Opinion
December 7, 1970
In a proceeding to review a determination of the Board of Standards and Appeals of the City of New York, petitioner appeals from a judgment of the Supreme Court, Kings County, dated May 6, 1970, which dismissed the petition on the merits and confirmed the determination. Judgment affirmed, without costs. In our opinion, the Board of Standards and Appeals was authorized under local law (New York City Zoning Resolution, §§ 11-412, 11-413) to make the determination in question, enlarging an already existing nonconforming use and simultaneously changing the use, so enlarged, to a new nonconforming use. At bar, the board did no more than to grant an alteration permit to enlarge and alter the two existing commercial buildings on 9th Street and to construct, using portions of the existing buildings, a supermarket on 9th Street, with accessory parking space. The board approved the project by a resolution finding that this was an appropriate case under sections 11-412 and 11-413 of the Zoning Resolution for the "enlargement in lot area and the change in occupancy from parking lot and diner to a supermarket with accessory parking in the open area". In support of its determination, the board made findings that the proposed supermarket will not interfere with residential development in the area and will complement the future development of the surrounding area, which will include apartment construction. In the circumstances mentioned there is no merit to appellant's contention that sections 11-412 and 11-413 of the Zoning Resolution, when read together, did not permit enlargements which would include a new nonconforming use. Sections 72-01 and 71-11 of the Zoning Resolution specifically authorized the board to interpret and, in discretion, apply all the provisions of the Zoning Resolution. It was, therefore, proper, and within the board's endowed authority, to construe the zoning resolution so as to regard the application for an enlargement and a simultaneous change of use as not being the equivalent of an application for an enlargement of the use which had previously been authorized under the provisions of section 11-413. The board's detailed findings amply support this exercise of discretion. Accordingly, it is concluded that the board properly acted in the instant case, since, by fair import, sections 11-412 and 11-413 of the Zoning Resolution authorized it to enlarge an existing nonconforming use and did not preclude its power to simultaneously change such use to a new nonconforming use, as the minority opinion concedes. The wisdom of the board's action and its lack of concern with the Y.M.C.A.'s futile efforts to buy the subject property are not the concern of the courts. The courts are not to substitute their judgment for that of an administrative agency, unless it clearly appears that the agency acted in arbitrary or illegal manner ( Matter of Fiore v. Zoning Bd. of Appeals of Town of Southeast, 21 N.Y.2d 393, 396). As we interpret the board's action and the local zoning law pursuant to which it acted, there is no warrant for the view that the courts may proscribe the action of the Board to situations where only structural changes in existing buildings are authorized. As we view it, the local law, broadly construed, in accordance with its own tenor, cloaks the board with power to deal not only with structural changes but with nonconforming uses. Christ, P.J., Rabin and Hopkins, JJ., concur; Munder, J., dissents and votes to reverse the judgment and to annul the determination under review, with the following memorandum: The petitioner herein sought to review and annul a determination of the respondents who comprise the New York City Board of Standards and Appeals (the "board"), which permitted the intervenor to enlarge and change the existing nonconforming use of the latter's property. The property is lots 24 through 36 and 57 through 62 of Block 1005, located at 341-349 9th Street and 312-332 8th Street, between Fifth and Sixth Avenues, in Brooklyn. It is L-shaped, extending 125 feet along 9th Street and 232 feet along 8th Street, with a maximum depth of 180 feet, i.e., the distance between 8th and 9th Streets. The property presently contains two three-story brick buildings at 341 and 343 9th Street, which house commercial users on the first floor and residential users on the second and third floors; two three-story brownstone dwellings, at least one of which is vacant, which faces on 8th Street; a vacant diner which faces on 9th Street; and a commercial parking lot. The property is in an R6 General Residence District under the 1961 New York City Zoning Resolution (the "Zoning Resolution"). However, it is used almost exclusively for the commercial purposes described above. These were legally established in part under pre-1961 commercial zoning and in part under a variance granted by the board in 1940, and renewed periodically, for a commercial parking lot for more than five vehicles. In essence, the determination which prompted this proceeding had granted the intervenor permission to remove the buildings presently on the property and construct a one-story supermarket with accessory parking space. In so acting, the Board relied upon sections 11-412 and 11-413 of the Zoning Resolution. I have no doubt that in a given situation these sections can be applied simultaneously. That is, the Board could, under section 11-412, enlarge a certain nonconforming use and at the same time, under section 11-413, change that enlarged nonconforming use into a new nonconforming use. The problem I have with the instant case is that, in my opinion, the board misapplied section 11-412 and this requires that its determination be annulled. Section 11-412 of the Zoning Resolution provides as follows: "Alterations, extensions, or enlargements `Repairs or incidental alterations may be made and in appropriate cases the authorizing agency may permit structural alterations, extensions or enlargements. However, the use of any building or other structure shall not be extended and the building or other structure shall not be enlarged, in excess of 50 percent of the floor area of such building (or size of such structure) occupied or utilized by the use on the effective date of this resolution, and, except as otherwise provided in Article VII, no structural alterations, extensions, or enlargements shall be authorized for a new nonconforming use authorized under the provisions of Section 11-413 (Change of use).'" To me, it is clear this section deals with structural alterations, extensions or enlargements. Yet the board claims in its brief in this court that section 11-412 was relied upon to enlarge the existing parking lot. The lot is obviously not a "building" or other "structure". The board itself, again, in its brief, acknowledges that section 11-412 seems to apply only to enlargements of the use of buildings or structures and that this would not include a parking lot. However, it argues around this point as follows: "Since a parking lot is not a building or structure, it would appear that it can be enlarged in excess of 50%" (emphasis mine). I cannot agree. As the Special Term noted, the Zoning Resolution must be strictly construed, and it is precisely because the parking lot is not a building that I conclude that it cannot be enlarged under the wording of section 11-412. Interestingly, the intervenor takes a slightly different tack from the board. She argues that section 11-412 was applied not to enlarge the parking lot but to enlarge the two commercial buildings located at 341 and 343 9th Street. She argues that the increase in commercial floor area from that occupied by these buildings to that occupied by the supermarket was within the 50% limitation contained in section 11-412. The difficulty here is that the two commercial buildings are not being structurally enlarged but are being torn down and replaced by an entirely new building (the supermarket). I do not believe this is permitted under a strict interpretation of section 11-412. There is also the question of the vacant diner. It has been out of business for 10 years. To me, that clearly constitutes an abandonment of a nonconforming use (Anderson, Zoning Law and Practice in New York State, § 6.43). Yet the board's determination would permit the diner to be replaced by a different nonconforming use. This is directly contrary to section 52-61 (eff. Dec. 15, 1961) of the Zoning Resolution which states in pertinent part that if for a continuous period of two years "the active operation of substantially all the non-conforming uses in any building or other structure is discontinued, such land or building or other structure shall thereafter be used only for a conforming use". (See generally, Anderson, op. cit. supra, §§ 6.45-6.46.) Finally, the existing parking lot is in operation pursuant to a variance which was granted in 1940. Pursuant to its authority, the board has renewed the variance periodically, the latest time in 1967. It has seen fit, however, to impose a time limitation, and the variance will expire in 1972. I do not feel that this temporary status should be the basis for extending, enlarging or changing a nonconforming use to one of limitless duration. Benjamin, J., not voting.