held more than that and no language in the opinion suggests otherwise. To the contrary, we wrote that “[c]onsideration of whether petitioner acted in good faith reliance on a then-valid DOB permit in constructing a glass-enclosed stairwell at the rear of his building was relevant to determining if petitioner was entitled to a variance” (id. [emphasis added]). The majority, however, implicitly rewrites that sentence. By its lights, what we really wrote was, “[c]onsid- eration
In the course of advancing this newly-minted “law of the case” claim, the majority writes that “the dissent’s reasoning leads to the conclusion that our prior decision should have modified to remand the matter to BSA for a hearing on the good-faith issue, rather than affirm Supreme Court’s determination to conduct such a hearing itself, which is what we did.” To the contrary, my reasoning leads to a different and rational conclusion. As our prior decision expressly stated (13 AD3d at 243), we affirmed Supreme Court’s determination to hold a hearing on the good faith issue because of
The majority writes that “[t]he dissenter attempts to disown the implications of his own position, stating that ‘the judiciary certainly would not be powerless in the event the agency’ acted in the manner posited by our hypothetical.” This charge is all rhetoric and no substance. Because my position is not the extreme one the majority would like it to be—i.e., that the judiciary under all circumstances always must remand to the agency when the agency has not made one of the statutory findings—the majority charges that I “attempt to disown the implications of [my] position.” Under this reasoning, merely by stating my position I disown its implications. The majority does not take
For these reasons, I respectfully dissent from the majority’s determination that Supreme Court properly directed the BSA to issue the variance.