Faymor Development Co. v. Board of Standards & Appeals

OPINION OF THE COURT

Petitioner Faymor Development Co. commenced this article 78 proceeding to annul a determination of the New York City Board of Standards and Appeals which denied petitioner’s application to reinstate a building permit automatically revoked when the property was rezoned. Petitioner claimed that it was prevented from completing construction on its foundations and acquiring vested rights under the permit because of illegal interference by protesting area residents supported by delaying tactics and acquiescence on the part of municipal officers ultimately culminating in the zoning change. The

Petitioner is the owner of an undeveloped parcel of land located at Far Rockaway in Queens County. In January, 1972 it applied for a building permit to erect a six-story multiple dwelling with cellar. This was a permitted use under the R3-2 zoning then applicable to the property. On December 19, 1972 the permit was granted. It was renewed on November 1, 1973.

In the summer of 1974 petitioner was prepared to begin construction of the foundation. On June 3, however, the building department revoked the permit when a community planning board raised various "objections and questions”, noting in particular that the building was to be erected over a mapped but undeveloped street in purported violation of section 36 of the General City Law. Petitioner appealed and on July 23 the board reinstated the permit.

Community groups then brought an article 78 proceeding against the board to annul this determination. Hundreds of area residents also proceeded to the work site, surrounded it with parked cars and refused to allow petitioner’s construction crews and equipment to enter on August 16. This continued until August 19 when the area residents brought an action to enjoin petitioner from proceeding with construction and immediately obtained an ex parte stay. This stay and a subsequently granted temporary injunction remained in effect until Friday, September 27, at which time it lapsed due to the failure of the plaintiffs to post a $75,000 bond.

On Monday, September 30, petitioner’s work crews returned to the site and proceeded with the construction without incident. The following day, however, they once again found their way blocked by area residents and parked vehicles completely surrounding the work site. Petitioner’s efforts to enter its property and resume construction on this and subsequent days were unsuccessful. The petitioner twice obtained court orders directing the protesters to cease interfering with construction. The protesters refused to comply. On October 3 petitioner hand delivered a written request to the police department for assistance in gaining access to its property. Petitioner sent similar requests to the traffic department and the fire department to have the vehicles removed. Despite these requests the

As noted, on this appeal the city relies on the principle that "A public body cannot be commanded in an article 78 proceeding to perform an act not authorized by the statute from which it derived its power” (Matter of Wong v Finkelstein, 299 NY 205 , 207). The city argues that once the property was rezoned, the board, according to the terms of the zoning resolution was only permitted to reinstate the permit if the foundations had been completed and, thus, the Appellate Division should not have directed the board to grant the relief on the other grounds asserted by the petitioner.

A court, however, may estop the city from asserting the landowner’s failure to complete the foundations if, for instance, the city has interrupted construction by illegally suspending the permit (Matter of Temkin v Karagheuzoff, 34 NY2d 324 , supra; Matter of Bayswater v Karagheuzoff, 37 NY2d 408 , supra). Similarly a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on an application for a permit or license until after the law had been amended to authorize denial of the application (Matter of Pokoik v Silsdorf, 40 NY2d 769 ; Matter of Our Lady of Good Counsel v Ball, 38 NY2d 780 , affg 45 AD2d 66 ). In none of these cases has it been suggested that the board was expressly authorized by statute to issue or reinstate the permit whenever there had been illegal or negligent interference with the petitioner’s right to acquire vested rights. Nor should it be assumed that a court’s equitable power to order the board to grant the relief depended or should depend upon the existence of such statutory authority. A party may be ordered to do equity. When a court is called upon to exercise equitable powers it is not precluded from doing so because the agency involved may not possess similar powers.

The city claims that the case now before us is distinguish

There is, of course, no suggestion that the petitioner was at fault. The city had approved and authorized the construction of the building; it was a lawful use under the law then in effect and, in reliance on the permit, petitioner had apparently incurred considerable financial expense and obligations. It was prepared to begin construction and it had the right to "vest” its interest by constructing the foundations (Matter of Temkin v Karagheuzoff, 34 NY2d 324 , 328, supra; Matter of Pokoik v Silsdorf, 40 NY2d 769 , supra).

Nevertheless petitioner’s efforts to proceed with construction were delayed, obstructed and ultimately frustrated because of violent opposition from area residents. They commenced dubious, if not frivolous lawsuits and obtained a stay on the condition that they post a bond to cover petitioner’s losses. The bond was never posted. They took to the streets and physically excluded petitioner from its property in disregard of law and court orders to cease interference.

But the city played a part as well. Throughout the period city officials displayed a willingness to appease the protesters at petitioner’s expense. At the outset the building department revoked the permit on technical grounds. The defect, if there was one, had been evident on the face of the plans for over a year and a half and was only acted upon when community opposition to the project was heard (see, e.g., Matter of Bayswater v Karagheuzoff, 37 NY2d 408 , 415-416, supra). Finally, to satisfy the protesters the board of estimate terminated the permit and the petitioner’s rights by zoning out the project. In the interim city police officials stood by while a lawless mob prevented petitioner from vesting its rights under the existing law. A municipality of course can rarely be held liable in damages for failure to provide adequate services (Riss v City of New York, 22 NY2d 579 ; see, also, Schuster v City of New York, 5 NY2d 75 ). It may, however, be estopped from claiming the benefits of its own inaction, whether intentional or merely negligent (Matter of Pokoik v Silsdorf, supra; Matter of Our Lady of Good Counsel v Ball, supra).

In sum, as a result of the combined action by area

Accordingly the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

Order affirmed, with costs.