NY Appellate Court Upholds Board of Standards and Appeals Determination Finding it Was Based on Substantial Evidence

This post was authored by Jennifer Champey, Jacob D. Fuchsberg Touro Law Center

This case, decided by the Appellate Division, First Department of New York, on appeal addresses a matter pertaining to the northern section of a side lot in New York City. The court discussed the application of Zoning Resolutions and found that the Board of Standards and Appeals (BSA) was reasonable in its determination but does urge that inconsistencies in the Zoning Resolution be addressed.

The petitioner claims that the lot in question was below curb level and therefore in violation of New York City Zoning Resolution § 33-293. This section requires, that in a commercial district near a rear lot line in a residential district, “an open area at curb level” be apparent. The BSA, however, asserted that the side yard of this lot was in compliance with ZR §33-22. The later section is less strict and states that a yard which is higher than curb level should not have its “natural grade level disturbed” solely to ensure compliance with the section. Due to this language, the resolution can hardly be deemed a requirement. The court reasoned that this was substantial evidence in showing that the BSA’s finding was rational an “adequate to support a conclusion of ultimate fact.”

Rachmanov v Board of Standards and Appeals of the City of New York, 2022 WL 16984198 (NYAD 1 Dept 11/17/2022)