Fieldston Garden Apts. v. City of New York
| Decision Date | 10 November 1955 |
| Citation | 7 Misc.2d 147,145 N.Y.S.2d 907 |
| Parties | FIELDSTON GARDEN APARTMENTS, Inc., Plaintiff, v. The CITY OF NEW YORK, Robert F. Wagner, Lawrence E. Gerosa, Abe Stark, James J. Lyons, Hulon E. Jack, John Cashmore, James A. Lundy, and Edward G. Baker, constituting the Board of Estimate of the City of New York, Harry Akin, Acting Borough Superintendent, Borough of Bronx, Department of Housing and Buildings, Simon B. Zelnik, William A. Hannig, C. Exner Hannig, and Josephine Chambart, Defendants. |
| Court | New York Supreme Court |
Shanley & McKegney, New York City, for plaintiff.
Peter Campbell Brown, New York City (Rose Schneph, New York City, of counsel), for City of New York.
Kaplan, Kilsheimer & Buckley, New York City, for defendant Zelnik.
In this action for declaratory judgment and injunction, the defendants move to dismiss the complaint under Rule 113 R.C.P. The action was instituted by the plaintiff to declare illegal and unconstitutional an amendment to the Zoning Law of the City of New York known as CP 10780, unanimously adopted by the City Planning Commission on June 2, 1954, and unanimously approved by the Board of Estimate on June 11, 1954. The injunction seeks to restrain the Acting Borough Superintendent of the Borough of the Bronx from issuing a permit to erect any building under the provisions of that amendment.
All the parties to this action agree that there are no issues of fact remaining and that the sole issue undecided in this proceeding is one of law. Consequently the parties seek a final determination.
From the complaint, affidavit and the stipulation of facts agreed upon by all the parties to this action, the following facts appear:
The property involved in this action is located at the southwest corner of Riverdale Avenue and West 238th Street, in the County of the Bronx, and is owned by the defendant Zelnik. This is vacant, unimproved property. The plaintiff is the owner of a cooperative apartment building located on the north side of West 238th Street which occupies the entire block from West 238th Street to West 239th Street and from Riverdale Avenue to Henry Hudson Parkway.
On May 22, 1953, the defendant Zelnik addressed a communication to the City Planning Commission in which he requested a change of the use zone regulating the area where his property is located and suggesting that it be changed from 'residence use' district to 'business use' district. After investigation and hearings by the Planning Commission, the Commission decided that the property involved required that the residence use be changed to a 'restricted retail use'. This change was submitted to the Board of Estimate, which resolution failed to secure the unanimous vote necessary, and therefore the attempt to change the use district failed without prejudice.
The City Planning Commission then reconsidered the entire matter and after a number of public hearings unanimously adopted the zoning amendment known as CP 10780, the subject-matter of this controversy. The new resolution differed from the defeated resolution (CP 10138) in that the change agreed upon was from 'residence' to 'local retail' and the area involved was smaller than originally submitted. The difference between the defeated resolution use (restricted retail) and 'local retail' is that a 'local retail' use designation permits stores of the ground floor but no commercial development on the upper floors; whereas in a restricted retail district generally commercial uses can be had in the entire building. It is to be recalled that the defendant Zelnik had originally in his letter requested a change from residence use to business use. This new resolution by the Planning Commission was unanimously adopted by the Board of Estimate on June 11, 1954.
The plaintiff urges that the Zoning Amendment was adopted in violation of Section 201 of the New York City Charter and Section 200-2.0 of the Administrative Code of the City of New York, and is therefore illegal, unconstitutional and void. Supporting this contention the plaintiff asserts that the amendment constitutes 'spot zoning'. The defendants allege that the amendment was not illegal, unconstitutional or void, and did not constitute spot zoning, and urge that the City Planning Commission properly initiated the proceedings under Section 200 of the Charter and that it was justified in treating this matter under Section 200 and not under Section 201, as contended for by the plaintiffs.
Section 200 provides in part as follows:
'* * * the commission may upon its own initiative at any time or upon application as provided in section two hundred one, adopt a resolution for any such purpose subject to the limitations provided by law.'
Section 201 provides:
The fundamental difference between Sections 200 and 201 is that the Commission under Section 201 must act on all formal applications for zoning between May 5 and June 5 of each year, and the applications must be filed during the preceding month of April of that year. In the instant case the zoning change was made in Octover and November, 1953.
The sections differ also in that under Section 201 the application must be by a formal application on forms provided and supplied by the Planning Commission, whereas under Section 200 the Commission may upon its own initiative at any time adopt such a resolution.
It is, therefore, apparent that under Section 200 there are no limitations as to time, whereas under Section 201 the application must be brought during the month of April and must be decided upon between the 5th day of May and the 30th day of June.
The plaintiff relies solely on the fact that this matter was first called to the Planning Commission's attention by letter dated May 22, in which the defendant Zelnik sought a change of the zoning regulation. The plaintiff, therefore, asserts that this letter must be treated as a formal application under Section 201, and that the Planning Commission was without power to consider it under Section 200. A full appreciation of the duties imposed upon the Planning Commission and the powers vested in it by the enactment of Sections 200 and 201 does not substantiate the plaintiff's position.
In Rosenzweig v. Crinnion, 1953, 126 N.Y.S.2d 692, a case very similar to the case at bar, the court held that despite the fact that the need for a zoning change was first brought to the attention of the Planning Commission by formal application of interested property owners, this did not foreclose the right of the Planning Commission to consider the application under Section 200.
The court in its opinion wrote in part as follows:
'The difficulty with Putter's claim of invalidity is that the zoning resolution was not adopted pursuant to Section 201 of the Charter but rather pursuant to a provision of Section 200 of the Charter which permits the Commission upon its own initiative to adopt resolutions for zoning changes. Section 200 provides that:
"Any existing resolution or regulation * * * may be amended, repealed or added to only in the following manner: the commission may upon its own initiative at any time or upon application as provided in section two hundred one, adopt a resolution for any such purpose'. (Italics supplied.)
'It is to be noted that if the Commission acts upon its own initiative it may do so 126 N.Y.S.2d at pages 699-700.
The words 'may upon its own initiative at any time' cannot be given such a narrow and restricted interpretation as contended for by the plaintiff. The word 'initiate' has been defined as 'an introductory step or action--a first move: beginning: start.' (Funk & Wagnall's New Standard Dictionary.)
The legislative intent to be given to the words 'at any time' indicates that it be construed broadly, liberally, and with a view towards accomplishing the purposes intended. There is no definite requirement that the idea or request for change must have originated within the Commission. The legislative purpose is satisfied when the Commission takes definite action on a proposition, whether the idea or suggestion emanates or originates with the Commission or is brought to its attention by some person or in any manner.
Consequently, the Court concludes the plaintiff's position is technical, specious and without foundation in fact or law. The Commission properly considered this change under Section 200.
Counsel for the plaintiff submits a learned dissertation on the law affecting 'spot zoning' and concludes with the brief statement that the facts recited by him in his brief clearly support his theory that this constitutes spot zoning. I have carefully studied the facts alluded to by him, but I am unable to come to the same conclusion.
There is no direct proof to establish that the Commission's act was arbitrary and capricious or that it constituted spot zoning. The plaintiff...
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