138 Misc. 187 | N.Y. Sup. Ct. | 1929
This is a motion by the board of standards and appeals to quash a petition to review by certiorari the decision of the board under section 719-a of the Greater New York Charter (Laws of 1901, chap. 466, § 719-a, as added by Laws of 1916, chap. 503, § 6). The facts in the controversy are virtually undisputed, except possibly the charge of the prejudicial attitude shown by the utterances of one of the members of the board which will be hereafter referred to. The determination of the board was upon the application of the intervenor Wilthan Realty Corporation, owner of premises on Third avenue between Seventy-first and Seventy-second streets and premises adjoining thereto, namely, Nos. 183-187 East Seventy-first street and Nos. 182-184 East Seventy-second street. Application was made by the owner to erect a fireproof theatre and commercial building on the block front of Third avenue, extending 125 feet on East Seventy-second street and 119 feet 8 inches on East Seventy-first street. Both Third avenue and Lexington avenue are in the business zone; consequently 100 feet east of Lexington and a like distance west of Third avenue are in such zone, leaving a space of over 200 feet on both streets in a residential zone. Within that zone on Seventy-second street there is a small bank building, which existed prior to the adoption of the’Building Zone Resolution. The
As to the first objection it is well to note that section 7, paragraph (c) permits an extension under such conditions as will safeguard the character of the more restricted district. Apparently an attempt was made in the revised plans to adopt such safeguards. Thus stores were eliminated from the extension, no part of the lobby was placed in the residence zone. An emergency exit, it is true, leads through a court in the residential zone, and a small portion of the building extends into it. But this extension is not so serious as to impair the residential character of the block so far as that can be consistently maintained, in view of the legal encroachments from the two avenues. It is not as if an extension is sought for a distance of 50 or 100 feet or more as in Matter of 4672 Broadway Corp. v. Board of S. & A. (225 App. Div. 97), which would virtually destroy the residential character of the entire block. In their answer the members of the board give many reasons to indicate that their determination was not capricious, but based upon considerations of the best interests of the neighborhood. It is true that anong the reasons is one to the effect that there are practical difficulties in the way of using the small portion of the plot lying within the residence districts, and it may be that section 21 must be read into section 7, paragraph (c). On the other hand, I see no reason why the board has not discretion, apart from the situation of difficulties and hardship, to consider the facts independent of these latter elements. Even without these, sufficient reasons are presented to show that the board exercised proper discretion in approving the extension under safeguards provided by the statute.
As to the objection that the board had no power to reconsider the application after having once denied it, it is well pointed out that the second application was not one of reconsideration, but a new application upon different plans. It is true the same general plot
The motion to quash is, therefore, granted. Settle order.
