Douglaston Civic Ass'n, Inc. v. Galvin

CourtNew York Court of Appeals
Citation36 N.Y.2d 1,364 N.Y.S.2d 830
Parties, 324 N.E.2d 317 In the Matter of DOUGLASTON CIVIC ASSOCIATION, INC. et al., Appellants, v. Thomas F. GALVIN et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Respondents.
Decision Date20 December 1974

Edward J. Ledogar, Jr., Melville, for appellants.

Daniel Eisenberg, Brooklyn, for estate of Dave Simon, respondent.

Adrian P. Burke, Corp. Counsel, New York City (Leonard Olarsch and L. Kevin Sheridan, New York City, of counsel), for Bd. of Standards and Appeals, respondent.

JASEN, Judge.

In this article 78 proceeding to review the determination of New York City Board of Standards and Appeals denying request to reopen and reconsider grant of variance to construct a six-story multiple dwelling, two questions are presented for our review. First, whether a civic or property owners' association has standing to contest the grant of the variance, and, second, whether the belated discovery of evidence which was at all times available may constitute such 'substantial new evidence' as to make the board's refusal to reopen and reconsider its prior action arbitrary and capricious.

On July 20, 1971, the board, following a hearing at which Douglaston residents individually and through the Douglaston Civic Association, Inc., opposed the variance, granted the estate of Dave Simon a hardship variance, permitting it to construct a six-story, 67-unit apartment building in an area zoned R1--2, which essentially limited construction to single homes on 60--foot plots. In its presentation to the board, the estate had represented its 'Cost of Land' as $121,878 1. In support of its claim that the cost of construction of a single dwelling on the site would be prohibitive, the estate provided the board with estimated rates of return from various residential uses of the property, ranging from 3.83% For five three-family dwellings to 6.9% For a six-story apartment house. Upon this evidence, the board granted the estate a variance based on hardship. Neither the association nor the individual petitioners herein sought judicial review of the board's action in granting the variance.

Shortly after the time in which they could contest the grant of the variance had expired, but before any construction had begun, the petitioners discovered for the first time that eight years earlier, in a New York estate tax proceeding, this same parcel in its identical unimproved state had been valued by the estate at $35,000. Although this had been a matter of public record for three years, the association asked the board to reopen the case and grant a rehearing. The board refused on the ground that this recently discovered information did not constitute substantial new evidence. At that point the individual petitioners joined the association in initiating this proceeding pursuant to section 668e--1.0 of the New York City Administrative Code and CPLR article 78 seeking a review of the board's denial of a rehearing. Special Term denied the board's motion to dismiss the petition and ordered it to serve an answer. The Appellate Division reversed, holding, Inter alia, that the Douglaston Civic Association lacked standing to bring the proceeding; that as to the individual petitioners who were 'aggrieved' by the board's decision, 'the board acted well within its discretionary power in rejecting such information and in apparently concluding that a projected return of income, for a parcel for which a variance is sought, may be based on present value, rather than its original cost'; and that the valuation information did not constitute substantial new evidence. (43 A.D.2d 739, 740, 350 N.Y.S.2d 708.)

Considering first the standing issue, subdivision a of section 668e--1.0 of the New York City Administrative Code provides that '(a)ny person or persons, jointly or severally aggrieved by any decision of the board' may challenge that decision in an article 78 proceeding in the nature of certiorari. 2

Our courts have repeatedly held that for a person 3 to be 'aggrieved' within the meaning of the provision, there must be a showing that the person has been personally and adversely affected by the administrative determination. (Matter of Manor Woods Assn. v. Randol, 29 A.D.2d 778, 287 N.Y.S.2d 734; Matter of Moore v. Burchell, 14 A.D.2d 572, 218 N.Y.S.2d 868, mot. for lv. to app. den. 10 N.Y.2d 709, 223 N.Y.S.2d 1026, 179 N.E.2d 716; Matter of Lido Beach Civic Assn. v. Board of Zoning Appeals, 13 A.D.2d 1030, 217 N.Y.S.2d 364; Matter of Feldman v. Nassau Shores Estate, 12 Misc.2d 607, 172 N.Y.S.2d 769, affd. 7 A.D.2d 757, 181 N.Y.S.2d 79; Matter of Vitolo v. Chave, 63 Misc.2d 971, 314 N.Y.S.2d 51; Matter of Miller v. Incorporated Vil. of East Hills, 41 Misc.2d 525, 245 N.Y.S.2d 718.) Obviously, under this restrictive view, civic and property owners' associations with no direct proprietary interest in the zoned land would have no standing to challenge a zoning board decision.

We are troubled by the apparent readiness of our courts in zoning litigation to dispose of disputes over land use on questions of standing without reching the merits, an attribute which is glaringly inconsistent with the broadening rules of standing in related fields. (See, e.g., National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867; Matter of Glen Cove Civ. Serv. Comm. v. Glen Cove NAACP, 34 A.D.2d 956, 312 N.Y.S.2d 400; Matter of American Jewish Congress v. Carter, 19 Misc.2d 205, 190 N.Y.S.2d 218, mod. on other grounds 10 A.D.2d 833, 200 N.Y.S.2d 353, affd. 9 N.Y.2d 223, 213 N.Y.S.2d 60, 173 N.E.2d 788; Ayer, Primitive Law of Standing in Land Use Disputes: Some Notes From a Dark Continent, 55 Iowa L.Rev. 344.) Troubled though we are over this inconsistency that has developed in our law, our concern is heightened because of the particular need in zoning cases for a broader rule of standing.

It should be readily apparent that a person desiring relaxation of zoning restrictions--such as a change from residential to business--has little to lose and much to gain if he can prevail. He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result. The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change. Thus, the neighboring property owners rarely fight as hard for zoning protection as the developer or speculator does for relaxation of zoning restrictions. Against this background of economic disparity, an individual property owner, who stands only to gain (or prevent the loss of) the maintenance of the Status quo as regards the value of his homestead and his peace and quiet, cannot be expected, nor should he be required, to assume by himself the burden and expense of challenging the zoning change. Even if successful, the aggrieved individual will not be able to recoup his expenditures. By granting neighborhood and civicassociations standing in such situations, the expense can be spread out over a number of property owners putting them on an economic parity with the developer.

This broader rule of standing is entirely consistent with the underlying purposes of our zoning laws. Our municipalities enact zoning ordinances in order to protect the public's health, welfare and safety. A challenge to a zoning variance focuses the court's attention on this public interest. To force a court to reject such a challenge on the grounds of standing when the group contesting the variance represents that segment of the public which stands to be most severely affected by it is, in our view, an ironic situation which should not be permitted to continue.

In view of these factors, we believe that an appropriate representative association should have standing to assert rights of the individual members of the association where such persons may be affected by a rezoning, variance or an exception determination of a zoning board.

In determining whether a particular organization should have such standing, the court should be satisfied that the organization before it is an appropriate one to act as the representative of the group whose rights it is asserting. Several of the factors 4 which should be considered in this respect were set forth in Justice Hopkins' concurring opinion at the Appellate Division--'(1) the capacity of the organization to assume an adversary position, (2) the size and composition of the organization as reflecting a position fairly representative of the community or interests which it seeks to protect and (3) the adverse effect of the decision sought to be reviewed on the group represented by the organization as within the zone of interests sought to be protected.' (43 A.D.2d 739, 740, 350 N.Y.S.2d 708, 711.) To these factors we would add that full participating membership in the representative organization be open to all residents and property owners in the relevant neighborhood. (Cf. A.L.I., Model Land Development Code, Proposed Official Draft No. 1 (1974), § 2--307, subd. (3), par. (e).) 5 Applying these factors in determining standing would, in our view, insure that the necessary adverseness is present for litigation of the issues raised by the petition and that the petitioner is not a mere intermeddler in the administrative process.

We conclude, on the record before us, that...

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