NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 11, 2010
RISA FISHER, ET AL., PETITIONERS-APPELLANTS,
THE NEW YORK CITY BOARD OF STANDARDS AND APPEALS, ET AL., RESPONDENTS-RESPONDENTS.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 24, 2008, which dismissed the petition brought pursuant to CPLR article 78 seeking to annul a resolution of respondent Board of Standards and Appeals (BSA), dated June 24, 2008, granting an amendment to a 1963 zoning variance to, inter alia, allow respondent College of St. Francis Xavier to merge its zoning lot with the adjacent lot owned by respondent Clothing Workers Center Incorporated, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Moskowitz, Acosta, Renwick, JJ
There was a rational basis for BSA's determination that Xavier's application to modify its variance sought only a minor modification in the previously approved variance, that the modification did not change any conditions of the 1963 variance pertinent to the building and side and rear yards authorized by the variance, and that no new non-compliance will be created as a result of the lot merger. Accordingly, BSA's decision to consider the variance as amended without conducting a new analysis pursuant to New York City Zoning Resolution § 72-21 (pertinent to applications for new variances) because the 1963 variance had been granted on findings that the requirements contained in section 72-71 had been satisfied, was not arbitrary or capricious (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 418-419 ; Matter of East 91st St. Neighbors to Preserve Landmarks v New York City Bd. Of Stds. & Appeals, 294 AD2d 126 ). Furthermore, because BSA's approval of the application was ministerial in nature, it was not an "action" requiring an environmental impact quality study pursuant to the State Environmental Quality Review Act and/or the City Environmental Quality Review (see ECL 8-0105 [ii]; 8-0109; Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322, 326 ; see also Matter of 220 CPS "Save Our Homes" Assn. v New York State Div. of Hous. & Community Renewal, 60 AD3d 593 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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