rr^    REAL    E S TAT E





BUILDERS





AND







Vol. CI





NEW YORK, JUNE 8, 1918





No. 23





Board of Appeals Has Power to Act in Zone Cases

Corporation  Counsel  Burr of  Opinion   Board   of   Estimate   Has

Delegated This Duty to It.





AN opinion rendered yesterday by Corporation
Counsel William P. Burr may materially affect
any action taken in the matter of the writ of
certiorari directed to the Board of Appeals on the appli¬
cation of William Waldorf Astor for permission to erect
a seven-story business building on his property, Madi¬
son avenue, 34th and 35th streets, which is returnable
next Wednesday in Part 2 Supreme Court. Cadwalader,
Wickersham & Taft, representing Baron Astor, have
asked permission from Justice Piatzek to intervene in
the case when it comes up for argument.

The opinion just rendered by the Corporation Counsel
is rendered at the request of the City Plan Committee
at the time of handing down its decision reversing the
action of the Board of Appeals. The writ was asked
for in view of the decision of City Plan Committee by
Carter, Ledyard and Milburn, representing J, P. Mor¬
gan and the residents of Murray Hill, and the applica¬
tion was based on the assumption of the Board of
Estimate that the Board of Appeals has no authority in
such matters and that the Board of Estimate is para¬
mount to the Board of Appeals in such cases.

The Corporation Counsel yesterday rendered his
opinion to the Board of Estimate and is as follows:

June 7, 1918.
BOARD  OF ESTIMATE AND  APPORTIONMENT
OF THE CITY OF NEW YORK:
I have received a communication from the Secretary
of your Board, under date of May 3, 1918, a copy of
which follows:

"At the meeting of the Board of Estimate and
Apportionment on May 3, 1918, a resolution was
adopted denying the petition of William Waldorf
Astor, through his attorney, for an amendment of
the building zone resolution, so as to change from
a residence to a business district the property on the
west side of Madison avenue between East 35th and
East 36th streets. Borough of Manhattan. A similar
petition by the same parties had previously been
denied by the Board on May 4, 1917.

"On April 30, 1918, while the renewed application
was pending before the Board of Estimate and Ap¬
portionment, the Board of Appeals adopted a reso¬
lution, a copy of which is enclosed herewith, permit¬
ting the construction of a business building in this
block, thus nullifying the action taken by this Board
on May 4, 1917, and rendering the subsequent similar
action of the Board of May 3, 1918, of no force or
effect.

"At the meeting of the Board of Estimate and
Apportionment on May 3, 1918, the Secretary was
directed to request the Corporation Counsel to advise
as to the validity of the action of the Board of
Appeals, in view of the pendency before the Board
of Estimate and Apportionment of the aforesaid ap¬





plication for an amendment of the Building Zone
Resolution, and the fact that this Board had, on May
4, 1917, denied a similar application presented to it
by the same parties."

The Building Zone Resolution was adopted by your
Board under the authority conferred by Sections 242-a
and 242-b of the Charter. The latter section contains
the provisions pertinent to the question submitted and
under those provisions your Board

"may regulate and restrict the location of trades
and industries and the location of buildings designed
for specified uses, and may divide the city into dis¬
tricts of such number, shape and area as it may deem
best to carry out the purposes of this section. For
each such district regulations may be imposed desig¬
nating the trades and industries that shall be excluded
or subjected to special regulations and designating
the uses for which buildings may not be erected or
altered."
This action further empowers your Board to

"supplement   or   change   said   regulations   or  dis¬
tricts,"
but,   as   a   whole,   it   contemplates   the   establishment   of
fixed zones and regulations applicable to each unit of
territory so established.

The same section of the Charter, by amendment in¬
troduced by Chapter 601 of the Laws of 1917, expressly
authorizes your Board to delegate to the Board of
Appeals the power to "determine and vary" the appli¬
cation of the regulations of the Building Zone Resolu¬
tion "in harmony with their general purpose and intent
and in accordance with general or specific rules therein
contained."

The Building Zone Resolution, in Section 20 thereof,
provides that

"Where there are practical difficulties or unneces¬
sary hardships in the way of carrying out the strict
letter of the provisions of this resolution the Board
of Appeals shall have power in a specific case to vary
any such provision in harmony with its general pur¬
poses and intent, so that the public health, safety and
general welfare may be secured and substantial
justice done."

And Section 7, subdivision c, provides that the Board
of Appeals may

"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:

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."

I have examined the proceedings heretofore had be¬
fore your Board upon the petition of William Waldorf
Astor, for an amendment of the Use-District Map so as