I dissent and vote to confirm the determination of the board and dismiss the petitions.
In my opinion, there is substantial evidence in the record to support the findings of the respondent Board of Standards and Appeals that (1) petitioners Lefrak failed to satisfy the statutory requirement of completion of substantial construction of foundations prior to December 15, 1971, the expiration date of the preceding permit extension; and (2) this is not an “ appropriate ” case for the granting of a further extension. Although these findings are sufficient, in and of themselves, to support the denial, I agree with the majority that a third finding, Lefrak’s lack of a possessory interest in the property in 1963, is not a proper ground for the denial of a further extension.
As respects Lefrak’s argument that the seven previous permit extensions herein granted to its predecessors in interest operate as res judicata or an estoppel, I note first that we are not dealing with a builder who, relying on a valid permit, has proceeded with construction prior to a zoning change to a point where he has acquired a vested right to continue and complete the structure (see, e.g., Matter of Glenel Realty Corp. v. Worthington, 4 A D 2d 702). Rather, we have here a grace period provision which offered landowners the opportunity to secure building permits and begin construction on nonconforming buildings after the effective date of the new zoning ordinance (Dec. 15, 1961) (1960 Zoning Resolution, § 11-321). In the event construction was begun but not completed by December 15, 1963, a two-year extension of the building permit could be secured pursuant to section 11-322, provided substantial construction of foundations had been completed prior to December 15,1963. Section 11-324, enacted in 1964, authorized additional one-year extensions of building permits, “ in appropriate cases ”, if, as stated in subdivision (a), “on or before the date of the expiration of the *220term of the preceding extension, substantial construction of foundations has been completed (Sections 11-323 and 11-324 [stibd. (b)] deal with extensions where less than substantial' construction of foundations has been completed.)
The original plans and permit applications were filed in April, 1961 by Adson Industries, Inc., then a contract vendee. Permits upon amended plans complying with the pre-1961 zoning law were finally issued in or about August, 1963 and construction was commenced. Thereafter, Adson secured three sticcessive extensions of its building permits pursuant to sections 11-322 and 11-324 (subd. [a]). In 1965, Adson, or more properly two wholly owned subsidiaries to whom the property had been transferred, defaulted on a mortgage held by the Franklin National Bank; and the latter took title upon a sale following a judgment of foreclosure which was entered in 1966. Franklin then secured four additional extensions of the permits pursuant to subdivision (a) of section 11-324, the last one expiring on December 15, 1971. In April, 1971 Franklin entered into a contract of sale with Lefrak, which then amended the building plans and did some preliminary site preparation work. After title closed in November, 1971, Lefrak began actual construction work on the foundations. On December 10, 1971, five days before the expiration of the existing permit extensions, Lefrak filed applications for an additional one-year extension. This time, however, the extensions were denied.
Preliminarily, I note that the failure to get beyond even the foundation stage of construction in nine years seems to have been due in great part to the very nature of the project, i.e., the construction of two high-rise, middle-income apartment buildings over the tracks of the Long Island Railroad. The necessity of working in the track bed without disruption of the railroad’s train schedule presented almost insurmountable problems from the start. After Adson and/or its subsidiaries went bankrupt, it took Franklin National Bank more than four years to find another builder willing to undertake the project and, even then, construction was commenced only after the building plans were modified to eliminate most of the track bed work.
The seven prior extensions herein were granted after rather pro forma hearings. Most were upheld in the courts as against only technical challenges by intervening adjacent homeoymers. . Indeed, compliance with the statutory criterion of ‘ ‘ appropriateness ” seems never to have been controverted in the past and compliance with the substantial construction requirement only once. Upon the instant hearings, attended by numerous *221public officials, representatives of local civic associations, homeowners and tenants, these issues were vigorously contested.1
Nevertheless, whether or not the board was correct in granting the prior extensions is not the issue here. Nor may those prior determinations raise the bar of res judicata, for, among other reasons, the statute (§ 11-324) clearly contemplates that the annual extension applications will each be determined upon evidence of construction completed during the year immediately preceding. Still, the question remains whether the prior extensions, granted upon similar or even less proof of statutory compliance, render the instant denial arbitrary or capricious. I think not.
It is now more than 10 years since the effective date of the new zoning ordinance and, significantly, the last extension herein was secured by the Franklin National Bank on the representation that it would find a builder and complete the buildings within 1971, even if it meant taking a substantial loss. Indeed, Franklin even proffered a letter of intent from a builder other than Lefrak. After so much delay, the board had a right to expect that it would be presented with at least a partially completed building if and when a further extension were requested. Yet, all it found upon Lefrak’s applications was that construction of the foundations had been started (Lefrak claimed 13% of the foundations had been completed while the interveners contended only 4% had been completed).2 Furthermore, Lefrak had modified the building plans and allegedly virtually abandoned whatever construction or site preparation work had been done in the past. While the change in plans was technically permissible so long as the new plans did not increase nonconformity with the new zoning law, Lefrak did not have a permanent license to construct a nonconforming building and the board had a right to consider this as a significant change in circumstances since its prior determination.
*222In addition, there was raised at this hearing, for the first time, a real question as to whether this was an appropriate case for a further extension. Lefrak does not accept the board’s “ definition ” of the appropriateness criterion and argues that it improperly treated the applications as one for a variance. However, I believe the statutory language to be sufficiently specific (Chiropractic Assn. of N. Y. v. Hilleboe, 12 N Y 2d 109, 120; Matter of City of Utica v. Water Pollution Control Bd., 5 N Y 2d 164, 169-170) and to denote something other than mere proof of completion of substantial construction of foundations or physical evidence of a commitment to build, which is really the same thing. In other words, even if the substantial construction requirement is met, the board still retains a measure of discretion in determining whether the case is an appropriate one for a further extension. Without attempting to limit the bounds of that discretion, I believe that the question of whether the proposed development is still in the public interest must come into play at this point and that the new evidence presented thereon was almost unanimously against this development and virtually uncontradicted.
Thus, for example, it was shown that the proposed 20-story twin towers will not only be grossly disproportionate to the immediate area, which consists solely of private homes and four- to six-story apartment buildings, but that the market for such conventionally financed “middle-income” housing is already glutted and schools and public transportation overcrowded. In addition, the only access to the proposed Lefrak towers is from Union Turnpike. A half-block away, traffic in and from the Interboro Parkway and Queens Boulevard converges and conditions are such that parking is not even permitted in this section of the Turnpike during daylight hours. Furthermore, the Turnpike is divided into one-way segments at this point, the divider being the depressed Interboro Parkway. Although Lefrak plans a substantial setback and turnaround driveway for each building, cars proceeding west on the Turnpike would have a difficult time getting to the building abutting the eastbound lanes, and vice versa. Finally, there was also testimony that one moving van or one fire engine could effectively block the Turnpike to all. traffic; that the parking problem is already so bad that Forest Hills Gardens, which abuts this development to the northwest, has had to institute a tow-away program to remove parked cars from its private streets; and that the sidewalks are so narrow near one of the *223proposed Lefrak buildings that the city had to install metal barricades to protect pedestrians from automobiles.
In short, under all the circumstances here presented, I find that the board was not bound by the prior extensions granted Lefrak’s predecessors in interest and that the instant denial of a further extension of the building permits should be upheld as based upon substantial evidence in the record.
Gulotta and Benjamin, JJ., concur with Hopkins, Acting P. J.; Munder, J., dissents and votes to confirm the determination and dismiss the petitions, with an opinion, in which Martuscello, J., concurs.
Determination annulled, on the law, without costs, and Board of Standards and Appeals directed to issue an extension of the permits for one year beginning from the date of the order entered hereon.
. Indeed, the hoard’s returns on the seven prior extensions, filed in the Supreme Court, Queens County, comprise a grand total of only 592 pages, with the longest return only 147 pages. The instant record totals 2,144 pages.
. The proof submitted on the issue of substantial construction was highly conflicting. Lefrak claimed it had poured 863 cubic yards of concrete as of December 15, 1971. However, its concrete delivery tickets showed only about 300 yards poured as of that date. Lefrak also claimed it had paid or incurred $600,000 in construction and related expenses prior to December 15, 1971 and had additional contractual commitments in the millions. The interveners not only cast doubt upon the legitimacy of many of these alleged expenditures but contended that many would not have to be honored at all if the permit extension were denied.