Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: v. 101, no. 23 [2621]: [Articles]: June 8, 1918

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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