Opinion
1068, 100198/14.
05-05-2016
In re The 111 CONDOMINIUM, et al., Petitioners–Appellants, v. BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, et al., Respondents–Respondents.
Nixon Peabody LLP, New York (James Michael Smith of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Jonathan Popolow of counsel), for Board of Standards and Appeals of the City of New York, respondent. Greenberg Traurig, LLP, New York (Deirdre A. Carson of counsel), for Dalton Schools, Inc., respondent.
Nixon Peabody LLP, New York (James Michael Smith of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Jonathan Popolow of counsel), for Board of Standards and Appeals of the City of New York, respondent.
Greenberg Traurig, LLP, New York (Deirdre A. Carson of counsel), for Dalton Schools, Inc., respondent.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered May 1, 2015, denying the petition to annul a determination of respondent Board of Standards and Appeals of the City of New York (Board), dated January 14, 2014, which, as subsequently amended on February 5, 2014, granted, upon certain conditions, respondent Dalton Schools, Inc.'s application to amend a previously approved variance and special permit, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The Board's grant of a variance allowing Dalton to build an addition to its building does not constitute an ultra vires rezoning, since the variance would not change the essential character of the neighborhood (cf. Matter of Held v. Giuliano, 46 A.D.2d 558, 559–560, 364 N.Y.S.2d 50 [3d Dept.1975] [zoning board exceeded its authority in granting a variance permitting residential construction of lots with a greater density than allowed under a zoning ordinance]; Van Deusen v. Jackson, 35 A.D.2d 58, 312 N.Y.S.2d 853 [2d Dept.1970] [zoning board exceeded its powers when granting a variance permitting an individual to develop his land as a subdivision at odds with a zoning ordinance], affd. 28 N.Y.2d 608, 319 N.Y.S.2d 855, 268 N.E.2d 650 [1971] ). Both the Board and Supreme Court correctly applied the standard set forth in Cornell Univ. v. Bagnardi, 68 N.Y.2d 583, 510 N.Y.S.2d 861, 503 N.E.2d 509 (1986). The Board providently exercised its discretion in granting the variance and special permit, and its determination has a rational basis in the record and was not arbitrary and capricious (Matter of SoHo Alliance v. New York City Bd. of Stds. & Appeals, 95 N.Y.2d 437, 440, 718 N.Y.S.2d 261, 741 N.E.2d 106 [2000] ). We have considered petitioner's remaining contentions and find them unavailing.
SWEENY, J.P., ACOSTA, MANZANET–DANIELS, GISCHE, GESMER, JJ., concur.