Development

No Evidence of Harm from Area Variance

Matter of Gonzalez v. Zoning Board

NYLJ 1/21/04, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding to annul denial of area variance, the zoning board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the record demonstrated no evidence that the variance would adversely affect the community.

Landowner sought area variances to permit construction that would not comply with the area and street setback requirements of the applicable zoning ordinance. The zoning board of appeals denied the variances, relying on testimony by neighbors that the variances would be detrimental to the character of the neighborhood. Landowner brought this article 78 proceeding, and Supreme Court granted the petition.

In affirming Supreme Court's determination, the Appellate Division acknowledged that landowner's predicament might have been self-created, but held that landowner would nevertheless be entitled to the variance in the absence of evidence that the variance would have an undesirable effect on neighborhood character, adversely impact on physical or environmental conditions, or otherwise result in detriment to the health or safety of the community. Here, there was no such evidence. Indeed, the record revealed the existence of similar substandard lots in the immediate vicinity of the subject parcel. Hence, the court concluded that the board's determination was arbitrary and capricious. In addition, the court rejected the board's contention – raised for the first time in the article 78 proceeding – that its decision was based on res judicata because it had previously denied variance applications with respect to the same parcel. The court noted that the board did not rely on that ground in making its decision, and held that judicial review was limited to the grounds invoked by an agency in making its decision.

Demolition of Highline Did Not Require ULURP Review

In re New York City Council v. City of New York

NYLJ 1/23/04, p. 18, col. 1

AppDiv, First Dept

(Opinion by Gonzalez, J.)

In an article 78 proceeding brought by the New York City Council and various community groups, the City of New York appealed from a Supreme Court order granting the petition and holding that demolition of the Highline railway required review under the city's Uniform Land Use Review Procedure (ULURP). The Appellate Division reversed and dismissed the petition, holding that demolition did not involve acquisition of real property by the city, and that the Highline had not been part of the city map.

The Highline, constructed in the 1920s and 1930s to eliminate dangerous grade crossings, is now an abandoned elevated railway located on Manhattan's far west side, south of 34th Street. To enable construction of the Highline, the city granted easements to the New York Central Railroad. The railroad currently owns both the structure and the easements. In 2001, the city, the railroad, and the owners of the 22 privately owned parcels burdened by the railroad's easements entered into an agreement under the terms of which the railroad would surrender its easements, and the Highline would be destroyed. The City Council and various community groups and residents then brought this proceeding preventing demolition of the Highline until the agreement was submitted for review pursuant to ULURP. Supreme Court granted the petition, holding both that the surrender of the railroad's easements to the city constituted an acquisition of land by the city, and that demolition of the Highline would require a change in the city map, triggering ULURP review.

In reversing, the Appellate Division first held that the railroad's surrender of the easement extinguished its easement, but did not result in acquisition of real property by the city. The court then rejected the argument that transfer of the Highline structure itself was an acquisition of real property by the city, holding that the structure was personalty, not realty, for purposes of ULURP. The court then looked to section 25-102 of the city's administrative code to determine whether surrender of the easements required a change in the city map. The court noted that section 25-102 explicitly lists a number of features required to be included in the city map, and noted that all of the included items were public spaces, not private easements. The court then noted the testimony by a supervisor in the technical review department division of the Department of City Planning, whose responsibilities have included review of applications for modifications of the city map. The supervisor testified that the city map's purpose is to record creation and alteration of public spaces, not private easements. The court held that it was appropriate to defer to the expertise of the Department of City Planning. As a result, the court held that destruction of the Highline did not require alteration of the city map. Therefore, the court dismissed the petition.

No Evidence of Harm from Area Variance

Matter of Gonzalez v. Zoning Board

NYLJ 1/21/04, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding to annul denial of area variance, the zoning board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the record demonstrated no evidence that the variance would adversely affect the community.

Landowner sought area variances to permit construction that would not comply with the area and street setback requirements of the applicable zoning ordinance. The zoning board of appeals denied the variances, relying on testimony by neighbors that the variances would be detrimental to the character of the neighborhood. Landowner brought this article 78 proceeding, and Supreme Court granted the petition.

In affirming Supreme Court's determination, the Appellate Division acknowledged that landowner's predicament might have been self-created, but held that landowner would nevertheless be entitled to the variance in the absence of evidence that the variance would have an undesirable effect on neighborhood character, adversely impact on physical or environmental conditions, or otherwise result in detriment to the health or safety of the community. Here, there was no such evidence. Indeed, the record revealed the existence of similar substandard lots in the immediate vicinity of the subject parcel. Hence, the court concluded that the board's determination was arbitrary and capricious. In addition, the court rejected the board's contention – raised for the first time in the article 78 proceeding – that its decision was based on res judicata because it had previously denied variance applications with respect to the same parcel. The court noted that the board did not rely on that ground in making its decision, and held that judicial review was limited to the grounds invoked by an agency in making its decision.

Demolition of Highline Did Not Require ULURP Review

In re New York City Council v. City of New York

NYLJ 1/23/04, p. 18, col. 1

AppDiv, First Dept

(Opinion by Gonzalez, J.)

In an article 78 proceeding brought by the New York City Council and various community groups, the City of New York appealed from a Supreme Court order granting the petition and holding that demolition of the Highline railway required review under the city's Uniform Land Use Review Procedure (ULURP). The Appellate Division reversed and dismissed the petition, holding that demolition did not involve acquisition of real property by the city, and that the Highline had not been part of the city map.

The Highline, constructed in the 1920s and 1930s to eliminate dangerous grade crossings, is now an abandoned elevated railway located on Manhattan's far west side, south of 34th Street. To enable construction of the Highline, the city granted easements to the New York Central Railroad. The railroad currently owns both the structure and the easements. In 2001, the city, the railroad, and the owners of the 22 privately owned parcels burdened by the railroad's easements entered into an agreement under the terms of which the railroad would surrender its easements, and the Highline would be destroyed. The City Council and various community groups and residents then brought this proceeding preventing demolition of the Highline until the agreement was submitted for review pursuant to ULURP. Supreme Court granted the petition, holding both that the surrender of the railroad's easements to the city constituted an acquisition of land by the city, and that demolition of the Highline would require a change in the city map, triggering ULURP review.

In reversing, the Appellate Division first held that the railroad's surrender of the easement extinguished its easement, but did not result in acquisition of real property by the city. The court then rejected the argument that transfer of the Highline structure itself was an acquisition of real property by the city, holding that the structure was personalty, not realty, for purposes of ULURP. The court then looked to section 25-102 of the city's administrative code to determine whether surrender of the easements required a change in the city map. The court noted that section 25-102 explicitly lists a number of features required to be included in the city map, and noted that all of the included items were public spaces, not private easements. The court then noted the testimony by a supervisor in the technical review department division of the Department of City Planning, whose responsibilities have included review of applications for modifications of the city map. The supervisor testified that the city map's purpose is to record creation and alteration of public spaces, not private easements. The court held that it was appropriate to defer to the expertise of the Department of City Planning. As a result, the court held that destruction of the Highline did not require alteration of the city map. Therefore, the court dismissed the petition.