Highpoint Enterprises, Inc. v. Board of Estimate

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Estimate of the City of New York which set aside a determination of the Board of Standards and Appeals granting petitioner a permit to erect a microwave tower, the petitioner appeals from a judgment of the Supreme Court, Richmond County, entered June 27, 1978, which, inter alia, dismissed the petition. Judgment reversed, on the law, without costs or disbursements, petition granted, the determination of the Board of Estimate of the City of New York is annulled and the determination of the Board of Standards and Appeals is reinstated. This proceeding involves an application by petitioner, Highpoint Enterprises, Inc., for a special permit to allow the construction of a 180-foot radio tower on its property in a residential area of Todt Hill, Richmond County. The proposed radio tower would serve as an integral link in the congressionally authorized Vehicle Traffic System (VTS) of controlling ship movement in the general New York harbor area. The United States Coast Guard has primary responsibility for the design and implementation of the vehicle traffic control system. The Coast Guard contracted with the Motorola Corporation, which, in turn, contracted with the petitioner to construct the proposed tower on the latter’s property. The tower would replace an existing radio tower about 87 feet high which was constructed on the petitioner’s property pursuant to a special permit granted in 1967. In accordance with the general design requirements of the New York VTS, the proposed tower will broadcast VHF-FM and microwave radio transmissions. After an extensive review of the application, including public hearings and an inspection of the site, the New York City Board of Standards and Appeals found that: the site was presently developed with an accessory radio tower; the proposed tower would be an integral part of the sea traffic safety in New York harbor; the proposed tower complies with the most stringent international standards on microwave transmissions; installation would have no detrimental effect on the privacy, quiet, light and air in the surrounding area; and the advantages to be derived by the community and city outweigh the disadvantages of the proposed tower. Therefore, the application for the special permit was granted in accordance with section 73-30 of the New York City Zoning Resolution. Subsequently, the Board of Estimate of the City of New York accepted jurisdiction to review the above decision. Upon such review, the Board of Estimate disapproved the decision of the Board of Standards and Appeals. In doing so, the Board of Estimate found, inter alia, that the proposed tower represented a potential health hazard resulting from microwave transmissions and that there would be detrimental effects on the privacy, quiet and desirability of the immediate area. The petitioner commenced this article 78 proceeding to review the determination of the Board of Estimate. Assuming, without so finding, that the Board of Estimate was empowered by section 668 of the New York City Charter to review the actions of the Board of Standards and 915 Appeals relating to the issuance of a special permit, that scope of review is no greater than that provided for with respect to variances. Although the Board of Estimate may be a legislative body, the review of an application for a special permit is an administrative function (see Mobil Oil Corp. v City of Syracuse, 52 AD2d 731). As such, the Board of Estimate is limited to the traditional standard of substantial evidence in reviewing the grant or denial of a special permit. Reliance upon the maxim expressio unius est exclusio alterius to support the inference that subdivision c of section 668 of the New York City Charter grants a broader scope of review for the issuance of special permits than for the issuance of variances leads to an absurd result which is contrary to common law and common sense. In construing statutes, courts have an affirmative obligation to avoid such objectionable consequences (McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 141, 145). In general, a special permit pertains to a use which is authorized as long as certain conditions are satisfied. However, a variance represents a departure from the uses which are authorized by the zoning resolution. Whereas the issuance of a special permit "is a duty, imposed upon the zoning board once it is shown that the proposed use meets the standards prescribed by the ordinance”, a variance will only be issued "upon unique circumstances and a showing of hardship” (Matter of Knight v Bodkin, 41 AD2d 413, 417). The Court of Appeals has distinguished special permits from variances as follows (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243-244): "The denial of the special exception permit, based on factual findings used to support denial of the variance, ignores the fundamental difference between a variance and a special exception permit. A variance is an authority to a property owner to use property in a manner forbidden by the ordinance while a special exception allows the property owner to put his property to a use expressly permitted by the ordinance. The inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood (2 Rathkopf, Law of Zoning and Planning, Ch 54, pp. 54-3 — 54-4; Matter of Reed v. Board of Stds. & Appeals, 255 N. Y. 126; Matter of Syosset Holding Corp. v. Schlimm, 4 A D 2d 766; Matter of Bar Harbour Shopping Center v. Andrews, 23 Mise 2d 894). Denial of the permit on the ground that the extension of the parking lot 25 feet into the residential zone is 'not * * * in harmony with the general purpose and intent of the zoning plan’ is, thus, patently inconsistent. (See, generally, 3 Anderson, American Law of Zoning, § 15.13.) The burden of proof on an applicant for a special exception permit is much lighter than that required for a hardship variance (Vernona v. West Cladwell, 49 N. J. 274; Anderson, op. cit, supra, § 15.21).” A consequence of the dichotomy between variances and special permits is that there is generally a much greater and more stringent scope of review for variances (see Matter of Reed v Board of Stds. & Appeals, 255 NY 126). An applicant for a special use permit has a lighter burden than does an applicant for a variance and must only show compliance with the conditions imposed to minimize the anticipated impact of a legislatively authorized use on the surrounding area, whereas an applicant for a variance must justify a departure from the zoning resolution (see Mobil Oil Corp. v City of Syracuse, supra). Thus, it would be illogical to have a broader scope of review for the issuance of special permits. Nor is this result contrary to the charter. Subdivision c of section 668 of the charter does not provide that the standard of review for variances shall be substantial evidence. Rather, the applicable language is: "In the case of an application to determine and vary 916 the zoning resolution, review by the board of estimate shall be limited to an administrative determination as to whether the decision of the board of standards and appeals under each of the specific requirements of the zoning resolution was supported by substantial evidence before the board of standards and appeals.” (Emphasis supplied.) Similarly, subdivision 6 of section 666 of the charter, in enunciating the jurisdiction of the Board of Standards and Appeals, includes the following: "To determine and vary the application of the zoning resolution as may be provided in such resolution and pursuant to section six hundred sixty-eight” (emphasis supplied). It is apparent that the phrase "determine and vary” is not limited to the grant of variances, but is a general reference to all applications of the zoning resolution, including special permits. This conclusion is supported by the balance of the language of section 668; that section is entitled "Variances and special permits” and the term variances is expressly used in other portions of the charter section. The use of the broader terminology "to determine and vary” necessarily refers to variances and special permits, as is similarly intended in the grant of jurisdiction to the Board of Standards and Appeals (New York City Charter, § 666, subd 6). Further support for the conclusion that the Board of Estimate is limited to a substantial evidence standard of review is found in the New York City Zoning Resolution. Article 7 of the resolution divides special permits into two categories. Chapter 3 refers to special permits which are granted by the Board of Standards and Appeals. Chapter 4 refers to special permits which are granted by the City Planning Commission with the express approval of the Board of Estimate. No mention of the Board of Estimate appears in chapter 3 and it is apparent that the power to issue those special permits authorized in chapter 3 has been delegated solely to the Board of Standards and Appeals. It is the special permits authorized in chapter 3 of the zoning resolution which are referred to in subdivision 6 of section 666 of the charter, which grants jurisdiction over applications to "determine and vary the application of the zoning resolution as may be provided in such resolution”. The Board of Estimate plays a larger role only on those special permits which are granted in accordance with chapter 4 of the zoning resolution. The instant application was properly made under chapter 3 of the New York City Zoning Resolution. Thus, the scope of review employed by the Board of Estimate is limited to whether the determination by the Board of Standards and Appeals was supported by substantial evidence. Based upon that scope of review, we hold that there was substantial evidence to support the action of the Board of Standards and Appeals in granting the special permit and, accordingly, the determination of the Board of Estimate must be annulled and set aside. Contrary to the decision of the Board of Estimate, the evidence is unequivocal that the level of microwave transmissions which will be broadcast by the proposed tower presents absolutely no danger to the public’s health and safety. The record also contains substantial evidence that in view of the existing tower, the new tower will have no significant detrimental effect, economically or aesthetically, on the surrounding community. Nor can the Board of Estimate’s conclusion that there are preferable alternative sites and alternative methods of trafile control be sustained. The record before the Board of Estimate contained no significant evidence that was not before the Board of Standards and Appeals. The record before the Board of Standards and Appeals reveals that alternative sites were considered and rejected for valid reasons. The record before the Board of Standards and Appeals conclusively shows that the advantages of locating the proposed microwave tower at the Todt Hill site far outweigh the disadvantages to the 917 community. The record also establishes that there will be no significant detrimental impact on the privacy and quiet of the neighborhood as a result of the new tower. In view of the vital importance of the speedy implementation of the proposed VTS for the New York harbor, and the persuasive record in support of the Board of Standards and Appeals’ determination to grant the special permit to construct the proposed tower at the Todt Hill site, it was improper for the Board of Estimate to ignore the substantial evidence in support of the application and disapprove the special permit. Damiani, J. P., Suozzi and Rabin, JJ., concur.