Hyperlawhypertext legal databasebeta Parkview Associates v. City of New York 71 N.Y.2d 274

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Parkview Associates v. City of New York

71 N.Y.2d 274 Court N.Y. Decision date 1988-02-09 English

Delivered by Bellacosa, J.

Contents

Majority

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In the Matter of Parkview Associates, Appellant, v City of New York et al., Respondents, and Civitas Citizens, Inc., Intervenor-Respondent.
Argued January 11, 1988;
decided February 9, 1988
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POINTS OF COUNSEL
Jeffrey L. Braun, Hector Torres and Audry Weintrob for appellant.
I. Parkview’s permit was issued in conformance with a reasonable interpretation of the zoning ordinance. (Soron Realty Co. v Town of Geddes, 23 AD2d 165 ; Keeney v Village of LeRoy, 22 AD2d 159 ; Matter of Allen v Adamik, 39 NY2d 275 ; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408 ; FGL & L Prop. Corp. v City of
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Rye, 66 NY2d 111 ; Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298 .) II. Principles of equitable estoppel apply here and preclude the revocation of Parkview’s permit even if the permit’s issuance was erroneous. (Metropolitan Life Ins. Co. v Childs Co., 230 NY 285 ; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443 ; Shapley v Abbott, 42 NY 443 ; Bender v New York City Health & Hosps. Corp., 38 NY2d 662 ; Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560 ; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408 ; Matter of Temkin v Karagheuzoff, 34 NY2d 324 ; Matter of Pokoik v Silsdorf, 40 NY2d 769 ; La Porto v Village of Philmont, 39 NY2d 7 .) III. Respondents’ actions have violated Parkview’s Federal and State constitutional rights, (de St. Aubin v Flacke, 68 NY2d 66 ; French Investing Co. v City of New York, 39 NY2d 587 , 429 US 990 ; Euclid v Ambler Co., 272 US 365 ; McMinn v Town of Oyster Bay, 66 NY2d 544 ; Nectow v Cambridge, 277 US 183 ; Usery v Turner Elkhorn Min. Co., 428 US 1 ; Chevron Oil Co. v Huson, 404 US 97 ; Welch v Henry, 305 US 134 ; Blodgett v Holden, 275 US 142 ; In re U. S. Fin., 594 F2d 1275 .)
Peter L. Zimroth, Corporation Counsel (Phyllis Arnold, Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondents.
I. The challenged determination by the Board of Standards and Appeals must be sustained because it has a rational basis in the record and in law. The partial revocation of the building permits was lawful because when the permits were issued the building failed to conform to applicable law. (Citizens for Preservation of Windsor Terrace v Smith, 122 AD2d 827 ; Shapiro v Town of Oyster Bay, 27 Misec 2d 844, 20 AD2d 850 ; La Porto v Village of Philmont, 39 NY2d 7 ; Matter of Schilling v Dunne, 119 AD2d 179 ; City of Utica v Paternoster, 64 Misc 2d 749 ; Miner v City of Yonkers, 19 Misc 2d 321 , 9 AD2d 907 , 10 AD2d 647 , 8 NY2d 705 ; People v Hartwell, 166 NY 361 ; American Bank & Trust Co. v Dallas County, 463 US 855 ; United States v Welden, 377 US 95 ; Stephan v United States, 319 US 423 .) II. Under New York law, municipal respondents cannot be equitably estopped from enforcing the zoning law, where, inter alia, the permits were invalid when issued. In any event, based upon the record, petitioner has failed to demonstrate its good faith, and has available remedies. (Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849 ; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30 ; Morley v Arricale, 66 NY2d 665 ; Collins
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v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361 ; Public Improvements v Board of Educ., 56 NY2d 850 ; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436 , 61 NY2d 759 ; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88 ; Matter of Roberts v Community School Bd., 66 NY2d 652 ; Parsa v State of New York, 64 NY2d 143 .) III. The petition fails to state a claim for an unconstitutional taking or deprivation of property without due process. (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 ; Williamson Planning Commn. v Hamilton Bank, 473 US 172 ; Incorporated Vil. of Upper Brookville v Faraco, 282 App Div 943 , 307 NY 642 ; Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264 ; Agins v Tiburon, 447 US 255 ; Willing v Chicago Auditorium, 277 US 274 ; Matter of St. Basil’s Church v Kerner, 125 Misc 526 ; French Investing Co. v City of New York, 39 NY2d 587 , 429 US 990 ; Modjeska Sign Studios v Berle, 43 NY2d 468 , 439 US 809 ; Andrus v Allard, 444 US 51 .)
Robert S. Davis and Karl S. Coplan for intervenor-respondent.
I. At the time of appellant’s application as well as at the time that appellant’s permit was revoked, the Park Improvement District boundary under the zoning resolution extended 150-feet east of Park Avenue at 96th Street. (People v Hartwell, 166 NY 361 ; Whelen v Warwick Val. Civic & Social Club, 89 Misc 2d 577 , 63 AD2d 646 , 47 NY2d 970 .) II. The erroneous issuance of a building permit to an applicant charged with knowledge of the requirements of the zoning resolution does not estop the City from enforcing the unambiguous enactments of the Board of Estimate. (Matter of Daleview Nursing Home v Axelrod, 52 NY2d 30 ; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88 ; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849 ; Board of Supervisors v Ellis, 59 NY 620 ; Albert Simon, Inc. v Meyerson, 36 NY2d 300 , 423 US 908 ; Morley v Arricale, 66 NY2d 665 ; City of Yonkers v Rentways, Inc., 304 NY 499 ; Matter of B & G Constr. Corp. v Board of Appeals, 309 NY 730 ; City of Buffalo v Roadway Tr. Co., 303 NY 453 ; Matter of Albert v Board of Stds. & Appeals, 89 AD2d 960 .) III. Enforcement against appellant of the duly enacted P.I.D. height limitations neither constitutes a deprivation of property without due process nor effects a taking of property which would require compensation. (Euclid v Ambler Co., 272 US 365 ; Scarsdale Supply Co. v Village of Scarsdale, 8 NY2d 325 ; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269 ; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324 ,
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438 US 104 ; Park Ave. Tower Assocs. v City of New York, 746 F2d 135 , cert denied sub nom. Eastco v City of New York, 470 US 1087 ; Matter of Crossroads Recreation v Broz, 4 NY2d 39 ; Welch v Swasey, 214 US 91 ; Bi-Metallic Co. v Colorado, 239 US 441 ; Rogin v Bensalem Twp., 616 F2d 680 , cert denied sub nom. Mark-Garner Assocs. v Bensalem Twp., 450 US 1029 .)
Jeremiah S. Gutman, Arthur C. Silverman and Leonard Benowich for the New York Society of Architects and another, amici curiae.
In determining the boundaries of a special district, a professional architect must be permitted to rely upon such boundaries as they appear and as they are drawn on the official zoning maps prepared, printed and published by the Department of City Planning, and that such architect need not be required to exhaustively research the legislative history of such boundaries which would, of necessity, require his retrieving, analyzing, and comparing the actual texts of many resolutions of the Board of Estimate, memoranda and diagrams prepared by the Department of City Planning, and official maps.
Martin Gallent and Marc Silver for Carnegie Hill Neighbors and others, amici curiae.
I. The zoning resolution as enacted by the Board of Estimate unambiguously places petitioner’s property within the Special Park Improvement District. II. The City of New York is not estopped from enforcing its laws where petitioner unreasonably relied on a building permit that was void ab initio. (Matter of Jayne Estates v Raynor, 22 NY2d 417 ; Matter of Natchev v Klein, 41 NY2d 833 ; Reichenbach v Windward, 80 Misc 2d 1031 , 48 AD2d 909 , 38 NY2d 912 ; Matter of Pokoik v Silsdorf, 40 NY2d 769 ; Landmark Colony v Board of Supervisors, 113 AD2d 741 ; Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560 ; Scruggs-Leftwich v Rivercross Tenants’ Corp., 119 AD2d 88 ; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408 ; Matter of 1555 Boston Rd. Corp. v Finance Adm’r, 61 AD2d 187 ; Ward v City of New Rochelle, 20 Misc 2d 122 , 9 AD2d 911 , 7 NY2d 711 .)

OPINION OF THE COURT

We hold in this case involving the height of a building on Park Avenue in Manhattan, already constructed in excess of the height limitations of applicable zoning provisions, that

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estoppel is not available to preclude a governmental entity from discharging its statutory duties or to compel ratification of prior erroneous implementation in the issuance of an invalid building permit. The rare exception to the unavailability of estoppel against governmental entities may not, in any event, be invoked in this case where reasonable diligence by a good-faith inquirer would have disclosed the true facts and the bureaucratic error. We may not address the additional claim that governmental correction of prior administrative action, erroneously overriding applicable zoning provisions, constitutes an unconstitutional taking inasmuch as there is a pending variance application. We thus affirm the Appellate Division’s order affirming the denial of relief to plaintiff.

Owner-builder Parkview’s property, purchased in 1982, is at the southeast corner of Park Avenue and 96th Street, located 90- to 190-feet east of Park Avenue. A portion of the property is within a Special Park Improvement District (P.I.D.) created by enactment of the Board of Estimate of the City of New York in 1973. The enabling and authorizing resolution limits the height of new buildings in that district to 19 stories or 210 feet, whichever is less. The P.I.D. boundary ran uniformly 150-feet east of Park Avenue until, by resolution of the Board of Estimate on March 3, 1983, the metes and bounds description of the P.I.D. was amended, providing in part for a reduction from 150 to 100 feet between East 88 Street to midway between 95th and 96th Streets. The boundary north of this midblock division, pursuant to the metes and bounds, remained at all times 150 feet. Plaintiff’s property was thus unaffected by this 1983 change and has always been governed by the 1973 original enactment.

Zoning Map 6b accompanying the March 1983 resolution depicted the amended boundary with a dotted line which fell within a shaded area constituting the existing P.I.D. A numerical designation of "150”, included on earlier versions of the map to show the setback, had been removed and a new designation of "100” was inserted adjacent to the dotted line. This left no numerical designation along the northern part of the boundary. The "150” designation signaling the retention of the boundary north of the 95th-96th Street midblock line was reinserted on a version of Map 6b published to reflect a subsequent resolution of September 19, 1985.

Parkview’s initial new building application, submitted on June 5, 1985, was rejected for failure to show compliance with

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the P.I.D. height limitation. Based upon its interpretation of the version of Zoning Map 6b existing in the summer of 1985, Parkview concluded that a 100-foot boundary controlled, and its revised building application, submitted on July 31, 1985, limited the height of the proposed new building to 19 stories between its property line and 100 feet from Park Avenue. The portion of the building setback more than 100 feet from Park Avenue was to rise 31 stories. The application was approved by the Department of Buildings as conforming with all zoning requirements on August 12, 1985 and, after rereview, a building permit was issued on November 21, 1985 by the Borough Superintendent. There is no dispute that at the time the permit was issued the Department erroneously interpreted amended Map 6b as changing the boundary on 96th Street to 100 feet. On July 11, 1986, however, after substantial construction, the Borough Superintendent of the Department of Buildings issued a stop work order for those portions of the building over 19 stories within the full 150 feet of Park Avenue. After review, the Commissioner of Buildings partially revoked the building permit, consistent with the stop work order, on the grounds that the permit, to the extent it authorized a height of 31 stories from 100-feet back instead of 150-feet back, was invalid when issued.

Parkview appealed the Commissioner’s decision to the Board of Standards and Appeals (BSA), which denied the appeal and sustained the determination of the Commissioner. In sum, the BSA found that the dotted lines on Zoning Map 6b within the shaded P.I.D., expressly connoting a reduction to 100 from 150 feet of the protected area, excluded the 96th Street frontage of plaintiff from any change; that the original resolution with its metes and bounds description, which was never changed in any event, controlled over the map depicting the boundaries even if the map could be misread; and that the boundary-height limitation applicable to Parkview under the metes and bounds description was and had always been 150-feet east of Park Avenue.

Parkview then turned to the courts, essentially in an article 78 proceeding, seeking to set aside the partial revocation of its building permit. It sought to reinstate the full permit, arguing that the final BSA determination was arbitrary and capricious or affected by error of law because the original permit was properly issued; that its rights pursuant to that permit had vested; that its reliance on the permit caused substantial and irreparable harm requiring that the City be estopped from

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revoking the permit; and that the partial revocation deprived Parkview of its property without due process or just compensation.

The IAS Judge dismissed the petition holding that the BSA’s determination was reasonable and supported by substantial evidence that the building permit was invalid when issued, vesting no rights, because the building plans did not comport with the metes and bounds description for the P.I.D. as contained in the controlling original legislative enactment of the Board of Estimate. The court also held that estoppel was unavailable as a matter of law. Finally, the constitutional taking argument was dismissed as premature because Park-view had failed to apply for a variance which is a prerequisite to that claim. The Appellate Division affirmed, and this appeal ensued by leave of this court.

Parkview argues that its original permit was issued in conformity with a reasonable interpretation of the zoning map, thus making it valid when issued; that the principles of equitable estoppel preclude the partial revocation of the building permit even if the permit was erroneously issued; and that the City’s partial revocation of its permit constitutes a taking in violation of due process of law and without just compensation. The City counters that the decision of the BSA has a rational basis because the permit was invalid when issued; that equitable estoppel is not available to estop a municipality from enforcing its zoning laws when the building permit issued by the municipality violated those zoning laws; and that the petition below failed to state a claim for an unconstitutional taking.

There can be little quarrel with the proposition that the New York City Department of Buildings has no discretion to issue a building permit which fails to conform with applicable provisions of law, and that the Commissioner may revoke a permit which "has been issued in error and conditions are such that a permit should not have been issued” (Administrative Code of City of New York §§ 27-191, 27-197). Since discrepancies between the map and enabling resolution are controlled by the specifics of the resolution (New York City Zoning Resolution §§ 11-22, 12-01), the original permit in this case was invalid inasmuch as it authorized construction within the 150-foot P.I.D. above 19 stories in violation of New York City Zoning Resolution § 92-06 (2 Journal of Proceedings of Board of Estimate of City of NY, at 1708 [Cal No. 6, Apr.

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23, 1973], as amended [Cal No. 8, Mar. 3, 1983]). Therefore, the subsequent BSA action in ratifying the decision of the Commissioner partially revoking Parkview’s permit had a sound legal basis. Indeed, there was no discretion reposed in these authorities to do otherwise at that point and on the record before them at that time.

Turning to the next stage of our analysis, we have only recently once again said that "[generally, estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties” (Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849 , citing Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30 , 33; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88 , 93; see also, Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359 [decided herewith]). Moreover, "[e]stoppel is not available against a local government unit for the purpose of ratifying an administrative error” (Morley v Arricale, 66 NY2d 665 , 667). In particular, "[a] municipality, it is settled, is not estopped from enforcing its zoning laws either by the issuance of a building permit or by laches” (City of Yonkers v Rentways, Inc., 304 NY 499 , 505) and "[t]he prior issue to petitioner of a building permit could not 'confer rights in contravention of the zoning laws’ ” (Matter of B & G Constr. Corp. v Board of Appeals, 309 NY 730 , 732, citing City of Buffalo v Roadway Tr. Co., 303 NY 453 , 463). Insofar as estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results (Parsa v State of New York, 64 NY2d 143 , 147; Matter of New York City v City Civ. Serv. Commn., 60 NY2d 436 , 448-449), the City should not be estopped here from revoking that portion of the building permit which violated the long-standing zoning limits imposed by the applicable P.I.D. resolution. Even if there was municipal error in one map and in the mistaken administrative issuance of the original permit, those factors would be completely outweighed in this case by the doctrine that reasonable diligence would have readily uncovered for a good-faith inquirer the existence of the unequivocal limitations of 150 feet in the original binding metes and bounds description of the enabling legislation, and that this boundary has never been changed by the Board of Estimate. The policy reasons which foreclose estoppel against a governmental entity in all but the rarest cases thus have irrefutable cogency in this case.

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Finally, Parkview’s claim that the City’s action constitutes a taking without due process of law or just compensation may not be addressed in this action and at this time because Parkview had failed to apply for a variance (see, Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 , 519; see also, Scarsdale Supply Co. v Village of Scarsdale, 8 NY2d 325 , 330; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269 , 273). The variance application now pending is, of course, not affected by our decision today.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.

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