In this article 78 proceeding to review the determination of New York City Board of Standards and Appeals denying request to reopen and reconsider grant of variance to construct a six-story multiple dwelling, two questions are presented for our review. First, whether a civic or property owners' association has standing to contest the grant of the variance, and, second, whether the belated discovery of evidence which was at all times available may constitute such "substantial new evidence" as to make the board's refusal to reopen and reconsider its prior action arbitrary and capricious.
On July 20, 1971, the board, following a hearing at which Douglaston residents individually and through the Douglaston Civic Association, Inc., opposed the variance, granted the estate of Dave Simon a hardship variance, permitting it to construct a six-story, 67-unit apartment building in an area zoned R1-2, which essentially limited construction to single homes on 60-foot plots. In its presentation to the board, the estate had represented its "Cost of Land" as $121,878
Shortly after the time in which they could contest the grant of the variance had expired, but before any construction had begun, the petitioners discovered for the first time that eight years earlier, in a New York estate tax proceeding, this same parcel in its identical unimproved state had been valued by the
Considering first the standing issue, subdivision a of section 668e-1.0 of the New York City Administrative Code provides that "[a]ny person or persons, jointly or severally aggrieved by any decision of the board" may challenge that decision in an article 78 proceeding in the nature of certiorari.
Our courts have repeatedly held that for a person
We are troubled by the apparent readiness of our courts in zoning litigation to dispose of disputes over land use on questions of standing without reaching the merits, an attribute which is glaringly inconsistent with the broadening rules of standing in related fields. (See, e.g., National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416; Matter of Glen Cove Civ. Serv. Comm. v. Glen Cove NAACP, 34 A.D.2d 956; Matter of American Jewish Congress v. Carter, 19 Misc.2d 205, mod. on other grounds 10 A.D.2d 833, affd. 9 N.Y.2d 223; Ayer, Primitive Law of Standing in Land Use Disputes: Some Notes From a Dark Continent, 55 Iowa L. Rev. 344.) Troubled though we are over this inconsistency that has developed in our law, our concern is heightened because of the particular need in zoning cases for a broader rule of standing.
It should be readily apparent that a person desiring relaxation of zoning restrictions — such as a change from residential to business — has little to lose and much to gain if he can prevail. He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result. The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change. Thus, the neighboring property owners rarely fight as hard for zoning protection as the developer or speculator does for relaxation of zoning restrictions. Against this background of economic disparity, an individual property owner, who stands only to gain (or prevent the loss of) the maintenance of the status quo as regards the value of his homestead and his peace and quiet, cannot be expected, nor should he be required, to assume by himself the burden and expense of challenging the zoning change. Even if successful, the aggrieved individual will not be able to recoup his expenditures. By granting neighborhood and civic associations
This broader rule of standing is entirely consistent with the underlying purposes of our zoning laws. Our municipalities enact zoning ordinances in order to protect the public's health, welfare and safety. A challenge to a zoning variance focuses the court's attention on this public interest. To force a court to reject such a challenge on the grounds of standing when the group contesting the variance represents that segment of the public which stands to be most severely affected by it is, in our view, an ironic situation which should not be permitted to continue.
In view of these factors, we believe that an appropriate representative association should have standing to assert rights of the individual members of the association where such persons may be affected by a rezoning, variance or an exception determination of a zoning board.
In determining whether a particular organization should have such standing, the court should be satisfied that the organization before it is an appropriate one to act as the representative of the group whose rights it is asserting. Several of the factors
We conclude, on the record before us, that the association satisfies the criteria for standing. Its size and composition — over 1,000 owners and residents in the immediate vicinity of the area involved in the grant of the variance — establishes its ability to undertake an adversary position and to adequately represent the "aggrieved" neighborhood members of the organization. That the effect of the variance is within the zone of interests to be protected can hardly be questioned. Thus, the association qualifies as a bona fide representative of those residents and property owners whose property may be affected by the grant of the variance, and should have standing to challenge the determination of the zoning board.
We reach this result simply in recognition of the modern day fact of life that participation by neighborhood groups in land use decisions has grown from the exception to the rule. While often informal and disorganized, it is a practice that needs to be encouraged lest a neighborhood become "nickel-and-dimed" to death by gas stations, beauty parlors, taverns and the like. (Cf. A. L. I., Model Land Development Code, Tentative Draft No. 2 , § 2-307, Note, p. 72.)
Holding as we do, as a threshold proposition, that the Douglaston Civic Association is an "aggrieved person" and has standing, we, nevertheless, on the merits, affirm the decision below. Subdivision 4 of article IV of the Rules of Procedure of the Board of Standards and Appeals provides that "[n]o request for a re-hearing will be granted unless substantial new evidence is submitted". The rationale behind the rule was enunciated over a century ago: "There must be a point at which to stop. If it can be reviewed the next day, it can the next week,
We would merely add that in affirming the decision below we do not intend to imply our approval of the Appellate Division's statement that the board acted correctly "in apparently concluding that a projected return of income, for a parcel for which a variance is sought, may be based on present value, rather than its original cost." (43 A.D.2d 739, 740.) While present value most often will be the relevant basis from which the rate of return is to be calculated, it is important that the "present value" used be the value of parcel as presently zoned, and not the value that the parcel would have if the variance were granted. While the record does not speak to this point, we suspect that the $121,000 figure here represents the value the parcel would have if granted the variance. Neither do we think that Matter of Crossroads Recreation v. Broz (4 N.Y.2d 39) fairly supports that statement as suggested by the Appellate Division. Our intention in Crossroads was simply to reaffirm the rule that the proper inquiry is whether the presently permitted use can yield a reasonable return, even if not the most profitable return. (4 N Y 2d, at p. 46.) We would note further that the original cost becomes relevant where, despite the prohibition upon converting the land to another use, the land has nevertheless appreciated significantly to the extent that the owner may have suffered little or no hardship. (See Matter of Jayne Estates v. Raynor, 22 N.Y.2d 417, 421-422.)