IN THE MATTER OF JOHN A. WARD ET AL., APPELLANTS, v. ROGER BENNETT, &C., ET
AL., RESPONDENTS.
79 N.Y.2d 394, 592 N.E.2d 787, 583 N.Y.S.2d 179 (1992).
May 5, 1992
2 No. 59
Decided May 5, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Simon H. Rothkrug, for Appellants.
Lawrence A. Salvato, for Respondents.
BELLACOSA, J.:
The New York City Department of Buildings (DOB) denied the petitioner
Wards' application for a permit to build a single- family house in the
bed of a mapped, but unopened and undeveloped, Staten Island street.
After an unsuccessful appeal to the Board of Standards and Appeals
(Board), the Wards brought this article 78 proceeding alleging that
the Board acted arbitrarily and capriciously, and that denial of their
administrative appeal deprived them of the use of their property
without just compensation in violation of the Federal and State
Constitutions (US Const, 5th Amend, 14th Amend; NY Const, art 1, § 7).
Both courts below held that the Board had a sufficient basis for
denying the administrative appeal and that the Wards' confiscation
claim was premature due to their failure to pursue "demapping" under
197-c and § 197-d of the New York City Charter.
We agree that the Board's determination was not arbitrary and
capricious. However, we conclude that the Wards' confiscation claim is
ripe for judicial review. The independent demapping remedy available
to the Wards only from the City Council is not a bar to judicial
consideration of the constitutionality of the Board's final action as
it bears on the Wards' claim of an uncompensated confiscation of their
property. We therefore reinstate so much of the petition as alleged an
unconstitutional taking of property and remit to the Supreme Court for
further proceedings.
The property at issue is a vacant and unimproved lot located at 31
Dallas Street in Richmond County. The Wards took title to the property
in 1966 with knowledge of and expressly subject to an extension
through the property of a "paper" street named North Burgher Avenue.
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Simon H. Rothkrug, for Appellants.
The New York City Department of Buildings (DOB) denied the petitioner Wards' application for
Both courts below held that the Board had a sufficient basis for denying the administrative
We agree that the Board's determination was not arbitrary and capricious.
we conclude that the Wards' confiscation claim is ripe for judicial review.
We therefore reinstate so much of the petition as alleged an unconstitutional taking of
The Wards took title to the property in 1966 with knowledge of and expressly subject to an
Supreme Court, Richmond County, denied the application and dismissed the petition without
The Appellate Division affirmed, characterizing the prematurity problem as a failure to
However, when a property owner can establish that the land within such mapped street is not
The courts may set aside a zoning board determination only where the record reveals
In holding that the Wards had not "exhausted their administrative remedies", they blurred the
Ripeness pertains to the administrative action which produces the alleged harm to plaintiff;
The focus of the "exhaustion" requirement, on the other hand, is not on the challenged action
Thus, this is not a case like Church of St. Paul & St. Andrew v Barwick (67 NY2d 510, supra),
Moreover, the ripeness doctrine does not impose a threshold barrier requiring pursuit of all
An aggrieved property owner could be effectively blocked from seeking meaningful judicial
Chief Judge Wachtler and Judges Kaye, Titone, Hancock and Yesawich concur.
|
