Douglaston Civic Ass'n, Inc. v. Galvin

• Decision Date: 31 December 1973
• Citation: 43 A.D.2d 739,350 N.Y.S.2d 708
• Parties: In the Matter of DOUGLASTON CIVIC ASSOCIATION, INC. et al., Respondents, v. Thomas F. GALVIN et al., constituting the Board of Standards and Appeals of the City of New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 708

350 N.Y.S.2d 708

43 A.D.2d 739

In the Matter of DOUGLASTON CIVIC ASSOCIATION, INC. et al Respondents, v. Thomas F. GALVIN et al., constituting the Board of Standards and Appeals of the City of New York, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 31, 1973.

Before RABIN, P.J., and MUNDER, MARTUSCELLO, LATHAM and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR Inter alia to review a determination of the appellant Board of Standards and Appeals of the City of New York which denied a request to reopen and reconsider the grant of a variance to allow the appellant Estate of Dave Simon to construct a six-story multiple dwelling on certain property located in Queens County, the appeals (by permission) are from so much of an order of the Supreme Court, Queens County, dated September 5th, 1972 and made on resettlement, as (1) denied a motion by said board, in which the Estate of Dave Simon joined, to dismiss the petition and (2) extended the time for answering the petition.

Order reserved insofar as appealed from, with $20 costs and disbursements jointly to appellants appearing separately and filing separate briefs, and petition dismissed.

We direct dismissal of the proceeding as to the petitioner Douglaston Civic Association Inc. because that petitioner is not a property owner and hence has no standing to bring the proceeding (see Matter of Moore v. Burchell, 14 A.D.2d 572, 218 N.Y.S.2d 868, mot. lv. to app. den. 10 N.Y.2d 709, 223 N.Y.S.2d 1026, 179 N.E.2d 716; Matter of Manor Woods Assn. v. Randol, 29 A.D.2d 778, 287 N.Y.S.2d 734).

We reverse as to the two individual petitioners on the merits. On the issue of standing, we conclude they come within the provision of section 668e--1.0, subd. a of the New York City Administrative Code which states that 'any person or persons, jointly or severally aggrieved by any decision of the board' may present a duly verified petition in certiorari to the Supreme Court. The petition alleges that the individual petitioners own property and reside in Douglaston, Queens, which is the area involved in this case. It is further alleged that the proposed apartment house would greatly increase motor traffic in a block already congested by double parking and would block off the last bit of open area at the entrance to Douglaston. There is no allegation of pecuniary damage, but that is not the Sine qua non for standing (see Bloom v. Town Bd. of Town of Oyster Bay, 41 A.D.2d 533, 534, 339 N.Y.S.2d 264, 266 (diss. opn.), revd. on diss. opn. in App.Div. 32 N.Y.2d 930, 347 N.Y.S.2d 197). The allegations asserted were sufficient, in our opinion, to allow the individual petitioners to show that their property was 'affected' and that, therefore, they were 'aggrieved' by the board's decision (see Schapiro v. Town of North Hempstead, 35 A.D.2d 596, 314 N.Y.S.2d 352; Daum v. Meade, 35 A.D.2d 598, 313 N.Y.S.2d 625).

There still remains the question whether petitioners showed any basis for overturning the board's decision not to reopen this matter. We conclude not. The grounds urged for reopening was the claim that the board had been misled by inaccurate information as to the value of the property. The record reveals that, in support of the application for a variance in 1971, the applicant Estate of Dave Simon submitted appraisals indicating that the value of the subject parcel was then $121,878. However, the 'new' evidence submitted by petitioners three months after the variance was granted was that in the estate's transfer tax proceeding some years prior to the grant of the variance the subject parcel was valued at $35,000. In our opinion, 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 (cf. Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39, 172 N.Y.S.2d 129, 149 N.E.2d 65). Moreover, since the information as to the estate tax valuation was readily ascertainable at the time of the hearing, we do not believe it constitutes substantial new evidence and it is not a valid basis upon which to reopen the hearing (cf. Matter of Ryan & Cable v. Montesano, 36 A.D.2d 680, 319 N.Y.S.2d 770).

SAMUEL RABIN, P.J., and MUNDER, MARTUSCELLO and LATHAM, JJ., concur.

HOPKINS, J., concurs in the result, with the following memorandum:

I join in the view of my brothers that the Board of Standards and Appeals was correct in denying petitioners' application for a reopening and reconsideration of the variance theretofore granted. I do not agree,...