Opinion
No. 100566/15.
04-12-2016
In the Matter of the Application of Thomas KEARNY, Sara Kearny, Richard Keiser, Christine Ruggiero, Tom Blancato, Elizabeth Goodall, Richard Burger, Louisa Nolte, Paulina Nolte, Astrid Nolte, Curtis Hougland, Debra Bosniak, Shoshanah Brown, Dr. Katherine Ender, Idamis Regan, Joseph D. Regan, Bianca Regan, Robin Shepard, Walter Donway, John Peterson, Cela Peterson, Rachel Lipson, George Schultz, Jessica Schultz, Andrew Marber, Brian Porzak, Christina Raccuia, Forrest Williams, Frazier Moore, Harry Lines, Heimata Rutgers, Ian Manger, Janis Donnaud, Jennifer Strent, Jenny Pen, John Alexander Suszko, Kyle Langenbach, Lisa Paolella, Mariagiovanna Guatteri, Moltrasio Massimo, Peter McKie, Joan Richardson, Robert Blacker, Robert Strent, Tommy Naples, Weiman Seid, and Willard Cook, Petitioners, v. The NEW YORK CITY BOARD OF STANDARDS AND APPEALS, New York City Department of Buildings, Speakeasy 86, LLC, and Chumley's 86, LLC, d/b/a “Chumley's,” Respondents.
Mallin & Cha, P.C., New York City (Barry Mallin of counsel), for petitioners. Bryan Cave, LLP, New York City (Phyllis Arnold of counsel), for respondent Speakeasy 86, LLC. Law Offices of William M. Poppe PLLC, New York City, for respondent Chumley's 86, LLC. Zachary W. Carter, Corporation Counsel, New York City (Jasmine M. Georges of counsel), for respondents, the New York City Board of Standards and Appeals & the New York City Department of Buildings.
Mallin & Cha, P.C., New York City (Barry Mallin of counsel), for petitioners.
Bryan Cave, LLP, New York City (Phyllis Arnold of counsel), for respondent Speakeasy 86, LLC.
Law Offices of William M. Poppe PLLC, New York City, for respondent Chumley's 86, LLC.
Zachary W. Carter, Corporation Counsel, New York City (Jasmine M. Georges of counsel), for respondents, the New York City Board of Standards and Appeals & the New York City Department of Buildings.
Recitation, as required by CPLR 2219(a), of the papers considered in reviewing the petition.
| Papers | Numbered |
|---|---|
| Notice of Petition | 1 |
| Respondents' Verified Answers | 2–4 |
| Respondents' Memorandums of Law in Opposition | 5–6 |
| Petitioners' Verified Reply | 7 |
| Petitioners' Memorandum of Law in Reply | 8 |
DECISION/ORDER
GERALD LEBOVITS, J.
Upon the foregoing papers, it is ordered that the petition is denied.
Petitioners are residents of the neighboring buildings of the subject building, 86 Bedford Street, New York, New York (Building). Petitioners commenced this Article 78 proceeding against respondents, the New York City Board of Standards and Appeals (BSA), the New York City Department of Buildings (DOB), Speakeasy 86, LLC (Speakeasy), and Chumley's 86, LLC (Chumley's) to annul, vacate, set-aside, or reverse the BSA's determination upholding the DOB's reinstatement of Speakeasy and Chumley's nonconforming zoning permit. The nonconforming zoning permit allows Chumley's to continue operating as a bar and restaurant in a residential district. Petitioners are in the “zone of interest” and would be affected by the reopening of a business in their residential district. (See Sun–Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 409 [1987].) Petitioners also seek an order to stay the commencement or continuation of work at the Building until this proceeding concludes. Petitioner further seeks costs, disbursements, and counsel fees.
The following facts are undisputed. Speakeasy is the owner of the Building. Chumley's opened on the Building's first floor and cellar in 1928. At that time, the area was zoned for businesses, although the Building's certificate of occupancy did not reflect Chumley's use of the first floor and cellar as a business. In 1961, the Building's district was rezoned for residential use only. Chumley's was permitted to continue to operate in the Building as a nonconforming use that lawfully existed before the residential zoning ordinance was enacted. Chumley's operated until April 2007, when a chimney in the building partially collapsed and the DOB issued a vacate order to the Building's occupants because the Building was not structurally sound. Chumley's has not operated in the Building since April 2007.
The BSA's decision upholding the DOB's reinstatement of Speakeasy and Chumley's nonconforming zoning permit was not arbitrary and capricious. A court may not annul an agency's determination unless, on review, the court finds the determination arbitrary and capricious: without sound basis in reason and generally taken without regard to the facts. (Matter of Pell v. Bd. of Educ. of Union Free Sch. Dist., 34 N.Y.2d 222, 231 [1974].) If the agency's decision has any reasonable basis in fact, the challenged determination must be sustained. (Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 314 [1976].)
The court is not persuaded that the Zoning Resolution (Resolution), which provides for the elimination of nonconforming uses, should prevent the application of a judicially created exception. If the nonconforming use of a property is discontinued for two continuous years, the property must thereafter be used only for a conforming use. (Zoning Resolution § 52–61.) The two-year limit to discontinue a nonconforming use does not apply if the nonconforming use was discontinued because of war, strikes, or other labor difficulties; a governmental program of material rationing; or the construction of a duly authorized improvement project by a governmental body or a public-utility company. (Id. ) An additional exception exists in the First Department under the Chin test. (Matter of 149 Fifth Ave. Corp. v. Chin, 305 A.D.2d 194, 195 [1st Dept 2003].) In Chin, the court found that under a three-pronged test, a nonconforming use of property is not discontinued if interruption of its use is “compelled by legally mandated, duly permitted and diligently completed repairs.” (Chin, 305 A.D.2d at 195.)
The BSA reasonably upheld the DOB's application of the Chin test. The Chin court did not limit Chin's three-pronged test to situations that would result in an unconstitutional taking. (See Chin, 305 A.D.2d at 195.) Also, the Resolution does not limit the exceptions to the two-year period of discontinued nonconforming use to those listed in the Resolution. (See Zoning Resolution § 52–61.) Therefore, this court rejects petitioners' argument that the DOB and BSA should not have applied the Chin test.
The BSA's determination was made under the agency's discretion with a reasonable basis in the record.
First, the BSA reasonably upheld the DOB's determination that a legal mandate compelled the interruption of Chumley's nonconforming use of the Building. A mandate is “a command, order, or direction, written or oral, which a court is authorized to give and a person is bound to obey.” (Black's Law Dictionary 663 [6d ed.1991].) Under General Construction Law § 28–a, a mandate must be in writing. A vacate order may be given verbally or in writing. (Administrative Code of the City of New York § 28–207.4.) A verbal order shall be followed promptly by a written order and must include the reason the vacate order is issued. (Id. )
On April 5, 2007, the DOB's assistant commissioner for investigative engineering services verbally directed Speakeasy to make emergency repairs to the Building and to develop a plan for necessary reconstruction. The DOB then issued a written vacate order on April 17, 2007. The vacate order specified as follows: “It is ORDERED that the aforesaid building or part thereof remain vacant and unoccupied until such time as the building is declared safe by the Department.” (Plaintiff's exhibit H.) The vacate order is still in effect. The vacate order prevented Chumley's from reinstating its business before the two-year period for discontinuance of a nonconforming use ended. Based on these facts, the DOB reasonably determined that the verbal directions and vacate order were legal mandates that compelled the interruption of Chumley's nonconforming use of the Building.
A legal mandate need not pre-date the interruption of a nonconforming use of property. A fire and the subsequent reconstruction closing a business to the general public does not discontinue nonconforming use. (Matter of Hoffman v. Board of Zoning & Appeals, 155 A.D.2d 600, 601 [2d Dept 1989].) Whether Chumley's stopped operating because of the collapse of the chimney on April 4, 2007, or because of the vacate order of April 17, 2007, is immaterial. The vacate order, which is still in effect, prevented Chumley's from operating after April 17, 2007. Therefore, the vacate order compelled the interruption of Chumley's nonconforming use of the Building.
Second, the BSA reasonably upheld the DOB's determination that duly permitted repairs compelled the interruption of Chumley's nonconforming use of the Building. After Chumley's stopped operating due to the vacate order, Chumley's obtained the necessary permits to perform repairs.
Petitioners may not argue that repair work on the Building before April 5, 2007, was not duly permitted. Petitioners did not raise that argument during proceedings before the BSA. Judicial review of administrative determinations is confined to the arguments in the record. (72A Realty Assocs. v. New York City Envtl. Control Bd., 275 A.D.2d 284, 286 [1st Dept 2000].) The court must disregard petitioners' argument concerning repair work before April 5, 2007.
Third, the BSA reasonably upheld the DOB's determination that diligently completed repairs compelled the interruption of Chumley's nonconforming use of the Building. Since the vacate order, the DOB issued three separate Emergency Declarations dictating how the construction was going to proceed. The Building was also subject to a series of full and partial Stop Work Orders. Speakeasy submitted evidence of contracts and monthly payment requisitions that demonstrate that the work at the Building's site was continuous. The BSA considered the complexity of the Building's work as a landmark-designated building constructed in the early 1800s. It also considered Speakeasy's ongoing communication with the DOB and its adherence to the DOB's directives. This supports the court's finding that the BSA reasonably upheld the DOB's determination.
Accordingly, it is hereby ORDERED and ADJUDGED that the petition is denied and that this proceeding is dismissed.
This opinion is the court's decision and order.