People ex rel. Sheldon v. Bd. of Appeals of City of New York

• Decision Date: 16 January 1923
• Citation: 234 N.Y. 484,138 N.E. 416
• Parties: PEOPLE ex rel. SHELDON et al. v. BOARD OF APPEALS OF CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 484

138 N.E. 416

PEOPLE ex rel. SHELDON et al.

v.BOARD OF APPEALS OF CITY OF NEW YORK et al.

Court of Appeals of New York.

Jan. 16, 1923.

Certiorari by the People of the State of New York, on the relation of George R. Sheldon and others, against the Board of Appeals of the City of New York and others, impleaded with others. From an order of the Appellate Division of the Supreme Court (200 App. Div. 907,192 N. Y. Supp. 945) affirming an order of the Special Term sustaining the writ and annulling and setting aside a determination of the Board of Appeals on the ground that it exceeded its jurisdiction, the respondents appeal.

Reversed, and writ dismissed.

Appeal from Supreme Court, Appellate Division, First Department.

John P. O'Brien, Corp. Counsel, of New York City (John F. O'Brien, Willard S. Allen, and William T. Kennedy, all of New York City, of counsel), for appellants Board of Appeals and others.

Henry W. Taft and Paxton Blair, both of New York City, for appellant Farmers' Loan & Trust Co.

John G. Milburn, Walter F. Taylor, and Edwin De T. Bechtel, all of New York City, for respondents.

Edward M. Bassett, amicus curiae.

HOGAN, J.

The Farmers' Loan & Trust Company, as trustee and executor of the last will and testament of William Waldorf Astor, deceased, is owner of eight lots of land each about 95 feet in depth on the westerly side of Madison avenue extending from Thirty-Fifth street on the south to Thirty-Sixth street on the north, also six lots immediatelyin the rear of the avenue lots and adjoining the same located on the northerly side of East Thirty-Fifth street, and five lots on the south side of Thirty-Sixth street, the street lots being approximately 100 feet deep, making a plot of land 200 feet on Madison avenue, 245 feet on Thirty-Fifth street, and 220 feet on Thirty-Sixth street.

By the building zone resolution adopted by the board of estimate and apportionment of the city of New York on July 25, 1916, pursuant to power delegated to it by the Legislature, the lots on the westerly side of Madison avenue, 200 feet frontage, 95 feet in depth, were placed in the zone or district restricted to use for residence purposes. The balance of the block bounded by Fifth avenue on the west, Thirty-Sixth street on the north, and Thirty-Fifty street on the south, was placed in the zone district allotted to business, and included lots of land hereinbefore referred to on Thirty-Fifty and Thirty-Sixth streets.

November 16, 1917, the owner of the property applied to the board of appeals for permission to erect a business building upon the described plot of land, submitted a proposed plan of the same, and a verified petition with affidavits attached in support of the application. Prior to consideration of the application by the board of appeals, at the suggestion of the chairman of the board, the owner made application to the superintendent of buildings for a permit to erect the proposed bulding, which permit was on December 5, 1917, denied upon the ground that the easterly portion of the plot proposed to be built upon was within a residence district as shown by the zone map. From such decision the owner appealed to the board of appeals. The latter named then had before it the first petition for a variation of the use district regulations and the appeal from the decision of the superintendent of buildings.

The petition and accompanying affidavits presented to the board of appeals by the owner and likewise affidavits in opposition to the application contain many statements unnecessary to recite. Certain facts of a general character are pertinent tending as they do to disclose the location of the property of the owner, the purpose for which the same had been used, and changed condition of the locality, and adaptability of the property at the time of the making of the application for a permit as stated. Such facts are that the plot of land in controversy for a long period of time formed a part of the most exclusive residential sections of the city. It was improved in or about the year 1870 by the erection of 19 houses, 8 of which fronted on Madison avenue, all of which were occupied as private residences down to about 1904 or 1905, since which time the advance of business northward acorss Thirty-Fourth street and eastward from Fifth avenue acorss Madison avenue had rendered their popularity and adaptability for use as private residences negligible. Madison avenue has become one of the main thoroughfares of the city, the busiest portion being between Thirty-Fourth and Forty-Second streets. In recent years sales of property thereon have been principally for business purposes. In 1918 south of the plot of land in question Madison avenue contained only seven residences on both sides of the same as far south as Twenty-Third street. The value of the land on Madison avenue has depreciated at least 50 per cent. by reason of the restriction of the same to residential purposes, and since 1905 it has been difficult for the owner to obtain tenants for the houses, the principal tenants secured at a decreased rental using the houses for rooming or boarding purposes, three houses only being occupied as residences.

Immediately south of the plot of land of appellant stands the Altman store bounded northerly by Thirty-Fifth street, southerly by Thirty-Fourth street, easterly by Madison avenue, and westerly by Fifth avenue.

The blocks northerly of Altman's store from Thirty-Fifth to Fortieth streets on the westerly side of Madison avenue by the zone map were restricted as follows: From Thirty-Fifth to Thirty-Seventh streets residence district, Thirty-Seventh to Thirty-Eighth streets business district, Thirty-Eighth to Thirty-Ninth street residence district, and Thirty-Ninth street to Fortieth street business district.

After due notice by publication as required by law a public hearing was held by the board of appeals to consider the appeals pending before it. At such meeting counsel for the owner, appellant, and for parties in opposition were heard at length. On May 1, 1918, the board of appeals sustained the appeal and adopted a resolution wherein it imposed certain restrictions in relation to the building to be erected by the owner, quoted sections of the building zone resolution as to the power conferred upon it, and in its conclusions recited:

‘Whereas in the opinion of the board of appeals there are unnecessary hardships in the way of carrying out the strict letter of the provisions of the building zone resolution in this specific case; and appropriate conditions can be imposed upon the extension of the building into the residence district so as to properly safeguard the more restricted district; and the general purpose and intent of the building zone resolution to promote the general welfare and do substantial justice both to the property owners and to the public interest can best be served by permitting such extension. * * *’ The decision of the board of appeals affected only the forntage of the owner on Madison avenue, the lots on Thirty-Fifth and Thirty-Sixth streets being in a business district.

The courts below have decided that the board of appeals exceeded its power. In that event, the owner, appellant, argues that the zoning law is wholly invalid as the same is violative of its constitutional and property rights. A solution of the question involved necessitates consideration of the provisions of the charter of the city of New York.

Chapter 470, Laws of 1914, added two sections to the charter of the city of New York, numbers 242-a and 242-b. While the latter section 242-b, is the section particularly applicable to the present case, I deem it important to quote material provisions of both sections as they read in 1916, when the zone resolution was adopted.

Section 242-a:

‘The board of estimate and apportionment shall have power to regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts, and other open spaces,’ and in carrying out such purposes to divide the city into districts, adopt regulations which shall be designed to promote the public health and welfare. ‘The board shall pay reasonable regard to the character of buildings erected in each district, the value of the land and the use to which it may be put to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of the lands throughout the city.’

The section further provided for the appointment of a commission to recommend boundaries and regulations, etc. Then followed a provision:

‘The board may from time to time after public notice and hearing amend, supplement or change said regulations or districts but in case a protest against a proposed amendment, supplement or change * * by the owners of twenty per centum [or more] of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by a unanimous vote of the board.’

Section 242-b:

‘The board of estimate and apportionment may regulate and...