Parkview Associates v. City of New York

• Decision Date: 03 March 1983
• Citation: 519 N.E.2d 1372,71 N.Y.2d 274,525 N.Y.S.2d 176
• Parties: , 519 N.E.2d 1372 In the Matter of PARKVIEW ASSOCIATES, Appellant, v. CITY OF NEW YORK et al., Respondents, and Civitas Citizens, Inc., Intervenor-Respondent. . Jeffrey L. Braun, Hector Torres and Audry Weintrob, New York City, for appellant. Peter L. Zimroth, Corp. Counsel (Phyllis Arnold, Pamela Seider Dolgow and Elizabeth S. Natrella, New York City, of counsel), for respondents. Robert S. Davis and Karl S. Coplan, New York City, for intervenor-respondent. Jeremiah S. Gutman, Arthur C. Silverman and Leonard Benowich, New York City, for the New York Society of Architects and another, amici curiae. Martin Gallent and Marc Silver, New York City, for Carnegie Hill Neighbors and others, amici curiae. OPINION OF THE COURT BELLACOSA, Judge. We hold in this case involving the height of a building on Park Avenue in Manhattan, already constructed in excess of the height limitations of applicable zoning provisions, that estoppel is not available to preclude a governmental entity from discharging its statutory duties or to compel ratification of prior erroneous implementation in the issuance of an invalid building permit. The rare exception to the unavailability of estoppel against governmental entities may not, in any event, be invoked in this case where reasonable diligence by a good-faith inquirer would have disclosed the true facts and the bureaucratic error. We may not address the additional claim that governmental correction of prior administrative action, erroneously overriding applicable zoning provisions, constitutes an unconstitutional taking inasmuch as there is a pending variance application. We thus affirm the Appellate Division's order, 129 A.D.2d 405, 513 N.Y.S.2d 342, affirming the denial of relief to plaintiff. Owner-builder Parkview's property, purchased in 1982, is at the southeast corner of Park Avenue and 96th Street, located 90- to 190-feet east of Park Avenue. A portion of the property is within a Special Park Improvement District (P.I.D.) created by en
• Court: New York Court of Appeals Court of Appeals

Page 176

525 N.Y.S.2d 176

71 N.Y.2d 274, 519 N.E.2d 1372

In the Matter of PARKVIEW ASSOCIATES, Appellant, v. CITY OF NEW YORK et al., Respondents and Civitas Citizens, Inc., Intervenor-Respondent.

Court of Appeals of New York.

Jeffrey L. Braun, Hector Torres and Audry Weintrob, New York City, for appellant.

Peter L. Zimroth, Corp. Counsel (Phyllis Arnold, Pamela Seider Dolgow and Elizabeth S. Natrella, New York City, of counsel), for respondents.

Robert S. Davis and Karl S. Coplan, New York City, for intervenor-respondent.

Jeremiah S. Gutman, Arthur C. Silverman and Leonard Benowich, New York City, for the New York Society of Architects and another, amici curiae.

Martin Gallent and Marc Silver, New York City, for Carnegie Hill Neighbors and others, amici curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

We hold in this case involving the height of a building on Park Avenue in Manhattan, already constructed in excess of the height limitations of applicable zoning provisions, that estoppel is not available to preclude a governmental entity from discharging its statutory duties or to compel ratification of prior erroneous implementation in the issuance of an invalid building permit. The rare exception to the unavailability of estoppel against governmental entities may not, in any event, be invoked in this case where reasonable diligence by a good-faith inquirer would have disclosed the true facts and the bureaucratic error. We may not address the additional claim that governmental correction of prior administrative action, erroneously overriding applicable zoning provisions, constitutes an unconstitutional taking inasmuch as there is a pending variance application. We thus affirm the Appellate Division's order, 129 A.D.2d 405, 513 N.Y.S.2d 342, affirming the denial of relief to plaintiff.

Owner-builder Parkview's property, purchased in 1982, is at the southeast corner of Park Avenue and 96th Street, located 90- to 190-feet east of Park Avenue. A portion of the property is within a Special Park Improvement District (P.I.D.) created by enactment of the Board of Estimate of the City of New York in 1973. The enabling and authorizing resolution limits the height of new buildings in that district to 19 stories or 210 feet, whichever is less. The P.I.D. boundary ran uniformly 150-feet east of Park Avenue until, by resolution of the Board of Estimate on March 3, 1983, the metes and bounds description of the P.I.D. was amended, providing in part for a reduction from 150 to 100 feet between East 88 Street to midway between 95th and 96th Streets. The boundary north of this midblock division, pursuant to the metes and bounds, remained at all times 150 feet. Plaintiff's property was thus unaffected by this 1983 change and has always been governed by the 1973 original enactment.

Zoning Map 6b accompanying the March 1983 resolution depicted the amended boundary with a dotted line which fell within a shaded area constituting the existing P.I.D. A numerical designation of "150", included on earlier versions of the map to show the setback, had been removed and a new designation of "100" was inserted adjacent to the dotted line. This left no numerical designation along the northern part of the boundary. The "150" designation signaling the retention of the boundary north of the 95th-96th Street midblock line was reinserted on a version of Map 6b published to reflect a subsequent resolution of September 19, 1985.

Parkview's initial new building application, submitted on June 5, 1985, was rejected for failure to show compliance with the P.I.D. height limitation. Based upon its interpretation of the version of Zoning Map 6b existing in the summer of 1985, Parkview concluded that a 100-foot boundary controlled, and its revised building application, submitted on July 31, 1985, limited the height of the proposed new building to 19 stories between its property line and 100 feet from Park Avenue. The portion of the building setback more than 100 feet from Park Avenue was to rise 31 stories. The application was approved by the Department of Buildings as conforming with all zoning requirements on August 12, 1985 and, after rereview, a building permit was issued on November 21, 1985 by the Borough Superintendent. There is no dispute that at the time the permit was issued the Department erroneously interpreted amended Map 6b as changing the boundary on 96th Street to 100 feet. On July 11, 1986, however, after substantial construction, the Borough Superintendent of the Department of Buildings issued a stop work order for those portions of the building over 19 stories within the full 150 feet of Park Avenue. After review, the Commissioner of Buildings partially revoked the building permit, consistent with the stop work order, on the grounds that the permit, to the extent it authorized a height of 31 stories from 100-feet back instead of 150-feet back, was invalid when issued.

Parkview appealed the Commissioner's decision to the Board of Standards and Appeals (BSA), which denied the appeal and sustained the determination of the Commissioner. In sum, the BSA found that the dotted lines on Zoning Map 6b within the shaded P.I.D., expressly connoting a reduction to 100 from 150 feet of the protected area, excluded the 96th Street frontage of plaintiff from any change; that the original resolution with its metes and bounds description, which was never changed in any event, controlled over the map depicting the boundaries even if the map could be misread; and that the boundary-height limitation applicable...