Armil Realty Corp. v. Board of Estimate

In a *889proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Estimate of the City of New York, dated August 18, 1977, which reversed a determination of the Board of Standards and Appeals of the City of New York, dated July 5, 1977, the appeal is from a judgment of the Supreme Court, Queens County, dated March 7, 1978, which, inter alia, reinstated the determination of the Board of Standards and Appeals. Judgment affirmed, without costs or disbursements. Petitioners applied for an enlargement of their factory which had previously received a use and area variance in 1962 from the Board of Standards and Appeals (BSA). Under section 11-412 of the Zoning Resolution of the City of New York, the BSA is authorized "in appropriate cases” to grant enlargements of pre-existing variances, which do not exceed 50% of the floor area of such building. Subdivision a of section 668 of the 1976 Charter of the City of New York now grants the Board of Estimate power to review decisions of the BSA in certain instances which concern "applications to vary the building zone resolution.” The Board of Estimate contends that an application to enlarge a pre-existing variance is such a reviewable application. We agree. This second enlargement of petitioners’ factory constitutes another variation from the zoning resolution. It would seem irrational to hold, as Special Term concluded, that the Board of Estimate is authorized to review the original grant of a variance but not a subsequent modification. Nevertheless, we must affirm the judgment of Special Term which reversed the determination of the Board of Estimate and reinstated the determination of the BSA. The Board of Estimate has a narrow scope of review under section 668 of the 1976 Charter (see Matter of Cotroneo v Klein, 62 AD2d 493). It is limited to deciding whether the determination of the BSA is supported by substantial evidence. An enlargement of a pre-existing variance may be granted by the BSA wherever "appropriate”, so long as the enlargement does not impair the essential character or the future use of the surrounding area (see Zoning Resolution, § 11-412). This is a far more lenient standard than the business hardship requirement for obtaining the original variance (see Zoning Resolution, § 72-21 et seq.; Matter of Reed v Board of Stds. & Appeals of City of N. Y, 255 NY 126, 131-135). The petitioners in this case demonstrated before the BSA that they needed an enlargement of their floor space to accommodate a modernization of their equipment. Without the modernization, there would be a danger of more than 90 jobs being lost. The enlargement would not touch on any residential property. It would not add any noise pollution to the area since there would be no additional windows or roof openings. Home values have apparently risen in the area despite the presence of the factory and there was no evidence that a 10% increase in the floor area would reverse that trend. The factory owner was required to plant trees to minimize the visual impact of the one-story brick extension. Finally, the proposal was backed by the Economic Development Administration. Based on this record, it was improper for the Board of Estimate to find that the determination of the BSA was not appropriate (Zoning Resolution, § 11-412). Martuscello, J. P., Titone and Shapiro, JJ., concur.