Petition — Lawrence v. Klein

October Term, 1977

No. ͥ 77. 1315

1

84

James F. Lawrence, Rospert G. Knorr, Marraa MoLana-

HAN, ELIzABETR B. Parkinson and 215 Easr 72nd Street

CoRPORATION,

Petitioners,

vs.

JoserH B. Kier, as Chairman, PR P. Acusta, as Vice

Chairman, and Harry M. Carroii, Jonn J. WaLSR, JoHn

B. Crvycorra, as Members of the Board of Standards and

Appeals of the City of New York, Samus. LinpEensavum,

as Applicant, 72nd Srreer Associates and Davi Bera,

(( Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

Davi Srvn

Winer, Neuburger & Sive

Attorney for Petitioners

Office and P.O. Address

425 Park Avenue

New York, New York 10022

Tel. (212) 421-2150

Laurence May

Of Counsel

TABLE OF CONTENTS

PAGE

ö eee eee i

SD HE Shc eines 2

NAL Ee PLP CAO ITOEE,

r 2

Constitutional Provision and Statutes Involved 3

rie eee 6

Reasons for Granting the Writ .,,........... See

I. This case involves constitutional issues upon

which this Court has not yet passed I

II. The Board violated procedural due process 19

Conclusion ....... bp bb Ghd pend bodes gone sense) cone 24

neee, elt ee ee la

Re TE nen -ns0 0 dhegeesccéddacccemn ere 4a

ii TABLE OF CONTENTS

TaBLe or AUTHORITIES

PAGE

Cases Cited

Application of New York City Housing d Develop-

ment Authority v. Foley, 23 A.D.2d 84, 258 N.Y.S.

LILA 22

Armstrong v. Manzo, 380 U.S. 545 (1965) .......... 20

Arnett v. Kennedy, 416 U.S. 134 (1974) 11

Badamek v. Schroskey, 21 Mich. App. 582, 175 N.W.2d

784 (197oͥ⸗ũ n . 15

Baker v. Zoning Board of Review, 102 R. I. 134, 228

IXIL. 15

Bell v. Burson, 402 U.S. 535 (1971777 V. 12

Bishop v. Wood, 96 S. Ct. 2074 (1976) 12

Board of Curators v. Horowitz, 46 U.S. L. W. 4179

Rr A 06t600i 19, 20

Board of Regents v. Roth, 408 U.S. 564 (1972) 12

Bowman Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 US. 281 (1974) ...... 11

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) .. 19

Chicago v. Sachs, 1 III. 2d 342, 115 N.E.2d 762 (1953). 14

Chrobuck v. Snohomisa County, 78 Wash. 2d 858, 480

cf es 15

City of Eastlake v. Forest City Enterprises, Inc., 426

X.. 13

Clark Heating Oils, Inc. v. Zoning Board of Appeals,

159 Conn. 234, 268 A.2d 381 (1970) ............ 15

Collins v. Behan, 285 N.Y. 187, 33 N.E.2d 86 (1941) .. 15

Comnell v. Higgenbotham, 403 U.S. 207 (1971) ....... 12

Fuentes v. Shevin, 407 U.S. 67 (1973) .............. 12

TABLE OF CONTENTS . iii

PAGE

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ........... 11

Gibson v. Berryhill, 411 U.S. 564 (1973) ........... 12

Goldberg v. Kelly, 397 U.S. 254 (1970) .......... 11, 12,13

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) 13

Goneales v. United States, 348 U.S. 407 (1955) ...... 7

Gorieb v. Fox, 274 U.S. 603 (1927) ............... 12

Goss v. Lopez, 419 U.S. 565 (1975))ʒ/· cece eee 11, 20

Hecht v. Monaghan, 307 N.Y. 461, 121 N.E.2d 421

r ĩ i•d ed 22

Hills v. Gautreaux, 425 U.S. 284 (1976) ............ 13

Ingraham v. Wright, 97 S.Ct. 1401 (1977) 12

Jenkins v. McKeithen, 395 U.S. 411 (1969) ......... 12

Joint Anti-Fascist Refugee Committee v. McGrath,

COE GB. SEB TEED 6a dewccccvcddvitecccvceece 19

Lindburg v. Zoning Board of Appeals, 8 II. 2d 254,

LLL 15, 17

Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966) 8

Mathews v. Eldridge, 424 US. 319 (1976) ........ 12, 20, 23

Meachum v. Fano, 96 S.Ct. 2532 (1976) ............ 12

Montayne v. Hayes, 96 S.Ct. 2543 (1976) ......... 12

Montgomery County v. Woodward & Lothrop, Inc.,

280 Md. 686, 376 A.2d 483 (1977), cert. denied sub

nom., Funger v. Montgomery County, 46 US.

L.W. 3526 (February 21, 1978) ................ 15

Moore v. City of East Cleveland, 97 S. Ct. 1932 (1977) 13

Morrissey v. Brewer, 408 U.S. 471 (1972) ......... 12, 19

Nectrow v. City of Cambridge, 277 US. 183 (1928) 12

iv TABLE OF OONTENTS

PAGE

Ohio Bell Telephone Co. v. Public Utilities Commis-

sion, 301 U.S. 292 (1937) 5 18

Paul v. Davis, 96 S. Ct. 1155 (19760))ö! 12, 20

Perry v. Sindermamn, 408 U.S. 593 (1972) 12

Richardson v. Wright, 405 US. 208 (1972) .......... 12

Rowan v. United States Post Office Department, 397

%.... 12

Rubin v. Board of Directors, 16 Cal. 2d 119, 104 P. 2d

uU „„ „„ ee 14

Schaible v. Board of Adjustment, 134 N. J. L. 473,

se.. ...,. 14

Smith v. Organization of Foster Families for Equal-

ity and Reform, 97 S. Ct. 2094 (1977) ......... 12

South Gwinnet Venture v. Pruitt, 491 F.2d 5 (5th

Cir.), cert. denied, 419 U.S. 837 (1974), reversing

en banc, 482 F.2d 389 (5th Cir. 1973) .......... 14

State of Washington ex rel. Seattle Trust Co. v.

Roberge, 278 US. 116 (1928) ................. 13

Train v. Natural Resources Defense Council, Inc.,

GR UG G GERGeP co cccescéccoenneueeee. aa 14

Village of Arlington Heights v. Metropolitan Housing

Development Corporation, 429 US. 252 (1977) .. 13

Vilage of Belle Terre v. Boraas, 416 U.S. 1 (1974) .. 13

Village of Euclid v. Amber Realty Co., 272 US. 365

re oooooooôccc.c... 12

IL. 22

Ward v. Village of Skokie, 26 Ill. 2d 415, 186 N. E. 2d

2 RRR ere n 16

TABLE OF CONTENTS . v

PAGE

Warth v. Seldin, 422 U.S. 490 (1975))): 13

Weinberger v. Hymson Wescott & Dunning, Inc., 412

Geste.... ed 11

Wheeler v. Montgomery, 397 U.S. 280 (19700) 12

Wisconsin v. Constantineau, 400 U.S, 422 (1971) .... 12

Withrow v. Larkin, 421 U.S. 35 (1975) 11

Wolff v. McDonnell, 418 U.S. 539 (1974) ........... 7

Wood County Bank v. Camp, 348 F. Supp. 1321

reed cvrece 8

Young v. American Mini Theaters, Inc., 427 U.S. 50

oe es cevdvccccesie 13

Zahn v. Board of Public Works, 274 U.S. 325 (1927) 12

Coxsrrruriox AND STaTUTES

U.S. Constitution, Amendment XIV, 11 passim

Clean Air Amendments of 1970, Pub. L. 91-604, 84

ee 14

28 U.S.C. § 1257 (3) (1970) ůʒů ) 2

N.Y. Civil Practice Law and Rules (McKinney 1963)

ee een ese 10

eee eee esse eee 11

bees eee eee cones 3, 8, 10

een eee eee 3

, . .. „„. „ 0 3, 4, 9

New York, N. T., Zoning Resolution § 72-21 passim

ALI Model Land Development Code (1976) ..... 13, 14, 15

R. Anderson, American Law of Zoning (1968) ...... 13, 15

vi TABLE OF CONTENTS

OrRER AUTHORITIES PAGE

Booth, A Realistic Reexamination of Rezoning Pro-

cedure: The Complementary Requirement of Due

Process and Judicial Review, 10 Ga. L. Rev. 753

„% ô wane 16

Bosselman and Callies, The Quiet Revolution in Land

Use Control, A Report to the Council on Envi-

ronmental Quality (1971i177777⸗⸗õ⸗ cece eees 16

Bryden, The Impact of Variances: A Study of State-

wide Zoning, 61 Minn. L. Rev. 769 (1977) ...... 16, 17

Davis, The Requirement of A Trial-type Hearing, 70

Harv. L. Rev. 193 (1950))) 21

K. Davis, Administrative Law. of the Seventies

„ te teen tatinsbonie 20

K. Davis, Administrative Law Text (1973) ......... 8

Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.

A0. .. .de een 7, 11, 20, 22

S. Haycock, The Board of Standards and Appeals:

An Analysis of the Decision Making Process

(1977 ee 17, 19, 23

Makielski, Zoning Legal Theory and Political Prac-

Ten, Ge Ss Gn Es GREE Ki ! 16

J. Makielski, Jr., The Politics of Zoning: The New

FOU Tea Ce hes i bvvivetdtcctdbecn 16

A. Manuel, Local Land and Building Regulations (Na-

tional Commission on Urban Problems 1968) ... 16

Marshaw, The Supreme Court’s Due Process Calculus

for Administrative Adjudication in Mathews v.

Eldridge: Three Factors in Search of a Theory

of Value, 44 U. Chi. L. Rev. 28 (1976) ......... 21

TABLE OF CONTENTS . vii

PAGE

E. MeQuillon, The Law of Municipal Corporations

WU GS, FU hoc . 15

A. Rathkopf, The Law of Zoning and Planning (1972) 22

P. Rohan, Zoning and Land Use Controls (1977) ....13, 14

Sullivan, Araby Revisited: The Evolving Concept of

Procedural Due Process Before Land Use Regu-

latory Bodies, 15 Santa Clara L. 50 (1974) ..... 16, 22

U.S. Dept. of Commerce, Standard State Zoning En-

Shite Dab COORD i one nes eee civevsestes 14

Weinstein, Korn and Miller, N.Y. Civil Practice

rn. ee 8

N. Williams, American Land Law Planning (1975) .. 13,

14, 16

IN THE

Supreme Court of the United States

October Term, 1977

n

4

*

James F. Lawrence, Ropert G. Knorr, Marta McLana-

HAN, ELuzanRTR B. Parkinson and 215 East 72nd Srreet

CoRPORATION,

Petitioners,

vs.

Josern B. Kier, as Chairman, Pamir P. Acusta, as Vice

Chairman, and Harry M. CannolLl., Jonn J. WatsH, JoHN

B. Cruxcorra, as Members of the Board of Standards and

Appeals of the City of New York, Samue, LinpenBaum,

as Applicant, 72nd Street Associates and Davin Bere,

Respondents.

*

*

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the Court of Appeals of the

State of New York entered in this proceeding on Decem-

ber 19, 1977. The said judgment denied a motion by peti-

tioners for leave to appeal to the Court of Appeals.

2

Opinions Below

In denying petitioners’ motion for leave to appeal to it

the Court of Appeals issued no opinion. A similar motion

was denied, without an opinion, by the Appellate Division

of the New York State Supreme Court, First Judicial

Department (the ‘‘Appellate Division’’) on October 25,

1977.

On September 13, 1977, the Court of Appeals granted a

motion by respondents to dismiss the appeal by petitioners

to the Court of Appeals taken as of right. It rendered no

opinion.

The opinion of the Appellate Division is reported at 58

A.D.2d 751, 396 N.Y.S.2d 223 (Ist Dept. 1977) (A. 1-3)?

The opinion of the Supreme Court of the State of New

York, New York County (A. 49) is unreported.

Jurisdiction

The judgment of the New York Court of Appeals was

entered on December 19, 1977. This petition for certiorari

was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

Questions Presented

1. Does the due process clause of the Fourteenth Amend-

ment govern the procedure by which an application for a

zoning variance is determined, under a zoning resolution

such as that of the City of New York?

2. What kind of hearing is required for the making of

the findings of fact mandated by 472-21 of the Zoning

Resolution of the City of New York?

References to the Appendix are indicated as A.—.

—

Constitutional Provision and Statutes

Involved

United States Constitution

. . . nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.“ United States Constitution, Amendment XIV,

$1.

Article 78 of the New York Civil Practice

Law and Rules (McKinney 1963)

‘*$ 7801. Nature of proceeding.

Relief previously obtained by writs of certiorari to

review, mandamus or prohibition shall be obtained in

a proceeding under this article. Wherever in any

statute reference is made to a writ or order of

certiorari, mandamus or prohibition, such reference

shall, so far as applicable, be deemed to refer to the

proceeding authorized by this article... . [at 16].

§ 7804. Procedure.

* 6 *

(d) Pleadings. There shall be a verifled petition,

which may be »companied by affidavits or other

written proof. Where there is an adverse party there

shall be a verified answer, which must state pertinent

and material facts showing the grounds of the re-

spondent’s action complained of. There shall be a

reply to a counterclaim denominated as such and there

shall be a reply to new matter in the answer or where

the accuracy of proceedings annexed to the answer is

disputed. The court may permit such other pleadings

as are authorized in an action upon such terms as it

may specify.

4 a

(e) Answering affidavits; record to be filed; default.

The body or officer shall file with the answer a certified

transcript of the record of the proceedings under con-

sideration, unless such a transcript has already been

filed with the clerk of the court. lat 178-79.]

Zoning Resolution of the City of New York (Vol. I)

**72-21

Findings Required for Variances

When in the course of enforcement of this resolution,

any officer from whom an appeal may be taken under the

provisions of Section 72-11 (General Provisions) has ap-

plied or interpreted a provision of this resolution, and

there are practical difficulties or unnecessary hardship

in the way of carrying out the strict letter of such pro-

vision, the Board may, in accordance with the require-

ments set forth in this Section, vary or modify the pro-

vision so that the spirit of the law shall be observed,

publie safety secured, and substantial justice done.

Where it is alleged that there are practical difficulties

or unnecessary hardship, the Board may grant a variance

in the application of the provisions of this resolution in

the specific case, provided that as a condition to the grant

of any such variance, the Board shall make each and

every one of the following findings:

(a) That there are unique physical conditions, in-

cluding irregularity, narrowness or shallowness of

lot size or shape, or exceptional topographical or

other physical conditions peculiar to and inherent

in the particular zoning lot; and that, as a result

of such unique physical conditions, practical difficul-

ties or unnecessary hardship arise in complying

strictly with the use or bulk provisions of the resolu-

tion; and that the alleged practical difficulties or un-

necessary hardship are not due to circumstances

5

created generally by the strict application of such

provisions in the neighborhood or district in which

the zoning lot is located.

(b) That because of such physical conditions there

is no reasonable possibility that the development of

the zoning lot in strict conformity with the provisions

of this resolution will bring a reasonable return,

and that the grant of a variance is therefore neces-

sary to enable the owner to realize a reasonable re-

turn from such zoning lot. This finding shall not be

required for the granting of a variance to a non-profit

organization.

(c) That the variance, if granted, will not alter the

essential character of the neighborhood or district in

which the zoning lot is located; will not substantially

impair the appropriate use or development of ad-

jacent property; and will not be detrimental to the

public welfare.

(d) That the practical difficulties or unnecessary

hardship claimed as a ground for a variance have

not been created by the owner or by a predecessor

in title. Where all other required findings are made,

the purchase of a zoning lot subject to the restric-

tions sought to be varied shall not itself constitute

a self-created hardship.

(e) That within the intent and purposes of this reso-

lution the variance, if granted, is the minimum vari-

ance necessary to afford relief; and to this end, the

Board may permit a lesser variance than that

applied for.

It shall be a further requirement that the decision or

determination of the Board shall set forth each required

finding in each specific grant of a variance, and in each

denial thereof which of the required findings have not

been satisfied. In any such case, each finding shall be

supported by substantial evidence or other data con-

sidered by the Board in reaching its decision, including

the personal knowledge of or inspection by the members

of the Board. Reports of other City agencies made as a

result of inquiry by the Board shall not be considered

hearsay, but may be considered by the Board as if the data

therein contained were secured by personal inspection.”

[at 292-93.]

Statement of the Case

Each of the individual petitioners owns and resides in

a cooperative apartment in the building owned by peti-

tioner 215 East 72nd Street Corporation (“215 Corp.”), in

the Borough of Manhattan, City and State of New York.

The building is on the northern side of East 72nd Street,

across East 72nd Street from a parcel of real property

owned by respondent 72nd Street Associates (“Associ-

ates”), a partnership of which respondent David Berg is

one of the partners. The parcel is bounded on the west by

the entire blockfront, on the eastern side of Third Avenue,

from East 72nd Street to East 71st Street, and on the south

by the northern side of East 71st Street.

Respondents Joseph B. Klein, as Chairman, Philip P.

Agusta, as Vice Chairman, and Harry M. Carroll, John J.

Walsh and John B. Cincotta, comprised the Board of

Standards and Appeals of the City of New York (the

Board“).

On March 18, 1976, respondent Samuel Lindenbaum, who

was actually the attorney for respondents Associates and

Berg, applied to the Board for substantial variances’ from

The variances sought were: (1) a variance allowing the

building to be constructed with a greater ratio of total floor space

to lot area than permitted by the zoning resolution; (2) a vari-

ance from the zoning requirement that the building be set back

(footnote continued on following ; age)

7

the Zoning Resolution of the City of New York (the “Zon-

ing Resolution”), in connection with the proposed construc-

tion of a 35 story residential apartment building on its

parcel. Petitioners and a large number of other nearby

residents opposed the application, at a “kind of hearing’”

held by the Board.

The grant of variances by the Board is authorized and

governed by § 72-21 of the Zoning Resolution. Variances

may be granted if “it is alleged that there are practical dif-

ficulties or unnecessary hardship.” The section mandates

“that as a condition to the grant of any such variance, the

Board shall make each and every one of the . . . findings

. .” set forth in the section.

From the very outset of the Board proceeding, peti-

tiohers objected to the procedures of the Board as violative

of the mandates of the due process clause of the Fourteenth

Amendment, with respect to the “individualized fact find-

ing” (Gonzalez v. United States, 348 U.S. 407, 412 (1955) )

required by the Zoning Resolution. Some of those pro-

cedures are set forth in the Board’s Rules of Procedure

(the “Board Rules”). The remainder appear to be based

simply upon the unwritten and self-serving traditions of

the small and select group of attorneys, architects and

engineers who dominate most of the important business

before the Board.

(footnote continued from preceding page)

from the lot line; (3) a variance allowing the builders to exceed

by more than half the density limits of the zoning resolution as

to the number of ing rooms; (4) a variance permitting a re-

duction in the mandated number of off-street parking spaces; and

(5) a variance waiving the provision of the zoning resolution

which requires a specified minimum amount of space between

buildings located on the same zoning lot.

* See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Friendly,

ree — Hearing, 123 U. Pa. L. Rev. 1267 (1975) [hereinafter

8

These written and unwritten rules barred any cross-

examination, sanctioned the proof of critical adjudicative

facts“ by unsworn statements, documents and letters, con-

doned the practice of having the same persons to per-

form the functions of attorney, principal and witness, and

otherwise rendered it impossible for petitioners to

participate meaningfully in the Board’s fact finding

process. All of petitioners’ objections were overruled.

On July 13, 1976, a kind of hearing was held. On Septem-

ber 14, 1976, the Board granted each and every one of

the variances sought. In so doing it did not make the

specific findings required for variances by the Zoning

Resolution. The Board instead simply, RxsoLvnp, that [it]

does hereby make each and every one of the required find-

ings . . . and that the application be and it hereby is

granted under 4 72-21 of the Zoning Resolution

Pursuant to Article 78° of the New York State Civil

Practice Law and Rules (‘‘CPLR’’), petitioners, on October

14, 1976, petitioned the New York State Supreme Court,

New York County, for review of the Board’s action au-

thorized by that Article. On or about January 20, 1977,

the Board filed its Answer to the petition and on or about

January 21, 1977, respondents Lindenbaum, Associates and

The term “‘adjudicative facts,” as used in this petition, means,

as defined by Davis in his treatise on administrative law, the “facts

about the parties and their activities, businesses and properties.

Adjudieative facts usually answer the questions of who did what,

where, when, how, why, with what motive or intent; adjudicative

facts are roughly the kind of facts that go to a jury in a jury

case.” K. Davis, Administrative Law Text § 7.03 (1972); see also

Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966); Wood County

Bank v. Camp, 348 F.Supp. 1321 (D.D.C. 1972).

* Article 78 provides for the “[r]elief previously obtained by

certiorari to review, mandamus or prohibition ....” For a state-

ment of the history and function of Article 78, see 8 Weinstein,

Korn and Miller, N.Y. Civil Practice § 7801.01 et seg. (1977).

Berg filed their Answer. Each of the answers set forth

„A Complete Affirmative Defense. Paragraph ‘‘28.’’ of

the Board’s Answer alleged:

28. In granting the application for the variance

pursuant to Section 72-21 of the Zoning Resolution,

subject to the e ons set forth in its resolution,

the Board, on the evidence in the record, an

inspection of the subjec: _ erty by a committee of

the Board, and by reason c. che expert knowledge of

the Board, made the following findings’’ (emphasis

supplied).

Following the paragraph quoted above, the Board's

Answer set forth nineteen subparagraphs of detailed ‘‘find-

ings,’’ including each of the specific findings required by

the Zoning Resolution for the grant of the variances. The

Board never made the ‘‘findings’’ set forth in its Answer.

No such ‘‘findings’’ appeared in the certified transcript

of the record of the proceedings’’ (CPLR § 7804 (e)) filed

by the Board. The only sense in which it might be claimed

that the Board made the said “findings,” albeit six

months after its decision, is that the Chairman of the

Board, respondent Klein, verified the Answer on January

18, 1977.

On February 3, 1977, the New York State Supreme Court

dismissed the Article 78 petition. In doing so it rejected

petitioners’ constitutional due process arguments, as well

as arguments by petitioners based upon violations by the

*The answer by Lindenbaum, et al., alleged that: “22. The

Board’s decision granting the variances was reasonable, prudent

and within the sound exercise of the Board’s discretion. The

resolution of the Board and its findings of fact, set forth in its

verified answer and return to the petition, are fully supported by

the evidence of record. (emphasis supplied). The said answer

thereafter set forth thirteen paragraphs and numerous sub-para-

graphs of such “evidence”, covering substantially the same matters

as the Board’s “findings” in its Answer.

10

Board of its own Rules.’ Petitioners appealed to the New

York State Supreme Court, Appellate Division, First De-

partment, arguing again their constitutional claims. The

Appellate Division affirmed the lower court decision, but in

doing so stated that:

“We are perturbed by the point well presented by

the appellant that the Board in granting the applica-

tion for variances, did not make specific findings,

but merely noted that required findings had been

made. It was not until the answer and return in

this Article 78 proceeding that the facts found, which

lead to its conclusions were disclosed. Further, the

Zoning Resolution of the City of New York, § 72.21,

requires these findings. Whether this accords with

procedural due process, cf. Goldberg v. Kelly, 397

U.S. 254, is a question properly raised.“ (A. 3).

Petitioners appealed to the New York State Court of

Appeals under CPLR S 5601 (b), permitting an appeal to

it as of right,

“1. from an order of the appellate division which

finally determines an action where there is directly

involved the construction of the constitution of the

state or of the United States;”

Respondents Lindenbaum, et al., thereafter moved to

dismiss the appeal to the Court of Appeals on the ground

that no substantial constitutional question was directly

involved. The Court of Appeals granted the said motion

by order dated September 13, 1977. Both the Appellate

Division and the Court of Appeals thereafter denied, by

In doing so the Court misstated the thrust of petitioners’

constitutional arguments, referring “to the contentions of the peti-

tioners that the Board did not follow its own procedural rules and

thus deprived petitioners of their constitutional rights. (em-

phasis supplied) (A. 8).

il

orders dated October 25, 1977 and December 19, 1977,

respectively, a motion by petitioners for leave to appeal

to the Court of Appeals, made under CPLR § 5602, pro-

viding for appeals to the Court of Appeals by permission.

Reasons for Granting the Writ

I. This Case Involves Important Constitutional Issues

Upon Which This Court Has Not Yet Passed.

Cireuit Judge Henry J. Friendly has stated that:

„Since then [Goldberg v. Kelly, 397 U.S. 254

(1970)], we have witnessed a due process explosion in

which the [Supreme] Court has carried the hearing

requirement from one new area of government action

to another, an explosion which gives rise to many ques-

tions of major importance to our society.’’ Friendly

at 1268.

Judge Friendly discussed Goldberg and its “considerable

progeny” (id. at 1273), pointing out “some turning back“

(id. at 1274) from hearing requirements in the 1973 term

of the Court and “a resumption of the trend toward

greater and greater insistence on hearings” (id. at 1274),

in the 1974 term.“

* Prior to Judge Friendly’s article, the due process explosion

had reached the foll areas: medical examiners’ hearings,

Withrow v. Larkin, 421 U.S. 35 (1975); suspension of public high

school studenis, Goss v. Lopez, 419 U.S. 565 (1975); Interstate

Commerce Commission certification “of * 2 and

necessity ” Bowman Transportation, Inc. v. Arkansas

Best Freight System, Inc., 419 U.S. 281 (1974); dismissal hear-

ings for nonprobationary federal employees, Arnett v. Kennedy,

416 U.S. 134 (1974); Food and Administration decision to

withdraw “new drug applications,” Weinberger v. Hymson Wes-

cott & Dunning, Inc., 412 U.S. 609 (1973); probation revocation

proceedings, Gagnon v. Scarpelli, 411 U.S. 778 (1973); state

(footnote continued on following page)

12

The “due process explosion” has not yet reached zoning

or related land use proceedings. Beginning with Village of

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), this

Court has decided 13 zoning cases,’ all of which have in-

volved substantive rights.

(footnote continued from preceding page)

optometry board hearings, Gibson v. Berryhill, 411 U.S. 564

(1973); dismissals of teachers at public institutions, Perry v.

Sendermann, 408 U.S. 593 (1972) and Board of Regents v. Roth,

408 U.S. 564 (1972); parole revocation proceedings, Morrissey v.

Brewer, 408 U.S. 471 (1972); procedures for the repossession of

chattels, Fuentes v. Shevin, 407 U.S. 67 (1973); proceedings for

termination of social security disability payments, Richardson v.

Wright, 405 U.S. 208 (1972); proceedings for the termination of

governmental employees, Connell v. Higgenbotham, 403 U.S. 207

(1971); suspension of driver's license hearings, Bell v. Burson, 402

U.S. 535 (1971); posting of names of individuals deemed unfit

to consume alcoholic beverages, Wisconsin v. Constantineau, 400

U.S. 422 (1971); mail violation hearings, Rowan v. United States

Post Office Department, 397 U.S. 728 (1970); termination proce-

dures for old age benefits, Wheeler v. Montgomery, 397 U.S. 280

(1970); termination procedures for public assistance, Goldberg

v. Kelly, supra, and; state commission hearings relating to criminal

violations of labor-management relation laws, Jenkins v. Mc-

Keithen, 395 U.S. 411 (1969).

Since then this Court has ruled upon the hearing require-

ments of procedural due process in these areas: dismissal of

students for unsatisfactory academic performance, Board of

Curators v. Horowitz, 46 U.S.L.W. 4179 (February 28, 1978);

procedures for removal of foster children from their foster homes,

Smith v. Organization of Foster Families for. Equality and Re-

form, 97 S.Ct. 2094 (1977); imposition of corporal punishment in

publie schools, Ingraham v. Wright, 97 S.Ct. 1401 (1977); transfer

of prison inmates, Montanye v. Haynes, 96 S.Ct. 2543 (1976) and

Meachum v. Fano, 96 S.Ct. 2532 (1976); termination of employ-

ment of a city policeman, Bishop v. Wood, 96 S.Ct. 2074 (1976);

defamation of reputation, Paul v. Davis, 96 S.Ct. 1155 (1976),

and; the termination of social security disability benefits, Mathews

v. Eldridge, 424 U.S. 319 (1976).

Village of Euclid v. Ambler Realty Co., supra [comprehen-

sive zoning ordinance held constitutional]; Zahn v. Board of Pub-

lic Works, 274 U.S. 325 (1927) [zoning ordinance not unconstitu-

tional as applied) ; Gorieb v. Fox, 274 U.S. 603 (1927) [set-back

provision in zoning ordinance held constitutional]; Nectrow v. City

(footnote continued on following page)

13

This case poses important questions of the applicability

of procedural due process requirements, particularly of

Goldberg and its progeny, to the quasi-adjudicative as-

pect“ of zoning law and practice, the actions of zoning

boards of appeals on applications for variances.”

(footnote continued from preceding page)

of Cambridge, 277 U.S. 183 (1928) [restrictions in zoning regula-

tions must bear a substantial relation to the public health, safety,

morals, or general welfare]; State of Washington ex rel. Seattle

Title Trust Co. v. R/ berge, 278 U.S. 116 (1928) [city ordinance

permitting construction of philanthropic institutions in zoning

district only on written consent of nearby landowners held uncon-

stitutional] ; Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)

[ordinance Tegulating dredging and pit excavation held valid ex-

ercise of police power]; Village of Belle Terre v. Boraas, 416 U.S.

1 (1974) [zoning ordinance limiting occupancy of one-family

dwellings to traditional families or to groups of not more than two

unrelated persons held constitutional]; Warth v. Seldin, 422 U.S.

490 (19755 [petitioners, residents of Rochester, New York, held

not to have standing to challenge the allegedly unconstitutional

zoning practices of a nearby suburb]; Hills v. Gautreaux, 425

U.S. 284 (1976) [“comprehensive metropolitan plan” to desegre-

gate Chicago’s public housing held — vondl op City of East-

lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) [re-

quirement of approval by 55% of voters in referendum before in-

stitution of land use changes held constitutional]; Young v. Ameri-

can Mini Theaters, Inc., 427 U.S. 50 (1976) [city zoning ordinance

restricting location of adult movie theaters and book stores held not

to violate due process, equal protection or freedom of speech];

Village of Arlington Heights v. Metropolitan Housing Develop-

ment Corporation, 429 U.S. 252 (1977) [decision of petitioner

Village to deny rezoning application held not violative of equal

protection clause]; Moore v. City of East Cleveland, 97 S. Ct.

1932 (1977) [ordinance making it a crime for son and grandsons

living with homeowner held unconstitutional].

10 See ALI Model Land Development Code, Art. 2 (1976); 3

R. Anderson, American Law of Zoning § 16.01 (1968) [herein-

after Anderson]; 1 P. Rohan, Zoning and Land Use Controls

§ 1.02[5] et seg. (1977) [hereinafter Rohan]; 5 N. Williams,

American Land Law Planning 2-3 (1975) (hereinafter Williams].

11 A variance has been defined in 2 Anderson at § 14.02 as:

. . . an authorization for the construction or maintenance

of a building or structure, or for the establishment or main-

(footnote continued on following page)

14

Variance provisions are found in virtually all zoning

ordinances. This is in part owed to the fact that the en-

abling acts in all fifty states were originally based, and in

47 states are still based, on the Standard State Zoning

Enabling Act (“SEZA”) prepared by the U.S. Department

of Commerce in 1922. 2 Williams at 355. It authorized

variances “from the terms of the ordinance where literal

enforcement would result in unnecessary hardship.” ALI

Model Land Development * Commentary at 1-2

(1976).

A provision for variances is necessary to prevent the

ordinance being deemed void and unconstitutional in its

application to particular property, if such application re-

sults in unique hardship, rendering it arbitrary, oppressive

or confiscatory.* The quasi-judicial action of a board

of zoning appeals, in acting upon a variance application,

is to be distinguished from the legislative or quasi-legisla-

tive action of adoption or amendment of the zoning ordi-

nance.“ Somewhere between the two is the action involved

in the rezoning of a specific piece of land.“

(footnote continued from preceding page)

tenance of a use of land, which is prohibited by a zoning

ordinance. It is a right granted by a board of adjustment

pursuant to power vested in such administrative body by

statute or ordinance, and is a form of administrative relief

from the literal import and strict application of zoning regula-

tions.” (footnotes omitted).

For a discussion of “variances” in the slightly different context

of the Clean Air Act Amendments of 1970, Pub. L. 91-604, 84

Stat. 1676; see Train v. Natural Resources Defense Council, Inc.,

421 U.S. 60 (1975).

12 See Chicago v. Sachs, 1 III. 2d 342, 115 N.E.2d 762 (1953);

Schaible v. Board of Adjustment, 134 N. JL. 473, 49 A. 2d 50

(1946).

18 Rubin v. Board of Directors, 16 Cal. 2d 119, 124, 104 P. 2d

1041, 1043 (1940); see also Rohan § 1.02 [5] et seg. 5 Williams at

1-3.

Compare South Gwinnet Venture v. Pruitt, 491 F.2d 5 (5th

Cir.), cert. denied, 419 U.S. 837 (1974), reversing en banc, 482 F.

(footnote continued on following page)

—— —

15

In order to discharge its quasi-adjudicatory function, it

is almost universally required that a zoning board of ap-

peals make specific findings and base its decision on such

findings.“ The duty to make the specific findings is not

met by parroting the highly generalized statutory

phrases. Lindburg v. Zoning Board of Appeals,

8 III. 2d 254, 133 N.E.2d 266 (1956).**

Section 72-21 of the Zoning Resolution is in all respects

typical in its requirement of specific findings. Violations

by the Board of its duty to make findings as the basis of its

decision, and substitution of post-hoc rationalization if and

when the decision is reviewed by court litigation, have been

adjudged unlawful. Application of New York City Hous-

ing & Redevelopment Authority v. Foley, 23 A.D.2d 84,

258 N.Y.S.2d 526 (1st Dept. 1965). Inexplicably, New York

State courts countenance the violation by stating that re-

mand to the Board is pointless. Id. at 87, 258 N.Y.S.2d at

529. Courts of other states have ruled differently.“

The practices of zoning boards of appeals under thou-

sands of zoning ordinances, virtually all of which vest the

(footnote continued from preceding page)

2d 389 (5th Cir. 1973), with Chrobuck v. Snohomisa County, 78

Wash. 2d 858, 480 P.2d 489 (1971) and Ward v. Village of Skokie,

26 III. 2d 415, 186 N.E.2d 529 (1962). See also ALI Model Land

Development Code, Note to § 2-312 (1976).

In Montgomery County v. Woodward c — 2 Inc., 280 Md.

686, 376 A. 2d 483 (1977), cert. denied sub nom., Funger v. Mont-

gomery County, 46 U. S.L. W. 3526 (February 2 1978), the ad-

ministrative body was not acting in a quasi-judi capacity.

15 See, e.g., Clark Heating Oils, Inc. v. Zoning Board of Ap-

peals, 159 Conn. 234, 268 A.2d 381 (1970); Baker v. Zoning Board

of Review, 102 R.I. 134, 228 A.2d 859 (1967); Collins v. Behan,

285 N.Y. 187, 33 N.E.2d 86 (1941); see also 3 Anderson § 20.41.

1 See also 3 Anderson § 20.41; 8 E. McQuillon, The Law of

Municipal C ions § 25.272 (3rd ed. 1976); 2 E. Yorkley,

Zoning Law and Practice § 15-17 (Cum.Supp. 1976).

1" See Lindburg v. Zoning Board of Appeals, supra; see also

Badanek v. Schroskey, 21 Mich. App. 582, 175 N.W.2d 784 (1970).

16

power to grant variances in zoning boards of appeals, the

tens of thousands of variance applications each year, the

millions of people whose interests are significantly affected

by such applications, and the hundreds of millions of dol-

lars of property values probably affected thereby,“ have

prompted a number of studies and criticisms of the vari-

ance process. One of the more authoritative studies states

that:

„Few legal institutions have been more consistently

and vigorously criticized than zoning boards of adjust-

ment, whose major function is to consider applications

for variances. Commentators, while not denying that

variances are a necessary ‘flexibility device,’ assert

that the boards grant relief too freely, flouting the

law by following their own permissive inclinations

rather than the stricter standards laid down by the

courts.’’ (footnotes omitted)“

One of the means by which zoning boards of appeals fol-

low “their own permissive inclinations rather than the

18 See A. Manuel, Local Land and Building Regulation (Na-

tional Commission on Urban Problems 1968). In addition to the

municipal zoning boards of appeals ruling upon variances, there

are numerous county, regional, state and interstate agencies now

exercising zoning powers and necessarily acting upon variance or

analogous applications. See Bosselman and Callies, The Quiet

Revolution in Land Use Control, A Report to the Council on En-

vironmental Quality (1971); 5 Williams § 160 et seq.; Sullivan,

Araby Revisited: The Evolving Concept of Procedural Due Proc-

ess Before Land Use Regulatory Bodies, 15 Santa Clara L. 50

(1974) [hereinafter Sullivan].

% Bryden, The Impact of Variances: A Study of Statewide

Zoning, 61 Minn. L. Rev. 769 (1977) [hereinafter Bryden];

see also Booth, A Realistic Reexamination of Rezoning Procedure:

The Complementary Requirement of Due Process and Judicial

Review, 10 Ga. L. Rev. 753 (1976); Sullivan.

In addition to the criticisms cited by Professor Bryden, see J.

Makielski, Jr., The Politics of Zoning: The New York Experience

(1966); Makielski, Zoning: Legal Theory and Political Practice,

45 J. of Urban L. 1 (1967).

17

stricter standards laid down by the courts,” Bryden at 7, “is

by parroting the highly generalized statutory phrases

VLindburg v. Zoning Board of Appeals, supra, in lieu

of making the detailed findings required by law. The

Board’s practice in doing so was specifically addressed in

a study by the Citizens Union Research Foundation, Inc.

of the City of New York, published in 1977.“ The study

presented ‘‘a detailed analysis of 168 cases in the Bor-

oughs of Manhattan and Brooklyn that were before the

Board in 1971, 1972, 1973 and 1974.” (Id. at 9). Part of

its “Summary or Frxprnes” follows:

“Although Section 72-21 of the Zoning Resolution re-

quires the Board to set forth each of Five Findings

supported by substantial evidence before it can grant

a variance, in practice these findings have often served

little more than a ceremonial function.“

A second means by which zoning boards, particularly

the Board herein, follow “their own permissive inclina-

tions,“ is by relying upon inspection of the property and

their own presumed expertise, but nowhere indicating to

the parties or to a reviewing court the facts thereby

learned and presumably relied upon as evidence. The

20 8. Haycock, The Board of Standards and Appeals: An

Analysis Of The Decision Making Process (1977) [hereinafter the

“Citizens Union Study”).

* In addition to the statement in the Summary or FInpINGs,

the following comment appears at p es 21 and 22:

“No case by case evolution of standards for variances has been

possible as Board rulings generally contain only the formal

orders of the Board. There is no oral or written opinion of

the Board telling interested persons why a decision was made.

The Board simply states that:

Whereas, the premises and surrounding area were inspected

by a Committee of the Board; and

Whereas, the Board has determined that the evidence in the

record supports the findings required to be made under See-

tion 72-21 of the Zoning Resolution, and that the applicant

is therefore entitled to relief on the grounds of practical

difficulty and/or unnecessary hardship.” (footnote omitted).

18

problem is the same as that posed by this Court, per Car-

dozo, J., in Ohio Bell Telephone Co. v. Public Utilities Com-

mission, 301 U.S. 292, 303 (1937):

“To put the problem more concretely: how was it pos-

sible for the appellate court to review the law and the

facts and intelligently decide that the findings of the

Commission were supported by the evidence when the

evidence that it approved was unknown and unknow-

able?”

In this case the Board indulged in its ritualistic obfusca-

tion. The introductory sub-paragraph of paragraph “28”

of its Answer, following which are the ten pages of the

detailed post-hoc ‘‘findings,’’ states:

“In granting the application for the variance pursuant

to Section 72-21 of the Zoning Resolution, subject to the

conditions set forth in its resolution, the Board, on the

basis of evidence in the record, an inspection of the

subject property by a committee of the Board, and by

reason of the expert knowledge of the Board, made

the following findings :”

To the practices described above, may be added: the

prohibition of cross-examination, the frequent use of and

reliance upon unverified evidence,“ the denial of any

right of subpoena, the absence of any discovery, and the

dual or treble capacities in the proceeding of those seeking

the variance.” The proceedings are also frequently con-

In this case Mr. Lindenbaum was the “Applicant” and also

the attorney for respondent Associates, the owner of the property.

Respondent Berg was a partner. A principal aspect of the

Application to the Board was a 17 page, single space letter, en-

titled “SraTeMENT or Facts,” signed “Samuel H. Lindenbaum of

Rosenman Colin, et al., Applicant.” The letter is under the letter-

head of “Rosenman Colin Freund Lewis & Cohen.” Berg, an at-

torney and also a real estate developer, interposed affidavits before

the Board, furnishing thereby both lay and expert testimony. He

also was of counsel on court papers in the litigation.

19

ducted in an atmosphere of hostility to any persons and

interests outside of the zoning establishment comprised of

the boards themselves and the generally small number of

specialists representing the applicants for the variances.“

While no single one of the practices may render the

process unconstitutional, the aggregate of the practices

denies non-zoning establishment outsiders a fair hearing.

Petitioners submit that the time has come for this Court to

consider the ventilation of zoning boards’ cloistered cham-

bers with the fresh air of post-Goldberg procedural due

process.

II. The Board Violated Procedural Due Process.

„[Djue process is flexible and calls for such procedural

protections as the particular situation demands.’’ Mor-

rissey v. Brewer, supra, at 481. As Justice Frankfurter

stated in his concurring opinion in Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 162 (1951),

quoted in Cafeteria Workers v. McElroy, 367 U.S. 886, 895

(1961),

‘‘unlike some legal rules [procedural due process] is

not a technical conception with a fixed content unre-

lated to time, place and circumstances.’’

23 The Citizens Union Study found that the Board granted the

variances in 133, or 79.2% of the 168 cases, and denied the

variances in 13, or 7.7% of the cases (id. at 25). In 121 cases or

72%, there were intervenors; in 44 cases the interventions were

consents only, in 39 vases there were objectors only, and in 38

fore the Board in this case, stating:

“Samuel Lindenbaum was involved only in Manhattan cases,

89% of the time as a representative of a professional

developer. He was the attorney in 76% of the cases involv-

noting

did either of these attorneys lose a case.” (Id. at 13).

20

If there ever was, there is no longer, any formula under

which the name given to a proceeding, e.g. ‘‘legislative’’

or ‘‘adjudicatory,’’ or to the facts at issue in the proceed-

ing, determines whether a ‘‘trial-type hearing,’’ with all

of its incidents, is required.* What does determine the

kind of hearing“ due process requires is a sophisticated

analysis of the nature of the proceeding, particularly of

the facts at issue. Based upon such analysis, what is a

fair hearing ‘‘at a meaningful time and in a meaningful

manner” can be ascertained. Armstrong v. Manzo, 380

U.S. 545, 552 (1965). An important aspect of that analysis

is consideration of the three distinct factors’’ set out in

Mathews v. Eldridge, swpra, at 334-35:

‘‘(F Jirst, the private interest that will be affected by

the official action; second, the risk of erroneous depri-

vation of such interest through the procedures used,

and the probative value, if any, of additional or sub-

stitute safeguards; and finally, the Government’s in-

terest, including the function involved and the fiscal

and administrative burdens that the additional or sub-

stitute procedural requirement would entail.’’

* Friendly at 1268.

Professor Davis, analyzing Mathews v. Eldridge, supra, and

Goss v. Lopez, supra, describes the requirement of the par-

ticularized analysis as follows:

“A main idea of the old law was that each agency for each

function had to make a choice between trial procedure and no

trial procedure, and courts would approve or disapprove each

such choice. The main idea of the new law, represented by

Eldridge and Goss, is that each agency for each function must

work out procedure that will be both efficient and fair

procedure that may include some of the elements of a trial

and not others.” (emphasis added). K. Davis, Administra-

tive Law of the Seventies § 7.00-1-2 (Supp. 1977).

There is no question in this case of the applicability of

procedural due process, requiring some kind of hearing. But see

Board of Curators v. Horowitz, supra; Paul v. Davis, supra.

21

As to the first Mathews factor, all of the petitioners have

invested tens of thousands of dollars in the real property

owned by them. No persons exist who could have more

substantial private interest [s] that will be affected“ [ad-

versely] by the official action’’ of the Board, increasing

by millions the value of Associates’ property.

The second Mathews factor requires examination into

the nature of the facts at issue. Clearly, most of the facts

necessary for the Board to find in order to grant a vari-

ance, specified in 472-21 of the Zoning Resolution, were

“individualized” or “adjudicative’’ facts. The “unique

physical conditions” of the particular property, the “prac-

tical difficulties or unnecessary hardship . . . in comply-

ing strictly . . .” with the Resolution, whether or not the

variance is “necessary to enable the owner to realize a

reasonable return . . .” and whether or not the difficulty

has been created by the Applicant himself, the facts put in

issue by § 72-21, are “about the parties and their activities,

businesses, and properties. Davis, The Requirement

Of A Trial-type Hearing, 70 Harv.L. Rev. 193, 199 (1956).

The adjudicative nature of the facts relates directly to

both “the probative value . . of [the] additional or sub-

stitute safeguards . . .” sought by petitioners and denied

by the Board, and “the risk of erroneous deprivation . . .

through the procedures used.” The “safeguards” sought by

petitioners, several of which are among Judge Friendly’s

“Elements of A Fair Hearing,” are discussed below,

seriatim.

One safeguard was the requirement that the facts be

found and that the decision then be made. In reversing the

order of things, the Board denied Element “9” of Judge

„ See Marshaw, The Supreme r See re

Administrative Adjudication in Mathews v. Three

Factors in Search of a Theory of Value, 44 U. Chi. Rev. 28,

46-54 (1976).

Friendly's fair hearing elements, “a Statement of Rea-

sons.” Friendly at 1291.

A second “additional safeguard” was some right of

eross-examination. The Board assumed that it did not have

any discretion to consider the matter. This was in conflict

with the weight of authority in other states. See, e.g.,

Waddell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d

152 (0949).

A third “additional safeguard” sought was some right

to subpoena witnesses. Judge Friendly’s Elements “4” and

“5” are “The Rights to Call Witnesses, [and] to Know the

Evidence Against One.” Id. at 1282.

A fourth “additional safeguard” was the demand that

whatever facts the Board ascertained from its “inspection

of the subject property by a committee of the Board, and

by reason of the expert knowledge of the Board” (Board

Answer, par. “28”), be identified and set out in its findings.

The Board’s failure to do so not only violated New York

law, Application of New York City Housing d Redevelop-

ment Authority v. Foley, supra, but denied to petitioners

Element “6” of Judge Friendly’s elements, “To Have Deci-

sion Based Only on the Evidence Presented.” Id. at 1282.

A fifth ‘‘additional safeguard’’ was a requirement that

all of the principal ‘‘testimony’’ be verified. This, together

with cross-examination, has been characterized by the

Court of Appeals of New York State, in a context other

than zoning, as one of ‘‘the traditional safeguards to truth-

fulness developed in our common-law procedure.“

Hecht v. Monaghan, 307 N.Y. 461, 121 N.E.2d 421 (1954).

Much of the principal ‘‘evidence’’ before the Board, in-

cluding the financial data underlying the ‘‘reasonable re-

* See also 2 A. Rathkopf, The Law of Zoning and Planning

ch. 43 §3 (1972); 1 E. Yorkley, Zoning Law and Practice (2d ed.

1953) ; Sullivan.

20 23

turn’’ determination, was unverified and second or third

degree hearsay.

Clearly, three of Judge Friendly’s Elements of a Fair

Hearing’’ were denied petitioners by the Board. Bach

other additional safeguard’’ sought by petitioners was

important for their meaningful participation in the Board’s

individualized fact finding.

The last of the three Mathews factors is that of the

“fiscal or administrative burden” that may arise out of the

imposition of the “additional safeguards.” Petitioners are

unable to measure those burdens accurately in dollars or

man hours. The one factual analysis which they can point

to is the Citizens Union Study, which found that in only

eight of 168 variance proceedings studied, were inter-

venors, consenting or opposing, represented by attorneys.

It is unclear how many of the eight or fewer attorneys

would avail themselves of any of the “additional safe-

guards” which this Court might direct if it establishes some

minimal standards. What is clear is that any “additional

safeguard” may impose some burden upon the offending

agency.

Petitioners do not claim that every one of the procedures

denied them is indispensable to procedural due process.

They do claim that denial of ali was unconstitutionally im-

permissible. They submit that this Court, by the grant of

this petition, should enable itself to consider whether zon-

ing variance proceedings may continue to enjoy a constitu-

tionally privileged status.

4

Conclusion

For the reasons set forth herein, a writ of cortiorari

should be granted and the judgment below should be

reversed.

Dated: March 17, 1978.

Respectfully submitted,

Davm Sive

Winer, Neuburger & Sive

Attorney for Petitioners

Office & P.O. Address

425 Park Avenue

New York, New York 10022

Tel. (212) 421-2150

LAURENCE May

Of Counsel

la

APPENDIX A

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on July 5, 1977.

Present—Hon. Francis T. Murphy, Jr.,

Presiding Justice,

Theodore R. Kupferman,

Herbert B. Evans,

Louis J. Capozzoli,

Justices.

531

—

*

215 East 72nd Street Corporation, James F. Lawrence,

Robert G. Knott, Martha MeLanahan and Elizabeth

Parkinson,

Petitioners-Appellants,

against

Joseph B. Klein, as Chairman, Philip P. Agusta, as Vice

Chairman, and Harry M. Carroll, John J. Walsh, John

B. Cincotta as Members of the Board of Standards and

Appeals of New York City, Samuel Lindenbaum, as

Applicant, 72nd Street Associates and David Berg,

Respondents-Respondents.

*

*

An appeal having been taken to this Court by the peti-

tioners-appellants from a judgment of the Supreme Court,

New York County (Helman, J.), entered on February 25,

1977, denying the application and dismissing the petition,

and said appeal having been argued by Mr. David Sive

2a

Appendix A.

of counsel for the appellants, and by Mr. Leonard Olarsch,

of counsel for the respondent Board of Standards and

Appeals, and by Mr. Gilbert S. Edelson, of counsel for the

respondents Lindenbaum, 72nd Street and Berg; and due

deliberation having been had thereon, and upon the memo-

randum decision of this Court filed herein,

It is unanimously ordered that the judgment so appealed

from be and the same is hereby affirmed, without costs and

without disbursements.

ENTER:

JEROME L. RxINxSTEIN

Deputy Clerk.

Murphy, P. J., Kupferman, Evans, Capozzoli, JJ.

531 215 East 72nd Street Corporation, et al.,

Petitioners-Appellants,

—against--

Joseph B. Klein, etc., et al.,

Respondents-Respondents.

D. Sive

L. Olarsch

G. S. Edelson

Judgment of the Supreme Court, New York County

(Helman, J.) entered February 25, 1977, unanimously af-

firmed without costs and without disbursements.

Initially, we affirm for the reasons stated at Special

Term. As was said in Matter of Levy v. Bd. of Standards

3a

Appendiæ A.

& Appeals, 267 N. V. 347, 351 (Lehman, J.):

“The Board may act upon its own knowledge of

conditions or may make its own survey. ‘In that event,

however, it must set forth in its return the facts

known to its members but not otherwise disclosed.’

(People ex rel. Fordham M. R. Church v. Walsh, 244

N. Y. 280, 287.) The court will not interfere with the

exercise of judgment by the Board where the record

discloses a basis for the exercise of judgment, but in

the return there must be disclosure of facts upon which

a reviewing court can determine that, under the stat-

ute, the Board had power to grant a variation and that

there was scope for the exercise of such judgment.“

We are perturbed by the point well presented by the

appellant that the Board in granting the application for

variances, did not make specific findings, but merely noted

that required findings had been made. It was not until the

answer and return in this Article 78 proceeding that the

facts found, which lead to its conclusions, were disclosed.

Further, the Zoning Resolution of the City of New York,

§ 72-21, requires these findings. Whether this accords with

procedural due process, cf. Goldberg v. Kelly, 397 U. S. 254,

is a question properly raised. However, the practice, con-

doned, if not upheld, by the Court of Appeals has been to

allow reliance on findings contained in the return to the

petition. Matter of N. T. City Housing d Development Bd.

v. Foley, 23 A. D. 2d 84, af d without op., 16 N. Y. 2d 1071;

see Matter of Elliott v. Galvin, 33 N. Y. 2d 594, 596.

Order filed.

4a

APPENDIX B

Opinion.

SUPREME COURT

New York County

Special Term: Part I

sé

*

In the Matter of the Application of 215 East 72nd Srreer

Corporation, JAMes R. Lawrence, Rosperr G. Kworrt,

MartHa MoLANAHAN and ELABETR B. Parkinson,

Petitioners,

For a Judgment Pursuant to Article 78 of the

Civil Practice Law and Rules

against

JosepH B. KLEIN, as Chairman, Pamir P. Acusta, as Vice

Chairman, and Harry M. Carrot, JoRx J. CI Norra, as

Members of the Board of Standards and Appeals of the

City of New York, Saul. Linpensaum, as Applicant,

72nd Srreer Associates and Davm Bere,

Respondents.

Heiman, J.:

This proceeding is brought pursuant to article 78 of the

CPLR for a judgment annulling a determination of the

Board of Standards and Appeals of the Board of Stand-

ards and Appeals of the City of New York which granted

several variances from the strict application of the Zoning

Resolution of the City of New York, to the applicant,

Samuel Lindenbaum, with relation to the premises located

at East 72nd Street and Third Avenue in the City of New

5a

Appendix B.

York. The determination of the Board is challenged on

the ground that it acted in violation of lawful procedure,

disregarded its own Rules of Procedure, acted in an arbi-

trary and capricious manner and made findings not sup-

ported by substantial evidence.

The zoning lot involved in the proceeding occupies the

entire blockfront along the east side of Third Avenue,

between 7Ist and 72nd Streets in Manhattan. It is an

irregular ‘‘L’’ shaped parcel with a depth of 127 feet east

of Third Avenue on 72nd Street and 185 feet along 71st

Street. The lot has 4 buildings, 1 occupied by a charitable

organization, 2 tenement buildings, and a 1 family build-

ing. It has an area of approximately 32,000 square feet

and the lot is located in an R10, Ci-5, Ci-9, and R8 zoning

district.

In March of 1976 the Borough Superintendent of Man-

hattan disapproved the application of the owner (Asso-

ciates) to demolish 2 of the buildings and to construct on

about 13,000 square feet of the zoning lot a:85 story build-

ing. Generally, the obligations of the Borough Superin-

tendent were concerned with the proposed floor area ratio

as related to the maximum specified for that district, the

height of the front wall, the number of rooms and the

minimum distance between buildings, as well as required

parking space.

On March 23, 1976, Associates appealed to the Board

pursuant to Section 72-21 of the Zoning Resolution and

Section 666 of the City Charter for a variance. In ac-

cordance with the Board’s Rules of Procedure, the local

Community Board was notified of the application. The

latter held 2 public hearings at which all residents and.

property owners who might be affected, were invited.

Thereafter, on April 28, 1976 the Community Board voted

29 to 3, to support the application of Associates for a

variance,

2 i ii i ae

6a

Appendiæ B.

On June 22, 1976, a publie hearing was held before the

Board which was adjourned 3 times for the purpose of

affording all interested parties opportunity to present any

evidence, testimony or exhibits in opposition to the appli-

cation. After an inspection by members of the Board of

the surrounding area, and following the public hearings,

the Board unanimously granted the application on the

grounds of practical difficulty and/or unnecessary hard-

ship. It further made each of the required findings under

Section 72-21 of the Zoning Resolution. On the basis of

the Board’s determination at a public session held Sept.

14, 1976, petitioner brought the present proceeding to

annul and set aside its determination.

It is fundamental in Zoning Law that the courts do

not make new or substitute judgments, but restrict them-

selves to ascertaining whether there has been illegality,

arbitrariness or abuse of discretion (Matter of Lemir

Realty Corp. v. Larkin). A presumption exists that the

Board’s decision is supported by substantial evidence

(Matter of First Nat] Bank v. Sheehan, 30 A. D. 2d

912). The important elements of Section 72-21 which

require that prior to granting a variance it must make

5 findings, which are (1) practical difficulties or un-

necessary hardship, (2) inability to obtain a reasonable

return, (3) the variance will not change the character of

the neighborhood, (4) that conditions involving hardship

were not self-created, (5) the proposed variance is the

minimum to afford relief.

The record shows that the unique physical conditions

of the zoning lot based on its irregular shape, the occu-

pancy of other buildings on the lot, its location in 4

separate zoning districts, all contributed to the elements

of hardship that would result from the denial of a vari-

ance. Of the 32,000 square feet involved in the parcel,

only 41 percent of the zoning lot, 13,000 square feet, was

available for construction. Evidence was offered that

7a

Appendix B.

if the variance were granted a small return of 4.6 per-

cent on a net cash investment of over $7 million was

realizable, and that if the variance were not granted, a

return under the requirements of the existing resolution

would be less than 1 percent. The subject of financial

estimates involved in construction was carefully exam-

ined by the Board on the basis of testimony on both sides,

and in that regard the court must yield to the demon-

strated expertise of the Board members. Similarly, in

the area of estimated income and the broad subject of

tax shelter benefits, the Board acted within its discretion

in using its expert judgment as to the customary cash

flow analysis, in evaluating a realistic rate of return for

Associates (Crossroads Recreation, Inc. v. Broz, 4 N. Y.

2d 44). Much testimony was given also on the general

subject as to whether the proposed development would be

detrimental to the neighborhood both with regard to room

space, light sufficiency, and ample parking space for auto-

mobiles. The record demonstrates that the applicant’s

position in that regard was amply supporied by the proof

and that no other conforming use was financially feasible

(Matter of Envoy Towers Co. v. Klein, 51 A. D. 2d 925).

Little need be said concerning the objection of the op-

ponents of a variance, that the hardship was self-created

since that subject was thoroughly examined by the Board.

The record contains ample evidence that Associates had

sought over a 4 year period to take reasonable measures

to conform to the existing resolution, but had run into

unforeseeable problems and difficulties.

On the record, therefore, it is clear not only that the

Zoning Board had the authority to grant this area vari-

ance, but that the same was “minimal’’ as required by

statute, was supported by substantial proof, and was in

no respect arbitrary and capricious (Matter of Craig v.

Zoning Board of Appeals, 50 App. Div. 887).

8a

Appendiæ B.

Turning to the contentions of the petitioner that the

Board did not follow its own procedural rules and thus

deprived petitioners of their constitutional rights, these

generally take the form of objections based on the receipt

of materials submitted by Associates which were not

verified, that the Board did not reply solely on sworn

testimony and that petitioners had no opportunity to

timely respond to various materials submitted by Asso-

ciates. It is further urged that there was a lack of

opportunity to cross-examine witnesses and to obtain

copies of documents upon which Associates relied.

Our courts have for a great many years accepted the

general principle that statements of witnesses before the

Board do not have to comply with the technical require-

ments applicable to court testimony. They need not be

under oath, and the Board may act without any wit-

nesses at all, because it is made up of men with special

qualifications of training and expérience (People ex rel.

Fordham Manor Reformed Church v. Walsh, 244 N. Y.

280; Matter of Von Kohorn v. Morrell, 9 N. V. 2d 27).

It appears from this record that the opponents of this

variance were heard at length, and presented extensive

materials to the Board in the course of several hearings

from June 22 to Aug. 20, 1976. No charge is made here

that the Board was in any way biased, or that it failed

in its responsibility to expressly provide for notice to all

interested parties with an opportunity to speak, be rep-

resented by counsel, and to submit oral or written evi-

dence in opposition to the varidnce. Nor was the failure

to conduct lengthy examinations a denial of their rights.

A cross-examination at this type of hearing is frequently

disruptive, and is uncommon at Board hearings (2 An-

derson, N. Y. Zoning Law and Practice 20.16).

In all, the Board’s rules provide adequate protection

for all interests affected by the issuance of zoning vari-

9a

Appendiæ B.

ances, and in this case it is clear from the record that the

Board adhered to its rules scrupulously. The court finds

on the entire record that the Board acted in full com-

pliance with applicable rules of law and its own Rules of

Procedures. Its determination will in all respects be

affirmed. The petition will be dismissed. Settle order.

Dated: February 3, 1977.

NarRax I. T. Herman,

J. 8. C.

10a

Appendix C, Order Court of Appeals, State of

New York.

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held at Court of Ap-

peals Hall in the City of Albany on the

nineteenth day of December A.D. 1977

Present, Hon. CHARLES D. Brerrei, Chief Judge, presiding.

+

- -

1 Mo. No. 1141

In the Matter of

the Application of 215 East 72nd Street Corpora-

tion, & ors., Appellants,

For a Judgment &e.

vs.

Joseph B. Klein, as Chairman, & ors., as Members

of the Board of Standards and Appeals of the

City of New York, et al.,

Respondents.

4

92

A motion for leave to appeal to the Court of Appeals in

the above cause having been heretofore made upon the

part of the appellants herein and papers having been sub-

mitted thereon and due deliberation thereupon had, it is

OrpERED, that the said motion be and the same hereby

is denied with twenty dollars costs and necessary reproduc-

tion disbursements.

JosepH W. BRLLACOSA

Joseph W. Bellacosa

Clerk of the Court

(Seal)