Scarpati v. Feriola

Beldock, J. The facts are undisputed. On July 6, 1953 the owners of a parcel of land on the southeast corner of Bronxville and Tuckahoe Boads in Yonkers filed plans for the erection of a 72-family, 6-story apartment building. The zoning ordinance then in effect placed this property in an “ A-2 ’ ’ district, wherein high density apartment houses were a permitted use. On September 14, 1953 a new zoning ordinance (The City of Yonkers, N. Y., Zoning Ordinance of 1953) was enacted, effective November 15, 1953, changing the district in which the property is located to ‘ ‘ MG ’ ’, wherein the proposed use is not permissible. However, section 9-A of the new ordinance (as amd. March 23, 1954 and May 11, 1954) provides, among other things, that nothing contained in the ordinance should require any change in the plans, construction, or designated use of a building for which completed plans had theretofore been filed, if (a) construction was commenced within 210 days of the date of the permit, (b) the ground-story framework, including the second tier of beams, was completed within one year of the date of the permit, and (c) the entire building was completed within two years from the date of the permit. On November 30,1953 a permit for the erection of the building was issued by the Superintendent of Buildings of the City of Yonkers (hereinafter referred to as the “ Superintendent ”). In April, 1954 construction was begun. On May 24, 1954 amended plans were filed calling for a reduction of the number of apartments from 72 to 62. On June 7, 1954 four of the present petitioners and others (owners of nearby property) instituted an action against the City of Yonkers and others to restrain construction on the grounds that (1) construction contravened the applicable provisions of the 1953 zoning ordinance, (2) the 1954 amendments extending the time for commencement of construction were unconstitutional. On April 25, 1955 judgment was granted enjoining further construction of the building. On October 31, 1955 this court reversed the judgment and dismissed the complaint. On May 24, 1956 the Court of Appeals affirmed the judgment entered on the order of this court. (Seltzer v. City of Yonkers, 286 App. Div. 557, affd. 1 N Y 2d 782.) On June 14, 1957 the judgment of the Court of Appeals was entered. [114] On September 12, 1957 the time to make application to the United States Supreme Court for a review expired. Thus there was a final judicial determination that the building permit of November 30, 1953 was legally issued and that construction thereunder was commenced within the time limited by the zoning ordinance. On October 17, 1957 the Superintendent indorsed on the original permit a renewal thereof. On January 31, 1958 petitioners appealed to the Zoning Board of Appeals of the City of Yonkers (hereinafter referred to as the “ Board ”) from the “ decision ” of the Superintendent renewing the permit on the grounds that (a) there was no statute or ordinance which authorized him to grant a renewal, (b) the original permit had expired because the owners had not completed the ground-story framework and the second tier of beams within one year of the date of the permit and had not completed the entire building within two years from the date of the permit, and (c) the owners had no excuse for noncompliance with the time limitations contained in the zoning ordinance. On March 4, 1958 the Board held that the action of the Superintendent was proper because he has the right to renew permits where construction is commenced within one year after issue of the permit. The Board further held that, pursuant to the authority vested in it by subdivision 4 of section 81 of the General City Law, it had the power in passing on appeals to extend the time limitations contained in the zoning ordinance and, since the delay in construction was occasioned solely by the prior litigation instituted by four of the present petitioners, there were present such practical difficulties and unnecessary hardship in the way of carrying out the strict letter of the ordinance as to warrant an extension of time for the construction. On March 21, 1958 petitioners commenced this proceeding to annul the determination of the Board approving the renewal of the building permit, and to declare that all rights to build the apartment house had expired. On June 9, 1958 the proceeding was transferred for disposition to this court, where it was argued on December 1, 1958. By that time the building had been completed, and a certificate of occupancy had been issued. The premises are now completely occupied. In our opinion, the proceeding should be dismissed. Subdivision 4 of section 4 of the Building Code of the City of Yonkers (General Ordinance No. 9-1926, as amd.) provides that a building permit expires by limitation if no work is commenced thereunder within one year from the time of issuance. [115] Here, construction was commenced in April, 1954, which was within one year from the time of issuance of the permit on November 30, 1953., Therefore, the permit did not- expire by reason of the limitation contained in the building code and there was no necessity for its renewal. Therefore, if we assume, as petitioners argue, that there was no necessity for renewal and no statutory authority giving the Superintendent power to grant the renewal, that his action was unauthorized, superfluous, and without legal significance^ it follows that petitioners/ appeal to the Board falls because there was nothing from which they could appeal, and this proceeding must be dismissed. If we assume, however, as the minority concedes, that the renewal of the permit was in accordance with customary procedure and amounted to no more than a determination that the original permit had not expired by reason of the time limitation contained in the building code- because construction had commenced within one year after its. issuance, then this proceeding must, nevertheless, be dismissed because, as stated, the minority concedes that the renewal on that ground was proper. If the minority is correct in its opinion that the original permit had expired by reason of the limitations contained in section 9-A of the 1953 zoning ordinance and that there is no power to vary those time limitations, then this proceeding must he dismissed because the question whether the permit already issued had so expired may not be determined by the Superintendent, nor by the Board, nor by this court in an article 78 proceeding. However, it is our opinion that this proceeding should be dismissed because the Board had the power to vary the provisions of the zoning ordinance by granting an extension, of time within which to complete the construction and that its power was properly exercised under the circumstances here disclosed. Subdivision 4 of section 81 of the General City Law grants a board of appeals power, in passing on appeals, to vary or modify the application of any of the regulations or provisions of a zoning ordinance relating to the construction of buildings, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of any such ordinance. The time limitations contained in section 9-A of General Ordinance No. 24-1953 are part of the zoning ordinance, the provisions of which the Board is given power to vary or modify, not only by the State statute mentioned, but also by section 10-P-10 of the very ordinance in question. It is not necessary, as the minority contends, that power be granted by the zoning ordinance specifically to vary or modify the time provisions of [116] section 9-A because the power to vary or modify any of the provisions of the zoning ordinance is specifically granted by the cited sections of the statute and the ordinance. The jurisdiction of the local legislative body is not infringed by the Board in granting this extension of time where special circumstances exist because section 10-D-10 of the ordinance expressly provides that “no provision” [emphasis supplied] of section 10 shall be construed to abridge or curtail the powers vested in the Board under the cited State statute. The power of the Board to vary or modify the application of any of the regulations or provisions with respect to construction includes the power to vary provisions relating not only to the manner of construction, but also to the time of construction. That the owners demonstrated practical difficulties and unnecessary hardship in the way of carrying out the time conditions imposed by section 9-A of the ordinance is clear from the record and is conceded by the minority. The time limitations imposed by that section of the ordinance were not complied with solely because of the prior litigation instituted by four of the present petitioners and by petitioners ’ appeal to the Board now under review. Insofar as Matter of Glass v. Zoning Bd. of Appeals of City of Yonkers (5 A D 2d 991) held that there was no power to extend the time limits contained in section 9-A of the zoning ordinance, it was unnecessary to the determination. In any event, insofar as it did so hold, it is overruled. The cases cited by the minority with respect to the proof required before a, board of appeals may grant a variance are not applicable. The cases apply only where a use variance is involved. It has been held that these requirements do not apply to an area variance. (Matter of Village of Bronxville v. Francis, 1 A D 2d 236, affd. 1 N Y 2d 839.) We now hold that these requirements do not apply to a time variance. Any result other than the one recommended would be harsh, inequitable and unjust. Petitioners did not obtain a stay during the nine months from the institution of this proceeding to the time of the argument in this court. During that period construction (on which only $425.10 had been spent at the time of the hearing before the Board) was processed to completion at a cost of approximately $750,000. A lending institution has given a mortgage for over $700,000, which the Federal Housing Administration has insured. All of the 61 apartments available for sale in this co-operative apartment house have been sold. Approximately 62% of the members of the co-operative are veterans. The premises are now completely occupied. [117] The proceeding should be dismissed, with $50 costs and disbursements.