Opinion
111748/2010.
March 8, 2011.
DECISION/ORDER
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ___
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Papers Numbered Notice of Motion and Affidavits Annexed ................................. Notice of Cross Motion and Answering Affidavits ........................ Replying Affidavits .................................................... Exhibits ..............................................................Petitioner Jean Chin brought this petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to annul and vacate a determination made by the Board of Standards and Appeals of the City of New York ("BSA"), filed on August 5, 2010 (the "Resolution"). In the Resolution, the BSA granted multiple variances to respondents 516 East 6th Street, LLC and 514 East 6th Street, LLC (together, the "Building Respondents") to provisions of the New York State Multiple Dwelling Law (MDL). For the reasons set forth below, petitioner's petition is denied.
The relevant facts are as follows. The Building Respondents sought variances to provisions of the MDL to enable them to add an additional floor or floors to the 5-story tenement buildings owned by them. Both buildings were built prior to 1948. The BSA reviewed their application under § 310(2)(a) of the MDL. Petitioner, a tenant in the buildings, contends that the BSA reviewed their application under the wrong section and that the proper section to be applied is § 310(2)(c). MDL § 310(2) permits the BSA to allow building owners to not comply with certain provisions of the MDL if they are too onerous. MDL § 310(2) currently states:
Where the compliance with the strict letter of this chapter causes any practical difficulties or any unnecessary hardships the board shall have the power . . . to vary of modify any provision or requirement of this chapter . . . as follows:
a. For multiple dwellings and building existing on July first, nineteen hundred forty-eight . . . provisions relating to:
(1) Height and bulk;
(2) Required open spaces;
(3) Minimum dimensions of yards or courts;
(4) Means of egress;
(5) Basements and cellars in tenements and converted dwellings.
b. For multiple dwellings and buildings erected or to be erected or altered after July first, nineteen hundred forty-eight pursuant to plans filed prior to December fifteenth, nineteen hundred sixty-one, provisions relating to:
(1) Required open spaces; or
(2) Minimum dimensions of yards or courts.
c. For multiple dwellings and buildings erected or to be erected or altered pursuant to plans filed on or after December fifteenth, nineteen hundred sixty-one . . . provisions relating to:
(1) Height and bulk;
(2) Required open space; or
(3) Minimum dimensions of yards or courts.
Petitioner is not entitled to any relief because the court must defer to the reasonable statutory interpretation of the agency applying the statute. The courts have held that when a statute is ambiguous, "construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld." Beekman Hill Association, Inc. v Chin, 274 A.D.2d 161, 167 (1st Dept 2000) (citations omitted); see also Howard v Wyman, 28 N.Y.2d 434, 438 (1971); Johnson v Joy, 48 N.Y.2d 689, 691 (1979).
In the present case, the court finds that the statute is ambiguous. On its face, either subsection (a) or subsection (c) could be applicable to the present case and there are viable arguments as to why each different subsection should apply as well as problems with those arguments. However, only one subsection can be applied. Because both interpretations are reasonable, thereby creating an ambiguity, this court must defer to the relevant agency's interpretation. See Beekman Hill Association, Inc., 274 A.D.2d at 167; see also Howard, 28 N.Y.2d at 438; Johnson, 48 N.Y.2d at 691.
By its terms, MDL § 310(a) applies because the relevant buildings are buildings "existing on July first, nineteen hundred forty-eight." However, the application of subsection (a) is also problematic since it does not explicitly apply to future "alterations" but merely applies to buildings already "existing" (unlike subsection (c)). Although this might, at first glance, seem to mean that this subsection is meaningless, since variances are generally needed because of proposed alterations, in this context it could have application where buildings were being converted from single-family to multiple dwellings within the meaning of the statute. When such a building undergoes a change in legal status, it does not necessarily have to undergo any alterations, but it still may need a variance from certain requirements, such as the size of yards.
Subsection (c) is also applicable on its face. However, applying subsection (c) presents its own problems. In the first instance, subsection (a) would be rendered nearly moot if subsection (c) applied. If all buildings to be altered pursuant to plans filed after December 15, 1961 are governed by subsection (c), this would include alterations to buildings which existed on July 1, 1948, leaving subsection (a) applicable only to those buildings seeking a change of legal status, rather than those undergoing alterations. Although subsection (b) is itself moot, that subsection is self-terminating by its very language whereas subsection (a) is not. By its terms, subsection (b) only applied to buildings erected or altered after July 1, 1948 pursuant to plans filed by December 15, 1961.
These equally reasonable (and equally problematic) interpretations of this ambiguous statute are at complete odds with each other. They cannot be reconciled. It is impossible to apply both subsections to the variance application. Therefore, since the BSA's interpretation of the statute is neither irrational or unreasonable, this court must defer to it. See Beekman Hill Association, Inc., 274 A.D.2d at 167; see also Howard, 28 N.Y.2d at 438; Johnson, 48 N.Y.2d at 691.
Accordingly, petitioner's petition is denied. This constitutes the decision, order and judgment of the court.