Opinion
May, 1921.
Carter, Ledyard Milburn (Edmund L. Baylies and Edwin De T. Bechtel, of counsel), for relators.
John P. O'Brien (William T. Kennedy, of counsel), for Board of Appeals.
Cadwalader, Wickersham Taft (Henry W. Taft, of counsel), for Farmers' Loan and Trust Company.
Certiorari, to review a determination of the board of appeals permitting the erection, partly in a business zone, and partly in a residence zone, of a proposed building of a business character. The power to fix the zones, and create the several use districts, resides wholly in the board of estimate and apportionment, except in so far as that body may, under the statute (Laws of 1917, chap. 601, amending § 242-a of chap. 503, Laws of 1916) have delegated to the board of appeals the right to vary the application of the use district regulations adopted by the board of estimate and apportionment. The board of estimate and apportionment placed the property on the easterly side of Madison avenue, between Thirty-fifth and Thirty-sixth streets, in a district restricted to residence use. It placed in the same use district the property on the westerly side of Madison avenue, between Thirty-fifth and Thirty-sixth streets, and running westwardly to a point 100 feet west of the westerly line of Madison avenue. It placed in a business use district the property adjoining, on the west, the last-mentioned property and running westwardly to a point beyond the westerly line of the property owned by Astor. Astor's plot is bounded on the east by the westerly line of Madison avenue, on the south by Thirty-fifth street, on the north by Thirty-sixth street, and on the west by lines parallel with Madison avenue and 245 feet (at Thirty-fifth street) and 220 feet (at Thirty-sixth street) westerly from the westerly line of Madison avenue. He applied to the superintendent of buildings for permission to erect a business building covering that entire plot so owned by him. Upon denial, he appealed to the board of appeals, and that board made an order granting him the right he sought, its resolution containing certain restrictions as to height, shape and architectural features of the proposed building. The sole question before me is whether the board of appeals, in allowing that invasion of a residence district by a business use, exceeded the powers delegated to it by the board of estimate and apportionment. If it did exceed its powers, its order is not sustainable. If it acted within its powers, its action cannot be questioned. It is wholly a question of jurisdiction. The original source of the variance powers possessed by the board of appeals is the statute of 1917, referred to. That statute provided that the "regulations of the board of estimate and apportionment may provide that the board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained." Acting thereunder, the board of estimate and apportionment, in 1917, by an amendment to its zoning resolution of 1916, provided that the board of appeals "may, in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent, as follows;" and then follow eight lettered clauses or subdivisions, the only one of which that is in point here being subdivision "c." That provision, concededly controlling the decision here, reads in full: "Permit the extension of an existing or proposed building into a more restricted district under such conditions as will safeguard the character of the more restricted district." The relators are the owners of the residence properties situate on the east side of Madison avenue, opposite the Madison avenue side of the proposed business building in question, and numerous other owners of residence properties in the same residence use district. It is their contention that what the board of appeals has construed as a variance is, in fact, an amendment or substitution; and their argument seems to me to be unanswerable. For reasons that may have been good or bad, but, in any case, with which a court may not concern itself, the board of estimate and apportionment placed the Madison avenue front at the point in question in a residence zone. Concededly, of course, as between a residence zone, and a zone of the least objectionable business use, the former is the "more restricted." The plain intent and purpose both of the legislature and the board of estimate and apportionment, seems to me to have been merely to permit of the amelioration of the rigors of necessarily general zoning regulations by eliminating the necessity for a slavish adherence to the precise letter of a regulation where, in a given case, little or no good on the one side, and undue hardship on the other, would result from a literal enforcement. It would be difficult, as well as unprofitable, to lay down any precise limits to the powers conferred under subdivision "c." But it is quite safe to say that no zoning regulation adopted by the board of estimate and apportionment may in effect be repealed or set at naught by the board of appeals by action taken in the guise of a variance. Was this, then, a variance? We are dealing with a subject that requires no special knowledge. Every one must know that the residential character of the properties on the east side of Madison avenue cannot but be appreciably lessened in desirability for residential purposes by the construction of a business building opposite them, on the west side. And so, too, though in lesser degree, must all the residential properties in that residential use district be unfavorably affected by the conversion of the west side of Madison avenue from a residence to a business district. Indeed, it appears to me to be so plain that the so-called variance is not a variance at all, but an amendment that only the board of estimate and apportionment itself has the power to make, as to make it unnecessary to state reasons that must suggest themselves to any one who gives the matter the slightest thought. I shall not refer in detail to the restricting conditions imposed by the board of appeals in respect of the size and other features of the proposed building; but shall let it suffice to say that in my opinion those restrictions, and probably any conceivable restrictions as to a building devoted to a mercantile business use, are wholly inadequate to preserve and safeguard the character of the residence use district as it was created by the board of estimate and apportionment. I hold that the change permitted by the board of appeals is fundamental in character, that it goes beyond the limit of that board's power, and that the board was, therefore, without jurisdiction.
The writ is sustained.
Writ sustained.