October 26, 2017
Margery Perlmutter, Chair NYC Board of Standards and Appeals 250 Broadway, 29th Floor New York, New York 10007
Re: Building Permit No. 122887224-01-NB 200 Amsterdam Avenue (Block 1158, Lot 133) Borough of Manhattan
Dear Chair Perlmutter:
Submitted herewith, on behalf of the Committee for Environmentally Sound Development (the “Committee”), a not for profit community organization, is an application pursuant to Section 666.7(a) of the New York City Charter and Section 1-06 of the Board of Standards and Appeals (the “Board”) Rules of Practice and Procedure, to request that the Board revoke building permit No. 122887224-01-NB (the “Permit”), issued by the New York City Department of Buildings (“DOB”) on September 27, 2017, for a new building to be constructed at 200 Amsterdam Avenue (Block 1158, Lot 133) (the “Development Site”) in the Lincoln Square neighborhood in the Borough of Manhattan. Revocation of the Permit is requested on the bases that (1) the zoning lot of which the Development Site is a part was improperly formed in noncompliance with the definition of a “zoning lot” in Section 12-10 of the Zoning Resolution and (2) the open space on the zoning lot is in noncompliance with the definitions of “open space” and “accessory use” in Section 12-10 of the Zoning Resolution and the permitted obstructions requirements of Sections 23-12, 23-44, 25-52 and 25-64 of the Zoning Resolution such that the zoning lot does not meet the requirements for open space set forth in Section 23-151 of the Zoning Resolution.
Included in this submission are the following items: . Appeal Application Form . Statement of Facts . Affidavit of Ownership . Department of Buildings Final Determination (Permit No. 122887224-01-NB) . Permit Information . Applicable Zoning Resolution Sections . Relevant Case Law . Zoning Map . Tax Map . Plans (Building Permit Zoning Diagram Form ZD1) . Photographs . Zoning Challenge
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Also submitted herewith is a check in the amount of $2,460.00 in payment of the BSA application filing fee, pursuant to Section 3.b(2) of the BSA Schedule of Filing Fees for an “all other residences” building permit.
Please note that the Permit which is the subject of this appeal was issued by DOB on September 27, 2017. Barring issuance of an injunction, it is anticipated that construction will proceed as rapidly as possible in a “race to the finish line” with this appeal. Accordingly, time is very much of the essence and the Committee and its numerous supporters respectfully requests that the Board’s review of this application be expedited to the greatest extent permissible under the Board’s Rules of Procedure.
Please do not hesitate to contact me if you or BSA staff have any questions or require any additional information. Thank you for your prompt attention to this matter.
Very truly yours,
Frank E. Chaney, Esq.
Enclosures cc: Committee for Environmentally Sound Development Amsterdam Avenue Redevelopment Associates LLC Rick D. Chandler, Commissioner, DOB Mona Sehgal, General Counsel, DOB Anita Laremont, Counsel, Department of City Planning Gale Brewer, Manhattan Borough President Helen Rosenthal, New York City Council Member Scott Stringer, New York City Comptroller Brad Hoylman, New York State Senator Linda B. Rosenthal, New York State Assembly Member Richard N. Gottfried, New York State Assembly Member
RE\18900\0001\2277143v1 ° 250 Broadway, 29th Floor APPEALS (A) CALENDAR New York, NY 10007 Application Form 212-386-0009 -Phone Board of Standards 646-500-6271 -Fax and Appeals www.nyc.gov/bsa BSA APPLICATION NO.
Section A Committee for Environmentally Sound Development Amsterdam Avenue Redevelopment Associates LLC Applicant/ ~~ Owner P.O. Box 20464, Columbus Circle Station c/o SJP Residential Properties, 11 Times Square ~~~ : New York NY 10023 New York NY 10036 ~ ~ ~~ ~~ 212 ~ 877-4394
, ~ ~~ [email protected] , ~ ~~
Section B 200 Amsterdam Avenue 10023
Site Data West side of Amsterdam Avenue between W. 66th Street and W. 70th Street
1158 133 Manhattan 7 NA
Helen Rosenthal R8/C2-5 8c ~.
Section C Q Variance to Building, MDL or Other Code Q✓ Dept. of Building or other Agency Appeals Application Q Certificate of Occupancy Modification Q Waivers to GCL 35/36 Q Vested Rights 7 122887224-0'!-N B Type Date of Final Determination 9~27~2~ ~ Acting on Application No.
❑ Section D Legalization ❑Yes Q✓ No In part Appeal of issuance by DOB of building permits for a new building at 200 Amsterdam Avenue on the basis that the Description proposed zoning lot does not comply with the definition of a "zoning lot" in Zoning Resolution Section 12-10 and the open space does not comply with the definition of "open space" in Zoning Resolution Section 12-10.
Section E if"YES" to any of the below questions, please explain in the STATEMENT OF FACTS YES NO 7. Has the premises been the subject of any previous BSA applicafion(s)...... BSA History and Related If yes, Prior BSA No Actions 2. Are there any applications concerning the premises pending before any other government agency?...... Q Q✓ 3. Is the property the subject of any court action?......
Section G 1 HEREBY AFFIRM THAT BASED ON INFORMATION AND BELIEF, THE ABOVE STATEMENTS AND THE STATEMENTS CONTAINED /N THE PAPERS ARE TRUE. Signature -~ s /' - SWORN TO ME THIS ~;~ DAY OF C~~~`d~r~2p
.,~ ~ ~ ----~~C~AM R. Of Counsel, Rosenberg & Estis, P.C. SANDERS Frank E. Chaney, ESq. ~% ~1~pta Public State Y 0. 3~3}-.~~~~ ~~~~ ~~~ ~ TAFFY PUBLIC ^___~~r~ ..~2SA6a25994 .. ~ - - ~.ommjsston expires Jt~r~e-~-~$~;~/ ~ ~~~ ~'/~
200 Amsterdam Avenue Manhattan Block 1158, Lot 133
STATEMENT OF FACTS
I. Introduction On behalf of the Committee for Environmentally Sound Development (the “Committee”), Rosenberg & Estis, P.C. submits this application pursuant to Section 666.7(a) of the New York City Charter and Section 1-06 of the Board of Standards and Appeals (the “Board” or “BSA”) Rules of Practice and Procedure, to request that the Board revoke building permit No. 122887224- 01-NB (the “Permit”), issued by the New York City Department of Buildings (“DOB”) on September 27, 2017, for a new building (the “New Building”) to be constructed at 200 Amsterdam Avenue (Block 1158, Lot 133) (the “Development Site”) in the Lincoln Square neighborhood in the Borough of Manhattan. The Permit is not a validly issued building permit because the purported “zoning lot” of which the Development Site is purported to be a part, does not comply with the requirements of the definition of a zoning lot in Zoning Resolution Section 12-10. Accordingly, the Permit should – in fact, must be – revoked.
II. Background
A Declaration of Zoning Lot Subdivision and Restrictions, describing itself as a “Declaration for Subdivision creating Tower and Gerrymander Parcel,” dated April 10, 1987, and recorded in the Office of the City Register, New York County (the “City Register’s Office”), on April 16, 1987, at Reel 1217 Page 1402 (the “1987 Declaration and Subdivision”): (1) declared all of the lots then known as Lots 1, 30, 70, 80 and 90 in Block 1158 to be a single zoning lot, and then (2) subdivided the zoning lot into two zoning lots, consisting of a “Vacant Parcel” zoning lot (presumably the “Gerrymander” parcel) consisting of vacant land made up of parts of Lots 1, 30, 70 and 80, and a “Towers Parcel” zoning lot consisting of the other parts of Lots 1, 30, 70 and 80 and all of Lot 90 (the “Towers Zoning Lot”), and containing four existing 29-story high rise apartment buildings and one existing 42-story apartment building (collectively, “Lincoln Towers”).
Concurrently, pursuant to a Declaration of Zoning Lot Restrictions, also dated April 10, 1987, and recorded in the City Register’s Office on April 16, 1987, at Reel 1217 Page 1438 (as amended by an Amendment to Declaration of Zoning Lot Restrictions, dated May 26, 1987, and recorded in the City Register’s Office on June 3, 1987, at Reel 1239 Page 1366 (the “1987
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Gerrymander Declaration”), the Vacant Parcel zoning lot was merged with Lots 10, 12 and 65 to create an enlarged zoning lot (the “Gerrymandered Zoning Lot”).
Also concurrently, two Zoning Lot Development Agreements were executed and recorded, one for the Towers Zoning Lot (the “Towers ZLDA”) and one for the Gerrymandered Zoning Lot (the “1987 Gerrymander ZLDA”).1 Both ZLDAs were dated April 10, 1987 and recorded in the City Register’s Office on April 16, 1987 – the Towers ZLDA at Reel 1221 Page 1970 and the Gerrymander 1987 ZLDA at Reel 1221 Page 1929.
For the Gerrymandered Zoning Lot, a Zoning Lot Description and Ownership Statement, dated May 26, 1987, was recorded in the City Register’s Office on June 3, 1987, at Reel 1239 Page 1343 (the “1987 Gerrymander Description”).
In the 1987 Gerrymander Declaration, 1987 Gerrymander ZLDA and 1987 Gerrymander Description, the Gerrymandered Zoning Lot is described as being “for Gerrymander & Commercials” parcels. In the 1987 Gerrymander ZLDA, the Gerrymandered Zoning Lot is described as consisting of two parcels: the “Developers Lands” and the “Vacant Zoning Lot.” As shown on the zoning lot diagram of the 1987 Gerrymander Description, attached hereto as Attachment A, the Developer’s Lands consisted of Lots 10 and 12,2 located on the Amsterdam Avenue side of the block, and Lot 65, located on the West End Avenue side of the block, and the “Vacant Zoning Lot” consisted of parts of Tax Lots 1, 30, 70 and 80 that, as shown on Attachment A, snake and meander across the block.
In 2007, pursuant to a Declaration of Zoning Lot Restrictions, dated August 31, 2007, and recorded in the City Register's Office on December 12, 2007, at CRFN 2007000609689, the Gerrymandered Zoning Lot was enlarged to add Lots 133 and 1343 (as well as Lot 18, which had been reapportioned from Lot 12). In conjunction therewith, a Supplemental Zoning Lot Development Agreement for the enlarged zoning lot, dated August 31, 2007, was recorded in the City Register's Office on December 12, 2007, at CRFN 2007000609688.
In 2015, pursuant to a Declaration With Respect to Subdivision of Zoning Lot, dated June
1 While the 1987 Gerrymander ZLDA states that Lots 1, 30, 70, 80 and 90 “heretofore” constituted a single zoning lot, which it defined as the “Old Zoning Lot,” because the 1987 Declaration and Subdivision declaring them a single zoning lot (and simultaneously subdividing it) was likely recorded only minutes before the 1987 Gerrymander ZDLA, “heretofore” and “Old” are obviously used in a relative sense. 2 On or about 2007, Tax Lot 12 was subdivided by tax lot reapportionment into Tax Lots 12 and 18. 3 On September 9, 2015, Tax Lots 133 and 134 were combined by tax lot reapportionment and assigned Tax Lot number 133. On March 31, 2016, Tax Lot 133 was subdivided by tax lot reapportionment to create Tax Lot 9133, an “air rights” parcel above Tax Lot 133 (the fee parcel).
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11, 2015, and recorded in the City Register's Office on June 18, 2015 at CRFN 2015000209093, the Gerrymandered Zoning Lot was subdivided to make Lots 10, 12, 18 and parts of former lots 1 (now 1001-1007) and 30 (now 1401-1405) one zoning lot, and Lots 133, 134, 65 (now 1501-1672) and the gerrymandered portion of the Gerrymandered Zoning Lot (consisting of parts of former Lots 1 (now 1001-1007), 30 (now 1401-1405), 70 (now 1101-1107) and 80 (now 1201-1208)) a second zoning lot (as subdivided, the "Gerrymandered Zoning Lot"). Separate Zoning Lot Description and Ownership Statements were recorded for each of the subdivided zoning lots. The zoning lot diagram from the Zoning Lot Description for the Gerrymandered Zoning Lot is attached hereto as Attachment B, showing the Gerrymandered Zoning Lot as it currently exists.
III. Procedural History – DOB Job No. 122887224
Applications for building permits for the New Building were submitted to DOB on September 27, 2016. The permit application was disapproval by the DOB plan examiner on October 17, 2016. On March 29, 2017, a zoning diagram (the “Zoning Diagram”) was submitted to DOB. The permit application was approved by DOB on May 9, 2017. Pursuant to DOB’s Zoning Challenge procedure, once a Zoning Diagram is approved, any member of the public may, within 45 days, challenge DOB’s approval. The Committee submitted a Zoning Challenge on May 15, 2017, a copy of which is submitted with this application. In response, DOB commenced an audit of the permit application. On July 11, 2017, DOB issued a ZRD1 Response Form (attached hereto as Attachment C), stating that in response to the claim made in the Zoning Challenge “that the open space for the New Building does not qualify as Open Space as defined in the Zoning Resolution… the Department has issued a notice of objections and an intent to revoke to verify that the zoning lot was properly formed.” On September 27, 2017, DOB issued the Permit.
As set forth on the DOB web site,4 after the DOB Borough Commissioner has reviewed a challenge and rendered a decision, “All decisions will be posted online.” However, when the link for “Challenge Results” on the Application Details page for Job No. 122887224 is clicked, the Challenge Results page states, “No Scanned Challenge Results Found For This Job.” Printouts of the Challenge Results and Challenge Period Status pages are attached hereto as Attachment D.
IV. Arguments
A. The Gerrymandered Zoning Lot is Improperly Formed
4 See http://www1.nyc.gov/site/buildings/homeowner/challenges.page
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The first question at issue is a simple one: was the Gerrymandered Zoning Lot properly formed in compliance with the definition of a “zoning lot” set forth in Section 12-10 of the Zoning Resolution? For the following reasons, we submit that the answer is no, it does not, and was therefore improperly formed, for which reason the Permit should be revoked.
A “zoning lot” is defined in Section 12-10 of the Zoning Resolution as being one of four things:
“(a) a lot of record existing on December 15, 1961 or any applicable subsequent amendment thereto;
“(b) a tract of land, either unsubdivided or consisting of two or more contiguous lots of record, located within a single block, which, on December 15, 1961 or any applicable subsequent amendment thereto, was in single ownership;
“(c) a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block, which at the time of filing for a building permit (or, if no building permit is required, at the time of the filing for a certificate of occupancy) is under single fee ownership and with respect to which each party having any interest therein is a party in interest (as defined herein); or
“(d) a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block, which at the time of filing for a building permit (or, if no building permit is required, at the time of filing for a certificate of occupancy) is declared to be a tract of land to be treated as one zoning lot for the purpose of this Resolution. Such declaration shall be made in one written Declaration of Restrictions covering all of such tract of land or in separate written Declarations of Restrictions covering parts of such tract of land and which in the aggregate cover the entire tract of land comprising the zoning lot… Each Declaration shall be executed by each party in interest… [and] shall be recorded in the Conveyances Section of the Office of the City Register.”
In addition, the definition provides that “A zoning lot, therefore, may or may not coincide with a lot as shown on the official tax map of the City of New York.”
This definition of a zoning lot, including the provisions of paragraph (d) for declaring two or more lots of record a single zoning lot were created in 1977 by zoning text amendment application N 760226 ZRY, approved by the City Planning Commission (“CPC”) on July 13, 1977
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(Calendar No. 27) and by the Board of Estimate on August 18, 1977. Prior to 1977, two or more adjacent parcels could be treated as a single zoning lot only if they were in single fee ownership or were “merged” together by means of a lease having a term of 75 years or more.
As described in the CPC report, there were “serious problems” with such mergers by lease. Because they were private agreements, they could be terminated at any time by breach or bankruptcy. In addition, such lease agreements allowed unused development rights to be shifted from one parcel to another without notice to all affected parties in interest.
As stated in the CPC report, the new requirement of paragraph (d) for the execution and recording of a Declaration of Restrictions by all parties in interest would “prevent the possibility of overbuilding,” “eliminate the current problem of not being able to determine from the public record whether a building has been built in part on the basis of development rights applicable to land on which the building is not physically located,” “protect[] the City’s interest in avoiding overbuilding, and “provide[] private parties with a certainty based on which they can protect their own interests.”
The definition created in 1977 and continuously in effect until today, requires that the lots to be merged by declaration into a single zoning lot must be “lots of record.” Neither “lot,” “of record” or “lot of record” is defined in the Zoning Resolution. The Gerrymandered Zoning Lot was created, enlarged and subdivided apparently in the belief that a “lot of record” can be anything an owner declares it to be. We beg to differ. While a zoning lot may or may not “coincide” with “a lot as shown on the official tax map of the City of New York” – i.e., a single tax lot – it must nevertheless be comprised of tax lots “as shown on the official [City] tax map.”
A zoning lot that coincides with a tax lot shown on the tax map is a zoning lot under paragraph (a) of the Section 12-10 definition. Every individual tax lot under separate fee ownership is, therefore, by definition, a zoning lot. In such case, “lot of record” means, as stated in the definition “a lot as shown on the official tax map.” Furthermore, lots shown on the tax map are entire tax lots, the dimensions of which generally correspond with a deed of ownership recorded in the City Register’s Office. Parts of tax lots are not shown on the tax map.
Logically, then, for paragraphs (b), (c) and (d) of the Section 12-10 definition where a zoning lot may consist of two or more lots, “of record” would have the same meaning as for paragraph (a): tax lots shown on the official tax map. It is illogical that “lot of record” would mean one thing in paragraph (a) but mean something completely different in the other three paragraphs.
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Support for such reading of the text is found in the Zoning Resolution itself. As examples: Section 23-96 regarding requirements for Inclusionary Housing bonus generating sites makes repeated reference to “tax lots,” including: “the regulatory agreement shall be recorded against all tax lots comprising the portion of the zoning lot within which the generating site is located” (emphasis added). Section 25-252 regarding affordable independent residences for seniors, similarly provides that “Such requirement shall be reflected in a notice of restrictions recorded against all tax lots comprising such zoning lot” (emphasis added).
Section 74-79 regarding transfers of development rights from individually designated landmarks to adjacent lots, defines an “adjacent” lot as meaning, in addition to a lot that is contiguous to or across a street and opposite the lot containing the landmark building, in certain zoning districts, “lots that except for the intervention of streets or street intersections, form a series [emphasis added] extending to the lot occupied by the landmark building or other structure. All such lots shall be in the same ownership (fee ownership or ownership as defined under zoning lot in Section 12-10).”
Under this provision, development rights may be transferred to a property across the street and down the block from the lot containing the landmark building, with the operative requirements being that (a) the lots “form a series” and (b) the series of lots meet one of the definitions of a zoning lot either by virtue of being in single fee ownership or by having been declared a zoning lot by all parties in interest. In other words, to transfer development rights from Lot A to Lot D, (1) Lot B must be across the street and opposite Lot A and (2) Lots B, C and D must constitute a zoning lot.
Logically, where, as here, it is proposed to transfer development rights (whether floor area or open space) from one end or side of a block to the other by zoning lot merger, the intervening lots must likewise “form a series.” However, the Gerrymandered Zoning Lot does not consist of a series of lots, but of disparate, isolated bits and pieces of lots strung together with narrow threads made up of other bits and pieces of lots. While the past and present parties in interest in the Gerrymandered Zoning Lot have evidently asserted that the parts of the tax lots are, in fact, “lots of record” such interpretation is not only contrary to the plain meaning of the text,5 it defies logic and common sense.
5 See, Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 583 (1998) (“the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” See also, Tompkins v Hunter, 149 N.Y. 117, 122-123 (1896) (“In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed”).
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First of all, most obviously, portions of the various lots that make up the gerrymandered portion of the Gerrymandered Zoning Lot are not “lots.” As explicitly acknowledged in the 1987 Gerrymander Declaration, the gerrymandered portion of the Gerrymandered Zoning Lot consists only of “parts” of the tax lots.
Secondly, the parts of the tax lots were not “of record” prior to creation of the Gerrymandered Zoning Lot. For something to be “of record,” it must be recorded. In the City of New York, lots are “of record” for having been recorded in one of two places: tax lots are “of record” by virtue of being shown on the “official tax map of the City of New York;” and zoning lots are “of record” by virtue of being recorded in the “Conveyances Section of the Office of the City Register.”
A zoning lot cannot be “of record” until it has been declared such by the recording of a Declaration of Restrictions in the Office of the City Register. For two or more lots to be declared a zoning lot, however, they must meet the conditions set forth in paragraph (d) of the Section 12- 10 definition: they must be contiguous for a minimum of 10 linear feet and – critically – they must be “lots of record.” If they are not both of these things, they do not qualify and any Declaration that declares them to be a zoning lot is therefore invalid.
Upon recording of the 1987 Gerrymander Declaration, the gerrymandered portion of the Gerrymandered Zoning Lot was a zoning lot of record and, at least arguably, the parts of the tax lots were likewise of record. But it is inarguable that before the 1987 Gerrymander Declaration was recorded, neither the Gerrymandered Zoning Lot nor the parts of the tax lots comprising it were “lots of record.” To assert that the result of the zoning lot merger satisfies the required precondition for such merger plainly set forth in the text is an exercise in illogical circular logic. A thing can’t be both cause and effect.
In any event, because a “lot of record” is an entire tax lot as shown on the tax map, and the parts of Tax Lots 1, 30, 70, 80 and 90 that were declared to be a part of the Gerrymandered Zoning Lot were not shown on the tax map as entire tax lots with lot dimensions generally corresponding to the metes and bounds description on a deed of ownership, they were not lots of record and therefore, the Gerrymandered Zoning Lot was not properly formed.
In support of their interpretation, the past and present parties in interest in the Gerrymandered Zoning Lot – and the Department of Buildings, which approved it – may be expected to cite to the “Minkin Memo.”
The Minkin Memo is a Departmental Memorandum issued by DOB Acting Commissioner Irving Minkin on May 18, 1978, subsequent to the 1977 text amendment creating the current definition of a zoning lot.
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The Memo states, in part, that “a single zoning lot… may consist of one or more tax lots or parts of tax lots.” However, that is the only reference to “parts” of tax lots in the Memo itself or in any of the required zoning exhibits established by and attached to the Memo. In fact, the rest of the Memo and its attached exhibits belie such reference.
. Exhibits I and II (Certification of Parties in Interest) require that the “Tax Lot Number(s)” be listed and that the zoning lot diagram “Show Block and Lot numbers and dimensions of each lot.”
. Exhibit III (Zoning Lot Description and Ownership Statement) requires the applicant for a building permit state under oath that “the zoning lot to which the afore-mentioned permit or permits pertain are shown on the Tax Map of the City of New York, County of New York, as Lots ______in Block _____ as shown on the Tax Map of the City of New York ______County…” (emphasis added). Exhibit III also requires that the zoning lot diagram “Show Block and Lot numbers and dimensions of each lot.”
. Exhibit IV (Declaration of Zoning Lot Restrictions) requires all parties in interest to state under oath that “the land known as Tax Lot(s) _____, in Block _____ on the Tax Map of the City of New York… is to be treated as one zoning lot...” (emphasis added).
. Exhibit V (Waiver of Declaration of Zoning Restrictions) requires a party in interest waiving its right to sign the Declaration of Zoning Lot Restrictions to state under oath that “the land known as Tax Lot(s) ____, ____, ____ in Block ____ on the Tax Map of the City of New York… is to be treated as one zoning lot…” (emphasis added).
To rely on this one, passing reference to parts of tax lots is to ignore the larger context of the Memo and its attached exhibits. If it was truly the intention of the Memo to allow zoning lots to consist only of “parts” of tax lots, how does one explain the use of the qualifying phrase “as shown on the Tax Map of the City of New York” in Exhibit III and “on the Tax Map of the City of New York” in Exhibit IV and V, and the references to “Tax Lot Number(s) and “Tax Lot(s) in all of the Exhibits?
Even if we were to set aside these obvious inconsistencies, the Minkin Memo is flawed because, for all the reasons argued above, under a reasonable reading of the Zoning Resolution text, a zoning lot cannot consist of parts of a tax lots because parts of tax lots are not shown on the tax map and therefore cannot meet the definitional requirement of being “of record.”
It is well-established that statutes may not be interpreted so as to “broaden the scope and application” of the statute. Bender v. Jamaica Hosp., 40 N.Y.2d 560, 562 (1976). See also, Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 394 (1995) (“new language cannot be
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imported into a statute to give it a meaning not otherwise found therein”) and Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 104 (1997) (where “BSA has (sometimes) grafted onto the language of the current Zoning Resolution an addendum of its own… we have declined to uphold such an interpretation”).
The phrase “parts of tax lots” not only does not appear in the text of the Zoning Resolution Section 12-10, it does not appear anywhere in the Zoning Resolution. If it had been the intention of the Department of City Planning to allow zoning lots to be created out of parts of tax lots, when drafting the text, they would have inserted such phrase wherever necessary or applicable. There are examples of a word or phrase appearing in one section of the Zoning Resolution but not in another, in which cases a genuine question as to interpretation may arise, but where a phrase does not appear anywhere in any section of the entire 1,500 pages of text, it cannot be “imported into” the text by interpretation.
Furthermore, the argument that a zoning lot may consist of only parts of tax lots is belied by the fact that the Gerrymandered Zoning Lot is not just exceedingly rare, it may be sui generis. According to a survey done by New York University’s Furman Center, issued in 2013, in the eight years between 2003 and 2011 alone, there were 385 zoning lot mergers. 6 The number of zoning lot mergers would obviously be higher – significantly so – if all the zoning lot mergers before 2003 and after 2011 were included. The Gerrymandered Zoning Lot is the only one that we have been able to identify that has purported to create a zoning lot out of disparate bits and pieces of multiple tax lots spread out over almost an entire city block. If it is, in fact, one of a kind, it represents a tiny fraction of a percent of the 385 zoning lot mergers surveyed by the Furman Center, and an even tinier fraction of all zoning lot mergers since 1977 to the present.
This fact is a clear indication that the broadly understood meaning of the Zoning Resolution text is that “lot of record” means a tax lot as shown on the tax map – the entire tax lot and not a part of it – and that a zoning lot must therefore consist of entire tax lots as shown on the tax map that “form a series” of tax lots from the “air rights” lot to the development lot. The Furman Center report’s illustration of a merged zoning lot (Figure 1, below) shows exactly that: a zoning lot consisting of a series of entire tax lots.
Such a reading of the text is further supported by a survey and report on development rights transfers issued by the Department of City Planning in 2015, which describes zoning lot mergers
6 Buying Sky: The Market for Transferable Development Rights, Furman Center for Real Estate and Urban Policy, New York University, October 2013 (http://furmancenter.org/research/publication/buying-sky-the-market-for- transferable-development-rights-in-new-york-city)
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as combining “contiguous tax lots,” noting that tax lots “reflect historic ownership patterns.”7 Recall that as stated in the CPC report for the 1977 text amendment that created the current definition of a zoning lot, one of the problems with merging lots by long-term lease was that such mergers did not always allow affected parties to know or be aware of how such mergers affected their property rights. The purpose of the new definition was to provide certainty to parties having a property interest in a zoning lot, thereby enabling them to protect their own interests.
Figure 1: Example Merged Zoning Lot
Source: Buying Sky, NYU Furman Center
Finally, the Zoning Handbook, the widely used “plain English” translation and summary of the Zoning Resolution, which is “intended to make zoning more accessible to all,” gives the definition of a zoning lot as “a tract of land comprising a single tax lot or two or more adjacent tax lots within a block” [emphasis added].8 This is as clear an indication as could be found that it is the understanding and intent of the Department of City Planning itself that “lot of record” means a lot “as shown on the official tax map of the City of New York” – in other words, in plain English, a tax lot. This is critical and cannot be emphasized enough. Therefore, to repeat: in explaining in
7 A Survey of Transferable Development Rights Mechanisms in New York City, New York City Department of City Planning, February 26, 2015, p. 5-6 (http://www1.nyc.gov/assets/planning/download/pdf/plans- studies/transferable-development-rights/research.pdf) 8 Zoning Handbook, Department of City Planning, New York, 2011, p. 149.
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plain English what the Zoning Resolution definition of a zoning lot means by “lot of record,” City Planning clearly and unequivocally states that it means a tax lot. Period. Full stop. Not, “a tax lot or a part of a tax lot.” The entire tax lot. Certainly not, as with the Gerrymandered Zoning Lot, a piece cut off of a corner or notched out of the side, or long, narrow strips sliced off the back or side of a tax lot.
Taken to its extreme, the interpretation of the zoning text that a zoning lot may consist of parts of tax lots, has resulted in the Gerrymandered Zoning Lot. How such a zoning lot affects the property rights of the parties in interest was perhaps not so uncertain when there were only two or three owners and their respective lenders. Now, however, five of the Gerrymandered Zoning Lot’s tax lots have been declared condominiums so they are now comprised of nearly 200 individual condominium tax lots, each owned by a party or parties having a real property interest in the various bits and pieces of their condominium’s land which have been subdivided off and given over to the Gerrymandered Zoning Lot.
Given that the Gerrymandered Zoning Lot has been subdivided, enlarged and then subdivided again and that there are now, as shown on the table attached hereto as Attachment E, a dizzying collection of more than two dozen Declarations, Zoning Lot Descriptions, Certifications, ZLDAs, supplemental ZLDAs, amendments, second amendments, terminations, easements and covenants, it should not surprise anyone that purchasers of units in these five buildings would have a difficult if not impossible time trying to understand what the implications of all this are with regard to their individual rights. This interpretation has recreated the very problem of uncertainty as to a party’s property rights that the 1977 text amendments were intended to address.
B. The Open Space Does Not Comply With the Zoning Definition
The second question at issue is likewise straightforward: does the required open space provided on the Gerrymandered Zoning Lot for the New Building comply with the definition of “open space” set forth in Section 12-10 of the Zoning Resolution. Again, we submit that the answer is no, it does not, and for that reason, separate and apart from the question of the validity of the zoning lot, the Permit should be revoked.
“Open space” is defined in Section 12-10 of the Zoning Resolution as:
“that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot.”
The key phrase here is “accessible to and usable by.” As shown by the figure included in the Zoning Challenge (see Figure 2, below) portions of the Gerrymandered Zoning Lot’s open
11 RE\18900\0001\2271853v2 200 Amsterdam Avenue Page 12
space are occupied by parking lots and driveways providing accessory residential parking for the dwelling units in the Lincoln Towers buildings located on the Towers Zoning Lot.
Figure 2: Zoning Challenge Open Space Diagram
The parking lots and driveways were all developed in conjunction with and for the Lincoln Towers buildings, prior to 1987 when the Gerrymandered and Towers Zoning Lots were created. None of the ZLDAs, Supplemental ZLDAs, ZLDA Amendments, Declarations or Covenants allocate any of the parking spaces to the occupants of buildings located on the Gerrymandered Zoning Lot in any of its configurations. The 200 West End Avenue building on the formerly Lot 65 portion of the Gerrymandered Zoning Lot has its own below grade parking facility, and according to the Zoning Diagram, no accessory parking spaces are being provided for the New Building. Therefore, the parking lots and driveways, including the portions located on the
12 RE\18900\0001\2271853v2 200 Amsterdam Avenue Page 13
Gerrymandered Zoning Lot, may be presumed to provide accessory parking for the occupants of the Lincoln Towers buildings.
Because the parking spaces are accessory to and used by persons occupying dwelling units in the Lincoln Towers buildings, they cannot also be used by persons occupying dwelling units in the New Building. It is arguable whether they are even “accessible to” occupants of the New Building’s dwelling units.
Based on the information shown on the Zoning Diagram, the Gerrymandered Zoning Lot contains 87,076 sf of open space (110,794 sf of lot area minus 23,718 sf of lot coverage). The Zoning Challenge calculated the area occupied by such driveways and parking lots as being 33,983 sf. This area should be subtracted from the Gerrymandered Zoning Lot’s open space not only because it is not “accessible to and usable by” persons occupying dwelling units in the New Building (and in any event, according to the Zoning Diagram, no accessory parking is provided for the New Building), but also because the parking spaces are not permitted open space obstructions on the Gerrymandered Zoning Lot. 9
Although pursuant to Zoning Resolution Sections 23-12 and 25-64, driveways and open accessory off-street parking spaces are permitted obstructions in required open space, provided they do not occupy more than 50% of the open space, pursuant to the definition of “accessory use” in Zoning Resolution Section 12-10, accessory uses – including accessory parking” – must be “conducted on the same zoning lot as the principal use to which it is related.” An exception is accessory parking, which, pursuant to Zoning Resolution Section 25-52, may be located on a different zoning lot not located in a residence district or in a joint facility serving two or more buildings, provided such joint facility is not in an R1 or R2 zoning district and the facility is on the same zoning lot as at least one of the buildings to which it is accessory.
However, because, the portions of the driveways and parking lots located on the Gerrymandered Zoning Lot are accessory to the Lincoln Towers buildings on the Towers Zoning Lot, they may only be located on the Gerrymandered Zoning Lot if the Gerrymandered Zoning Lot were not in a residence district or such portions were to be considered a “joint facility” for either or both the 200 West End Avenue building or the New Building. But the portions of the driveways and parking lots located in the Gerrymandered Zoning Lot are within a residence district
9 The entire required rear yard of the interior lot portion of the Gerrymandered Zoning Lot on which the New Building is located is occupied by parking accessory to the Lincoln Towers buildings. Therefore, for the same reasons – that the parking spaces are not located on the same zoning lot as the primary use to which they are accessory, they are an impermissible rear yard obstruction in the 200 Amsterdam interior lot portion of the Gerrymandered Zoning Lot and therefore in non-compliance with Zoning Resolution Section 23-44.
13 RE\18900\0001\2271853v2 200 Amsterdam Avenue Page 14
and the driveways and parking lots located on the Gerrymandered Zoning Lot are not a joint facility because, as already noted, the 200 West End Avenue building has its own below grade accessory parking facility, and the New Building does not require and will not provide any parking.
Subtracting the 33,983 sf of driveways and parking on the Gerrymandered Zoning Lot leaves 53,093 sf of open space that is theoretically “accessible to and usable by” to persons occupying dwelling units in the New Building, albeit not for parking. However, based on the information shown on the Zoning Diagram, pursuant to Zoning Resolution Section 23-151, for a zoning lot having a height factor of 25 (592,688 sf of residential floor area divided by 23,718 sf of lot coverage), a minimum open space ratio of 13.1% is required, which requires 77,642 sf of open space. Thus, at 53,093 sf (excluding the open space not accessible and usable to the occupants of dwelling units on the Gerrymandered Zoning Lot (including both the New Building and the 200 West End Avenue building), the Gerrymandered Zoning Lot would have 24,549 sf less open space than required by zoning. In fact, even if only 9,435 sf of the open space were occupied by driveways and parking used by the occupants of the Towers Zoning Lot and therefore, also impermissible open space obstructions, the Gerrymandered Zoning Lot would not have enough open space to comply with Section 23-151.
Other portions of the Gerrymandered Zoning Lot’s open space, in particular, the long, narrow strips that connect the New Building and the 200 West End Avenue building to the more rectangular but nevertheless irregular open spaces in the middle of the block may be accessible in a strict sense, are not “usable” in any meaningful sense of the word.
While “usable” is not a defined term and Section 23-151 only makes provisions as to the quantity and not the quality of open space, other sections of the Zoning Resolution give some indication of the intended purpose and use of required unobstructed open space. For example, Section 78-52 provides that in large-scale residential developments, “common open space” not occupied by permitted obstructions “shall include both active and passive recreation space providing a range of recreational facilities and activities… Passive recreation space shall be landscaped.” As noted in the Zoning Challenge, Zoning Resolution Section 21-00(d) provides that one of the general purposes of the residence district regulations is “to encourage the provision of additional open space by permitting moderately higher bulk and density with better standards of open space” and “to provide open areas for rest and recreation.”
It is difficult if not impossible to imagine that any of the non-obstructed open spaces on the Gerrymandered Zoning Lot could be said to meet these general purposes. The standard of these open spaces is not better but worse: narrow strips unusable for anything but walking across to get from point A to point B, small blocks of space wedged between parking lots, with playgrounds, ball fields or courts, no benches, chairs or tables. It seems clear that this “open space” was created
14 RE\18900\0001\2271853v2 200 Amsterdam Avenue Page 15
for one purpose and one purpose only: to achieve “higher bulk and density” but avoid the quid pro quo of “better standards of open space”. It is open space in name only, meeting the merest letter of the law but none of its purpose and intent.
V. Conclusion
The Permit was invalidly issued and should be revoked because:
1. the Gerrymandered Zoning Lot does not consist of “lots of record,” meaning entire tax lots as shown on the official tax map of the City of New York; and
2. even if the Gerrymandered Zoning Lot were not improperly formed, it does not comply with the open space requirements of Section 23-151 because at least a substantial portion of the open space is not “accessible to and usable by” occupants of the New Building’s dwelling units and are occupied by impermissible obstructions in non- compliance with Sections 12-10, 23-12, 23-44, 25-52 and 25-64.
The interpretations of DOB with respect to “zoning lot,” “open space,” permitted obstructions and off-site parking are all in conflict with both the letter and purpose of the Zoning Resolution and cannot be sustained.
Therefore, for the reasons set forth herein, it is respectfully requested that the Board revoke the Permit.
Dated: October 25, 2017 By: ______Frank E. Chaney Esq.
15 RE\18900\0001\2271853v2
Attachment A
1987 Gerrymander Description Zoning Lot Diagram
RE\18900\0001\2271853v2
Attachment B
2015 Zoning Lot Description Zoning Lot Diagram
RE\18900\0001\2271853v2
Attachment C
ZRD1 Response Form
RE\18900\0001\2271853v2 DEPT HLDGS Job No. 122887224
11111111111 IIIII 11111 IIIII 111111111111111 Hill IIIItill Scan code ESHS2296448 ZRD1/CCD1 Resonse Form l',1,2,51 Location Information (To be completed by a Buildings Department official if applicable)
House No(s) 200 Street Name AMSTERDAM AVENUE
Borough Manhattan Block 733 Lot 1158 BIN Job No. 122887224 (7,z/z,,,,e,,07,),,,,, DETERMINATION(To be completed by a Buildings Department official) 0/.,,,,,,,.4w; Request has been: X Approved Denied Approved with conditions X Follow-up appointment required? 1111 Yes No Primary Zoning Resolution or Code Section(s): ZR 12-10 Other secondary Zoning Resolution or Code Section(s): ZR 23-62, ZR 23-44, MDL 4.35(a) & (b) Comments: Zoning Challenge Accepted/Denied:
The Department is in receipt of a zoning challenge which claims that the open space provided does not qualify as Open Space as defined in the Zoning Resolution. The challenge also alleges that the mechanical space at the top of the building does meet the definition of a permitted obstruction per the Multiple Dwelling Law.
The challenge claims that the open space dimensions provided, does not qualify as Open Space as defined in the Zoning Resolution, because residents of the existing building on the zoning lot do not have access to the space.
In response to this claim, the Department has issued a notice of objections and an intent to revoke to verify the open space ratio and that the zoning lot was properly formed.
Further, the challenge claims that four floors of mechanical space at the top of the building do not meet the definition of a permitted obstruction, as such an interpretation is inconsistent with the New York State Multiple Dwelling Law.
The Department disagrees with the challenge. Definitions in the New York State Multiple Dwelling Law should not be used as a reference to interpret the New York City Zoning Resolution. The four floors of mechanical space at the top of the buildings meet the definition of a permitted obstruction pursuant to ZR 23-62.
Note: If approved determination is not scanned or microfilmed, it will be deemed invalid.
Name of Authorized Reviewer (please print): MARTIN REBHOLZ, RA
Title (please print): MANHATTAN B Li H CO iSSIONER
Authorized Signature: Date: "7- ( 6, (7 Time:
issuers: Llinte signature, dame oh eh . :gef the request 'ms: and attach this form
Note: Determination will p re if construction doc oval is not obtained within 12 months of issuance.
6/09
Attachment D
Challenge Results and Challenge Period Status Web Pages
RE\18900\0001\2271853v2 Challenge Results
NYC Department of Buildings Challenge Results No Scanned Challenge Results Found For This JOB
When multiple challenge documents are listed, click on the one with latest "Date Scanned" Date to see the most current version. For more information on Zoning Diagrams & Challenge Process, click here.
Premises: 200 AMSTERDAM AVENUE MANHATTAN Job No: 122887224 BIN: 1030358 Block: 1158 Lot: 133 Job Type: NB - NEW BUILDING
Zoning Documents Challenge Period Status
FORM NAME ↓ Form Doc PAA DATE SCAN ID No. SCANNED CODE
If you have any questions please review these Frequently Asked Questions, the Glossary, or call the 311 Citizen Service Center by dialing 311 or (212) NEW YORK outside of New York City.
http://a810-bisweb.nyc.gov/bisweb/JobsChallengeDocumentsServlet?requestid=4... 10/20/2017 Challenge Period Status
NYC Department of Buildings Challenge Period Status For more information on Zoning Diagrams & Challenge Process, click here. Premises: 200 AMSTERDAM AVENUE MANHATTAN Job No: 122887224 BIN: 1030358 Block: 1158 Lot: 133 Job Type: NB - NEW BUILDING
Last Action: PERMIT ISSUED - PARTIAL JOB 09/27/2017 (Q) Application Approved on: 05/09/2017
Zoning Documents Challenge Results
Challenge Status Appeal Status Closed on 05/13/2017
If you have any questions please review these Frequently Asked Questions, the Glossary, or call the 311 Citizen Service Center by dialing 311 or (212) NEW YORK outside of New York City.
http://a810-bisweb.nyc.gov/bisweb/JobsDocumentSummaryServlet?requestid=3&... 10/20/2017 Attachment E
Recorded Documents Affecting Gerrymandered Zoning Lot, 1987-2017
Date Reel/Page or CRFN Type of Agreement (Description) Lots Affected (f/k/a)
2/3/1987 1190/9 Zoning Lot Description and Ownership Statement 1, 30, 70, 80, 90
4/16/1987 1217/1402 Declaration of Zoning Lot Subdivision and Restrictions 1, 30, 70, 80, 90 (Declaration for Subdivision creating Tower & Gerrymander Parcel zoning lots)
4/16/1987 1217/1438 Declaration of Zoning Lot Restrictions 1, 10, 12, 30, 65, 70, 80, 90
4/16/1987 1217/1475 Zoning Lot Description and Ownership Statement (Combined 1, 10, 12, 30, 65, 70, 80, 90 Gerrymandered Parcel and Commercial Parcels)
4/16/1987 1217/1498 Zoning Lot Description and Ownership Statement (Towers 1, 30, 70, 80, 90 Parcel zoning lot)
4/28/1987 1221/1929 ZLDA (Gerrymander & Commercials parcels) 1, 10, 12, 30, 65, 70, 80, 90
4/28/1987 1221/1970 ZLDA (Towers Parcel zoning lot) 1, 30, 70, 80, 90
6/3/1987 1239/1343 Zoning Lot Description and Ownership Statement (Combined 1, 10, 12, 30, 65, 70, 80 Gerrymandered Parcel and Commercial Parcels)
6/3/1987 1239/1366 Amended Declaration (Gerrymander & Commercials) 1, 10, 12, 30, 65, 70, 80
6/3/1987 1239/1394 Sundry Agreement (Amendment to Zoning Lot Development 1, 10, 12, 30, 65, 70, 80 Agreement: Amended ZLDA for Gerrymander & Commercials)
6/3/1987 1239/1422 Amendment to ZLDA (Towers zoning lot) 1, 30, 70, 80, 90
E-1 RE\18900\0001\2273899v1
Date Reel/Page or CRFN Type of Agreement (Description) Lots Affected (f/k/a)
6/3/1987 1239/1447 Amended Zoning Lot Description and Ownership Statement by 1, 30, 70, 80, 90 Building Permit Applicant
6/3/1987 1239/1470 Amendment to Declaration of Zoning Lot Subdivision 1, 30, 70, 80, 90 Restrictions
12/4/2002 3676/1295 Declaration of Covenants, Conditions and Restrictions 65
5/9/2006 2006000281432 Declaration of Development Covenants and Restrictions 10, 12, 65
8/31/2007 2008000171223 Declaration of Zoning Lot Restrictions 10, 12, 133, 18, 65, 1001- 1007 (1), 1101-1107 (70), 1201-1208 (80), 1401-1405 (30)
8/31/2007 2007000609689 Declaration of Zoning Lot Restrictions (Enlargement) 10, 12, 133
8/31/2007 2007000609688 Supplemental Zoning Lot Development Agreement 10, 12, 133
9/9/2011 2011000334157 Amendment to Supplemental Zoning Lot Development 10, 12, 133 Agreement, Termination of Third Amended and Restated Declaration of Covenants, Conditions and Restrictions, and Declaration of Covenants, Conditions and Restrictions
8/29/2012 2012000403589 Zoning Lot Description and Ownership Statement 10, 12, 18, 133, 1101-1107 (70), 1401-1405 (30), 1201- 1208 (80), 1501-1672 (65)
E-2 RE\18900\0001\2273899v1
Date Reel/Page or CRFN Type of Agreement (Description) Lots Affected (f/k/a)
6/18/2015 2015000209093 Declaration With Respect to Subdivision of Zoning Lot 133, 1001-1007 (1), 1401- 1405 (30), 1101-1107 (70), 1201-1208 (80), 1501-1672 (65)
6/16/2015 2015000218679 Zoning Lot Description and Ownership Statement 133, 1001-1007 (1), 1401- (Gerrymandered Zoning Lot) 1405 (30), 1101-1107 (70), 1201-1208 (80), 1501-1672 (65)
6/16/2015 2015000216833 Zoning Lot Description and Ownership Statement (Amsterdam 10, 12, 18, 1001-1007 (1), Commercial Zoning Lot) 1401-1405 (30)
10/15/2015 2015000378635 Declaration and Agreement With Respect to Zoning Rights) 133
10/15/2015 2015000378634 Declaration of Restrictions 10, 133
10/15/2015 2015000378632 First Amendment to Amendment to Supplemental Zoning Lot 10, 12, 133 Development Agreement, Termination of Third Amended and Restated Declaration of Covenants, Conditions and Restrictions and Declaration of Covenants, Conditions and Restrictions
7/14/2016 2016000248586 First Amendment to Declaration and Agreement With Respect 133, 9133 to Zoning Rights
7/14/2016 2016000248583 First Amendment to Declaration of Restrictions 10, 133, 9133
E-3 RE\18900\0001\2273899v1
Date Reel/Page or CRFN Type of Agreement (Description) Lots Affected (f/k/a)
7/14/2016 2016000248582 Second Amendment to Amendment to Supplemental Zoning 10, 12, 133, 9133 Lot Development Agreement, Termination of Third Amended and Restated Declaration of Covenants, Conditions and Restrictions and Declaration of Covenants, Conditions and Restrictions
1/26/2017 2017000053112 Zoning Lot Description and Ownership Statement 133, 1101 - 1107 (70), 1201-1208 (80), 1501 - 1672 (65), 1001 - 1007 (1), 1401 - 1405 (30), 9133
E-4 RE\18900\0001\2273899v1 fit 250 Broadway, 29th Floor New Yorl{, NY 10007 212-386-0009 - .Phone Baard of Standards 646-500-6271 -Fax and Appeals ~~v~v~r.t~~~c.~o~/hsa
AFFIDAVIT OF OWNERSHIP AND AUTHORIZATION
Affidavit of Ownership
Ulive Freud being duly sworn, deposes and says that (s)he resides
305 West 72nd Street New York New Yurk at , in the City of in the County of , in the New York she is the President of'the Committee for Environmentally S t ate of ,•that Manhattan Sound Development i n the Borough of , in the City of New York
NA NA and known and designated as Block , Lot(s) ,Street and House Number NA and that the statement of facts in the annexed application are true.
Check one of the following conditions:
Sole property owner of zoning lot
Cooperative Building
Condominium Building
Zoning lot contains more than one tax lot and property owner
Owner's Authorization Frank E. Chaney, Esq. The owner identified above hereby authorizes
to make the annexed application in her/his behalf. ~ ~ ~ ~.
Signature of Owner f ~~~~~~_ ` ~- '~
Olive Freud Print Name
President Print Title
.~ L-~ Sworn to before me this '2i ~ day
Of ~ ~~ 2 ~~ ~!RA~!!~ ~HAtVFY olio Public, State of Mew ~r1t Na. ~2CNfi315~3~ ~~ t ified i~ New York ,~ Commission r~ l~o~mb~r ~ ~ 2018
Revised March 8, 2012 122887224-01-NB 09/27/2017 01/01/2018 Issued to: MARC DEPAUL MANHATTAN 200 AMSTERDAM AVENUE Business: PAVARINI MCGOVERN LLC Contractor No: GC-23947
NEW BUILDING - FILING HEREWITH FOR NEW RESIDENTIAL BUILDING AS PER PLANS + CONSTRUCTION FENCE. AS SHOWN ON DRAWINGS FILED HEREWITH.
Review is requested under Building Code: 2014 SITE FILL: OFF-SITE
SITE SAFETY PHONE : 212 669-7043
01 10/16/2017
Board of Standards and Appeals
200 Amsterdam Avenue Appeal
Applicable Zoning Resolution Sections
Section Title Page 12-10 Definitions – Zoning lot 1 12-10 Definitions – Open Space 5 12-10 Accessory Use, or Accessory 6 23-12 Permitted Obstructions in Open Space 7 25-52 Off-site Spaces for Residences 8 25-64 Restrictions on Use of Open Space for Parking 9 23-44 Permitted Obstructions in Required Yards or Rear Yard Equivalents 10 23-151 Basic regulations for R6 through R9 Districts 11
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
§12-10 DEFINITIONS
* * *
Zoning lot (2/2/11)
A "zoning lot" is either:
(a) a lot of record existing on December 15, 1961 or any applicable subsequent amendment thereto;
(b) a tract of land, either unsubdivided or consisting of two or more contiguous lots of record, located within a single block, which, on December 15, 1961 or any applicable subsequent amendment thereto, was in single ownership;
(c) a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block, which at the time of filing for a building permit (or, if no building permit is required, at the time of the filing for a certificate of occupancy) is under single fee ownership and with respect to which each party having any interest therein is a party in interest (as defined herein); or
(d) a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block, which at the time of filing for a building permit (or, if no building permit is required, at the time of filing for a certificate of occupancy) is declared to be a tract of land to be treated as one zoning lot for the purpose of this Resolution. Such declaration shall be made in one written Declaration of Restrictions covering all of such tract of land or in separate written Declarations of Restrictions covering parts of such tract of land and which in the aggregate cover the entire tract of land comprising the zoning lot. Any Declaration of Restrictions or Declarations of Restrictions which individually or collectively cover a tract of land are referred to herein as "Declarations". Each Declaration shall be executed by each party in interest (as defined herein) in the portion of such tract of land covered by such Declaration (excepting any such party as shall have waived its right to execute such Declaration in a written instrument executed by such party in recordable form and recorded at or prior to the recording of the Declaration). Each Declaration and waiver of right to execute a Declaration shall be recorded in the Conveyances Section of the Office of the City Register or, if applicable, the County Clerk's Office of the county in which such tract of land is located, against each lot of record constituting a portion of the land covered by such Declaration.
A zoning lot, therefore, may or may not coincide with a lot as shown on the official tax map of the City of New York, or on any recorded subdivision plat or deed. Parcels within City-owned tracts of land located in Broad Channel within the boundaries of Community Board 14 in the Borough of Queens that were numerically identified for leasing purposes on maps filed in the
2
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
Office of Borough President prior to December 15, 1961, may be considered as individual lots of record as of September 10, 1981.
(e) For purposes of the provisions of paragraph (c) hereof:
(1) Prior to issuing a building permit or a certificate of occupancy, as the case may be, the Department of Buildings shall be furnished with a certificate issued to the applicant therefor by a title insurance company licensed to do business in the State of New York showing that each party having any interest in the subject tract of land is a party in interest (as defined herein); except that where the City of New York is a fee owner, such certificate may be issued by the New York City Law Department; and
(2) A "party in interest" in the tract of land shall include only (W) the fee owner thereof, (X) the holder of any enforceable recorded interest superior to that of the fee owner and which could result in such holder obtaining possession of all or substantially all of such tract of land, (Y) the holder of any enforceable recorded interest in all or substantially all of such tract of land which would be adversely affected by the development thereof and (Z) the holder of any unrecorded interest in all or substantially all of such tract of land which would be superior to and adversely affected by the development thereof and which would be disclosed by a physical inspection of the tract of land.
(f) For purposes of the provisions of paragraph (d) hereof:
(1) Prior to issuing a building permit or a certificate of occupancy, as the case may be, the Department of Buildings shall be furnished with a certificate issued to the applicant therefor by a title insurance company licensed to do business in the State of New York showing that each party in interest (excepting those parties waiving their respective rights to join therein, as set forth in this definition) has executed the Declaration and that the same, as well as each such waiver, have been duly recorded; except that where the City of New York is a fee owner, such certificate may be issued by the New York City Law Department;
(2) The Buildings Department, in issuing a building permit for construction of a building or other structure on the zoning lot declared pursuant to paragraph (d) above or, if no building permit is required, in issuing a certificate of occupancy for such building or other structure, shall accept an application for same from and, if all conditions for issuance of same are fulfilled, shall issue same to any party to the Declaration;
(3) By their execution and recording of a Declaration, the parties to the Declaration, and all parties who have waived their respective rights to execute such Declaration, shall be deemed to have agreed that no breach by any party to the Declaration, or any agreement ancillary thereto, shall have any effect on the
3
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
treatment of the tract of land covered by the Declaration as one zoning lot for purposes of this Resolution and such tract of land shall be treated as one zoning lot unless such zoning lot is subdivided in accordance with the provisions of this Resolution; and
(4) A "party in interest" in the portion of the tract of land covered by a Declaration shall include only (W) the fee owner or owners thereof, (X) the holder of any enforceable recorded interest in all or part thereof which would be superior to the Declaration and which could result in such holder obtaining possession of any portion of such tract of land, (Y) the holder of any enforceable recorded interest in all or part thereof which would be adversely affected by the Declaration, and (Z) the holder of any unrecorded interest in all or part thereof which would be superior to and adversely affected by the Declaration and which would be disclosed by a physical inspection of the portion of the tract of land covered by the Declaration.
A zoning lot may be subdivided into two or more zoning lots, provided that all resulting zoning lots and all buildings thereon shall comply with all of the applicable provisions of this Resolution. If such zoning lot, however, is occupied by a non-complying building, such zoning lot may be subdivided provided such subdivision does not create a new non-compliance or increase the degree of non-compliance of such building.
Where ownership of a zoning lot or portion thereof was effected prior to the effective date of this amendment, as evidenced by an attorney's affidavit, any development, enlargement or alteration on such zoning lot may be based upon such prior effected ownership as then defined in the zoning lot definition of Section 12-10. Such prior leasehold agreements shall be duly recorded prior to August 1, 1978.
Prior to the issuance of any permit for a development or enlargement pursuant to this Resolution a complete metes and bounds of the zoning lot, the tax lot number, the block number and the ownership of the zoning lot as set forth in paragraphs (a), (b), (c) and (d) herein shall be recorded by the applicant in the Conveyances Section of the Office of the City Register (or, if applicable, the County Clerk's Office) of the county in which the said zoning lot is located. The zoning lot definition in effect prior to the effective date of this amendment shall continue to apply to Board of Standards and Appeals approvals in effect at the effective date hereof.
4
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
§12-10 DEFINITIONS
* * *
Open space (2/2/11)
"Open space" is that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot.
Open space may, however, include areas covered by roofs, the total area of which is less than 10 percent of the unroofed or uncovered area of a zoning lot, provided that such roofed area is not enclosed on more than one side, or on more than 10 percent of the perimeter of the roofed area, whichever is greater.
5
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
§12-10 DEFINITIONS
* * *
Accessory use, or accessory (4/30/12)
An "accessory use":
(a) is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of land), except that, where specifically provided in the applicable district regulations or elsewhere in this Resolution, accessory docks, off-street parking or off- street loading need not be located on the same zoning lot; and
(b) is a use which is clearly incidental to, and customarily found in connection with, such principal use; and (c) is either in the same ownership as such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use.
When "accessory" is used in the text, it shall have the same meaning as accessory use.
An accessory use includes:
(13) Accessory off-street parking spaces, open or enclosed.
6
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
23-12 (4/30/12) Permitted Obstructions in Open Space
R1 R2 R3 R4 R5 R6 R7 R8 R9 R10
In the districts indicated, the following obstructions shall be permitted in any open space required on a zoning lot:
* * *
(e) Driveways, private streets, open accessory off-street parking spaces, unenclosed accessory bicycle parking spaces or open accessory off-street loading berths, provided that the total area occupied by all these items does not exceed the percentages set forth in Section 25-64 (Restrictions on Use of Open Space for Parking);
* * *
However, any such open space that is part of a required yard, rear yard equivalent or court may contain an obstruction listed in this Section only where such obstruction is permitted, pursuant to Sections 23-44 (Permitted Obstructions in Required Yards or Rear Yard Equivalents) or 23-87 (Permitted Obstructions in Courts), as applicable.
7
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
25-52 (2/6/72) Off-site Spaces for Residences
R3 R4 R5 R6 R7 R8 R9 R10
In the districts indicated, all permitted or required off-street parking spaces accessory to residences may be provided on a zoning lot other than the same zoning lot as the residences to which such spaces are accessory, provided that in such instances all such spaces are:
(a) located in a district other than a Residence District or a C7 District, or provided in a joint facility located in a district other than an R1 or R2 District, on the same zoning lot as one of the buildings to which it is accessory, and conforming to the provisions of Section 25- 541 (Joint Facilities); and
(b) not further than the maximum distance from the zoning lot specified in Section 25-521.
25-521 (10/29/07) Maximum distance from zoning lot
R3 R4 R5 R6 R7 R8 R9 R10
In the districts indicated, all such spaces shall not be further than the distance set forth in the following table from the nearest boundary of the zoning lot occupied by the residences to which they are accessory.
District Maximum Distance from Zoning Lot R3 R4 R5 R6 R7-1 R7B 600 feet R7-2 R7A R7D R7X R8 R9 R10 1,000 feet
8
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
(4/14/10) 25-64 Restrictions on Use of Open Space for Parking
Restrictions on the use of open space for parking and driveways are set forth in this Section, in accordance with the provisions of Section 23-12 (Permitted Obstructions in Open Space).
* * *
(c) In R6, R7, R8, R9 and R10 Districts without a letter suffix, driveways, private streets, open accessory off-street parking spaces, unenclosed accessory bicycle parking spaces or open accessory off-street loading berths may not use more than 50 percent of the required open space on any zoning lot. The provisions of this paragraph (c) shall not apply to Quality Housing buildings.
9
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
23-44 (3/22/16) Permitted Obstructions in Required Yards or Rear Yard Equivalents
In all Residence Districts, the following obstructions shall be permitted within a required yard or rear yard equivalent:
(a) In any yard or rear yard equivalent:
* * *
(13) Parking spaces for automobiles or bicycles, off-street, open, accessory, within a side or rear yard;
10
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
23-151 (3/22/16) Basic regulations for R6 through R9 Districts
R6 R7 R8 R9
In the districts indicated without a letter suffix, the minimum required open space ratio and the maximum floor area ratio for any zoning lot shall be determined by the height factor of such zoning lot as set forth in this Section.
MINIMUM REQUIRED OPEN SPACE RATIO AND MAXIMUM FLOOR AREA RATIO R6 through R9 Districts
In R6 Districts In R7 Districts In R8 Districts In R9 Districts For Min. Max. Min. Max. Min. Max. Min. Max. zoning Req. floor Req. floor Req. floor Req. floor lots with open area open area open area open area a height space ratio space ratio space ratio space ratio factor of ratio ratio ratio ratio 1 27.5 0.78 15.50 0.87 5.90 0.94 1.00 0.99 2 28.0 1.28 16.00 1.52 6.20 1.78 1.40 1.95 3 28.5 1.62 16.50 2.01 6.50 2.51 1.80 2.85 4 29.0 1.85 17.00 2.38 6.80 3.14 2.20 3.68 5 29.5 2.02 17.50 2.67 7.10 3.69 2.60 4.42 6 30.0 2.14 18.00 2.88 7.40 4.15 3.00 5.08 7 30.5 2.23 18.50 3.05 7.70 4.55 3.40 5.65 8 31.0 2.30 19.00 3.17 8.00 4.88 3.80 6.13 9 31.5 2.35 19.50 3.27 8.30 5.15 4.20 6.54 10 32.0 2.38 20.00 3.33 8.60 5.38 4.60 6.85 11 32.5 2.40 20.50 3.38 8.90 5.56 5.00 7.09 12 33.0 2.42 21.00 3.41 9.20 5.71 5.40 7.30 13 33.5 2.43 21.50 3.42 9.50 5.81 5.80 4.41 14 34.0 2.43 22.00 3.44 9.80 5.92 6.20 7.52 15 34.5 2.43 22.50 3.42 10.10 5.95 6.60 7.52 16 35.0 2.42 23.00 3.41 10.40 5.99 7.00 7.52 17 35.5 2.40 23.50 3.40 10.70 6.02 7.40 7.52 18 36.0 2.00 24.00 3.38 11.00 6.02 7.80 7.46 19 36.5 0.39 24.50 3.36 11.30 6.02 8.20 7.41 20 37.0 2.38 25.00 3.33 11.60 6.02 8.60 7.35 21 37.5 2.36 25.50 3.30 11.90 5.99 9.00 7.25
11
RE\18900\0001\2276659v1 Italicized words are defined in Section 12-10
For zoning lots with height factors greater than 21, the minimum required open space ratio shall be as set forth in the following table:
OPEN SPACE RATIO FOR HIGH BUILDINGS
Minimum Required Additional Required Open Space Ratio Open Space Ratio for at Height Factor each Additional District of 21 Height Factor R6 37.5 0.5 R7 25.5 0.5 R8 11.9 0.3 R9 9.0 0.4
12
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Board of Standards and Appeals
200 Amsterdam Avenue Appeal
Relevant Case Law
Case Page
Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577 (1998) 1
Tompkins v Hunter, 149 N.Y. 117 (1896) 10
Bender v. Jamaica Hosp., 40 N.Y.2d 560 (1976) 16
Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382 (1995) 19
Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98 (1997) 37
RE\18900\0001\2274425v1
91 N.Y.2d 577 (1998) 696 N.E.2d 978 673 N.Y.S.2d 966
Thomas Majewski, Respondent, v. Broadalbin-Perth Central School District, Defendant and Third-Party Plaintiff- Respondent. Adirondack Mechanical Corporation, Third-Party Defendant-Appellant.
Court of Appeals of the State of New York.
Argued March 26, 1998 Decided May 12, 1998.
Thuillez, Ford, Gold & Johnson, L. L. P., Albany (Michael J. Hutter, Dale M. Thuillez and Debra J. Schmidt of counsel), and James P. O'Connor, New York City, for third- party defendant-appellant.
Richard T. Aulisi, Gloversville, and Thorn and Gershon, Albany (Robert F. Doranand Paul D. Jureller of counsel), for respondent.
Maynard, O'Connor, Smith & Catalinotto, L. L. P., Albany (Leslie B. Neustadt and Michael E. Catalinotto of counsel), for defendant and third-party plaintiff-respondent.
Dennis C. Vacco, Attorney-General, Albany (Barbara G. Billet, Peter H. Schiff and Michael S. Buskus of counsel), for State of New York, amicus curiae.
Menagh, Trainor, Mundo & Falcone, P. C., New York City (Christopher A. Bacotti of counsel), for Electrical Employers Self Insurance Safety Plan, amicus curiae.
Schneider, Kleinick, Weitz, Damashek & Shoot, New York City (Brian J. Shoot, Harry Steinberg and John C. Cherundolo of counsel), for New York State Trial Lawyers Association, amicus curiae.
Chief Judge KAYE and Judges TITONE, BELLACOSA, LEVINE, CIPARICK and WESLEY concur.
581*581SMITH, J.
This case requires this Court to examine whether certain amendments to the Workers' Compensation Law should be construed as retroactively applicable to pending actions. We conclude that the Appellate Division properly held that the relevant provisions of the new legislation should not apply to actions pending on the effective date of the amendments. Rather, the provisions should be applied prospectively to actions filed postenactment. Thus, the order of
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the Appellate Division should be affirmed and the certified question should be answered in the negative.
I.
As alleged in the complaint, plaintiff was employed by third-party defendant Adirondack Mechanical Corporation (AMC). On October 26, 1994, plaintiff was assigned by AMC to perform certain repair work at a school operated and maintained by defendant 582*582 Broadalbin-Perth Central School District. AMC had contracted with defendant for the completion of this work.
While performing the assigned repair work on the school's premises, plaintiff fell from an allegedly defective ladder which had been provided by defendant. Plaintiff commenced a lawsuit on December 20, 1995 against defendant to recover for his personal injuries based upon claimed violations of Labor Law §§ 200 and 240 (1). On January 29, 1996, defendant commenced a third-party action against AMC which alleged that AMC had negligently supervised and failed to protect its employee. Defendant further claimed that AMC owed defendant a duty of contribution and/or indemnification for damages plaintiff might recover.
On July 12, 1996, new legislation, commonly referred to as the Omnibus Workers' Compensation Reform Act of 1996, was passed which amended Workers' Compensation Law § 11 to provide that:
"[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a `grave injury'" (L 1996, ch 635, § 2).
However, the amendments did not affect the power of a third party to recover under express contractual obligations between the employer and the third party (id.). The legislation was signed into law by Governor Pataki on September 10, 1996 with the relevant portions of the Act designated to "take effect immediately." Thereafter, on September 20, 1996, AMC filed a motion for summary judgment against the third-party complaint arguing that the action for contribution and/or indemnification was now barred by the recent enactment.[1]
Finding that the legislation was to have retroactive application to pending actions, Supreme Court granted AMC's summary judgment motion and dismissed the third-party complaint. In reversing and denying AMC's motion, the Appellate Division concluded "that the clear legislative intent underlying sections 2 through 9 of the Omnibus Act was that those provisions 583*583 apply prospectively only" (231 AD2d 102, 111). That Court certified the following question to this Court: "Did this court err as a matter of law in reversing the order of the Supreme Court and denying the third-party defendant's motion for summary judgment?" We answer that question in the negative, and affirm the Appellate Division order.
II. 3
RE\18900\0001\2274425v1
"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208; see also, Longines-Wittnauer v Barnes & Reinecke, 15 N.Y.2d 443, 453). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated:
"In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Tompkins v Hunter, 149 N.Y. 117, 122-123; see also, Matter of Raritan Dev. Corp. v Silva, 91 N.Y.2d 98).
Here, the Act says only that the subject provisions are to "take effect immediately" (L 1996, ch 635, § 90). However, the date that legislation is to take effect is a separate question from whether the statute should apply to claims and rights then in existence (see, Shielcrawt v Moffett, 294 N.Y. 180 [separately analyzing retroactive or prospective application of a statute enacted to "take effect immediately"]).
While the fact that a statute is to take effect immediately "evinces a sense of urgency," "the meaning of the phrase is equivocal" in an analysis of retroactivity (Becker v Huss Co., 43 N.Y.2d 527, 541). In fact, we noted in Becker that "[i]dentical language in other acts has not been enough to require application to pending litigation" (id., at 541). Here, the significance of the effective date upon our analysis of the reach of the subject provisions is further obscured because the Legislature explicitly designated prospective or retroactive application for other provisions of the Act not at issue here (L 1996, ch 635, § 90). Under the circumstances, the proviso that the subject provisions were 584*584 to "take effect immediately" contributes little to our understanding of whether retroactive application was intended on the issue presented.
It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it (see, Jacobus v Colgate, 217 N.Y. 235, 240 [Cardozo, J.] ["It takes a clear expression of the legislative purpose to justify a retroactive application"]; Landgraf v USI Film Prods., 511 US 244, 265 ["the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic"]). An equally settled maxim is that "remedial" legislation or statutes governing procedural matters should be applied retroactively (see, Matter of OnBank & Trust Co., 90 N.Y.2d 725, 730; Becker v Huss Co., supra, 43 NY2d, at 540).
However, such construction principles are merely navigational tools to discern legislative intent. Classifying a statute as "remedial" does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to "supply some defect or abridge some superfluity in the former law" (McKinney's Cons Laws of NY, Book 1, Statutes § 321). As we have cautioned, "General principles may serve as guides in the search for the intention of the Legislature in a particular case but only where better guides are not available" (Shielcrawt v Moffett, supra, 294 NY, at 189; see also, Matter of OnBank & Trust Co., supra, 90
4
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NY2d, at 730; Becker v Huss Co., supra, 43 NY2d, at 540). To that end, we turn to legislative history to steer our analysis.
It is clear that one of the key purposes of the Act was the legislative modification of Dole v Dow Chem. Co. (30 N.Y.2d 143) insofar as that case related to third-party actions against employers. That intention was repeatedly expressed by all sides during the legislative debates and is included in the official statement of intent (see, L 1996, ch 635, § 1 ["It is the further intent of the legislature to create a system which protects injured workers and delivers wage replacement benefits in a fair, equitable and efficient manner, while reducing time-consuming bureaucratic delays, and repealing Dole liability except in cases of grave injury."]). In Dole, this Court examined the share of losses to be apportioned between joint tortfeasors. Notwithstanding which tortfeasor was sued by an injured plaintiff, this Court concluded that the defendant, if found liable, could recover a proportionate share from a joint tortfeasor. 585*585 As we stated, "where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party" (Dole v Dow Chem. Co., supra, 30 NY2d, at 148-149; see also, Raquet v Braun, 90 N.Y.2d 177, 182). Such equitable principles are codified in article 14 of the CPLR.
In Dole, the plaintiff was the employee of the third-party defendant so no recovery could be had against the employer by the employee or "anyone otherwise entitled to recover damages * * * on account of such injury or death" under Workers' Compensation Law § 11. Nevertheless, we extended our reasoning concerning the apportionment of liability to allow contribution or indemnification from an employer even though the employer could not have been liable directly to a plaintiff who had chosen to sue the joint tortfeasor. It was this part of the decision that proved most controversial.
With the recent passage of the Act, the Legislature endeavored to clarify and restore "the force of `exclusive remedy' (or `no fault') provisions. Specifically, amendments would protect employers and their employees from other than contract-based suits for contribution or indemnity by third parties (such as equipment manufacturers which have been deemed liable for causing employees injuries or deaths) — in effect, repealing the doctrine of Dole" (Assembly Mem in Support, 1996 McKinney's Session Laws of NY, at 2562).
Memoranda issued contemporaneously with the passing and signing of the Act provided that "the exclusive remedy" would be "restored and reinforced" (id., at 2565; see also, Governor's Approval Mem, 1996 McKinney's Session Laws of NY, at 1915). In an analysis of retroactive application, we have found it relevant when the legislative history reveals that the purpose of new legislation is to clarify what the law was always meant to say and do (see, Matter of OnBank & Trust Co., supra, 90 NY2d, at 731). However, labeling the legislation as "remedial" in this regard is not dispositive in light of other indicators of legislative intent.
For example, legislators made declarations during floor debates that conclusively state that the Act was not intended to be applied retroactively (231 AD2d, at 109). Moreover, a report entitled "New York State Assembly Majority Task Force 586*586 on Workers' Compensation Reform"
5
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explicitly states (at 25) that the provisions would apply only to "accidents that occur [after the effective] date forward," and was "not intended to limit the rights of parties to a lawsuit filed after the law takes effect, but involving a claim arising from an accident that occurred before the law took effect." Although these averments "may be accorded some weight in the absence of more definitive manifestations of legislative purpose" (Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d 311, 318), such indicators of legislative intent must be cautiously used (see, Woollcott v Shubert, 217 N.Y. 212, 221 ["statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes"]). As the Supreme Court has noted:
"it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other" (United States v Freight Assn., 166 US 290, 318).
On the same footing are statements contained in the Governor's Memorandum issued with the signing of the Act. In it, the Governor states his view that the legislation was intended to be retroactive (1996 McKinney's Session Laws of NY, at 1912 ["(o)f primary importance is the retroactive repeal" of Dole]). The Governor further stated that:
"This new system, which takes effect immediately, is enacted with the specific intent of maximizing savings in workers' compensation premiums through its application to all cases currently pending in the courts of our State wherein the primary action has neither been settled nor reduced to judgment" (id., at 1913).
Although postenactment statements of the Governor may be examined in an analysis of legislative intent and statutory purpose (see, e.g., Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 N.Y.2d 154 [relying upon gubernatorial memoranda]; see also, Killenbeck, A Matter of Mere Approval? The Role of the President in the Creation of Legislative History, 48 Ark L Rev 239), such statements suffer from the same infirmities as those made during floor debates by legislators. 587*587 Here, the reports and memoranda simply indicate that various people had various views.[2]
Importantly, we note that the initial draft of the Act expressly provided that it would apply to "lawsuit[s] [that have] neither been settled nor reduced to judgment" by the date of its enactment (231 AD2d, at 107). That language does not appear in the enacted version. A court may examine changes made in proposed legislation to determine intent (see, United States v St. Paul, Minneapolis & Manitoba Ry. Co., 247 US 310, 318; Woollcott v Shubert, supra, 217 NY, at 221; People v Korkala, 99 AD2d 161, 166 ["rejection of a specific statutory provision is a significant consideration when divining legislative intent"]). Here, such evidence is consistent with the strong presumption of prospective application in the absence of a clear statement concerning retroactivity.
Appellant points to the general principle that legislation is to be interpreted so as to give effect to every provision. A construction that would render a provision superfluous is to be avoided 6
RE\18900\0001\2274425v1
(Matter of OnBank & Trust Co., supra, 90 NY2d, at 731; McKinney's Cons Laws of NY, Book 1, Statutes § 98 [a]). In this regard, appellant argues that sections 87 and 88 of the Act would be rendered meaningless if the provisions concerning third-party contribution claims were not applied retroactively. We disagree.
Section 88 of the Act mandates an audit of all workers' compensation insurance carriers and the State Insurance Fund to determine "the value as of December 31, 1996 of any reduction in reserves, hereinafter referred to as the reserve adjustment, required to be established for losses or claims pursuant to section 1303 of the insurance law and, concerning the state insurance fund, section 88 of the workers' compensation law that result from the application" of the Act's provisions related to Dole liability (L 1996, ch 635, § 88 [a]). Section 87 of the Act imposes a $98 million "special assessment" on all licensed workers' compensation insurance carriers that is to be deposited in the general fund of the State (L 1996, ch 635, § 87). There is nothing in the law itself indicating the reason 588*588 for the assessment or the intent behind these sections of the Act.
Section 88 refers to "reserves * * * required to be established for losses or claims pursuant to section 1303 of the insurance law." The referenced provision states that:
"[e]very insurer shall * * * maintain reserves in an amount estimated in the aggregate to provide for the payment of all losses or claims incurred on or prior to the date of statement, whether reported or unreported, which are unpaid as of such date and for which such insurer may be liable, and also reserves in an amount estimated to provide for the expenses of adjustment or settlement of such losses or claims" (Insurance Law § 1303 [emphasis supplied]).
Plainly, the statute requires insurers to set aside "reserves" for losses or claims that have been incurred but not reported to the company. Such reserves are calculated actuarially based upon a statistical analysis of the insurance company's loss experience (see, Matter of Stewart [Citizens Cas. Co.], 23 N.Y.2d 407, 414-415). Examined under the circumstances presented, workers' compensation carriers are required to maintain reserves for (1) reported and expected Dolelosses on pending actions; and (2) anticipated Dole losses on claims already incurred but not yet reported or asserted. If the new amendments were applied prospectively, the second category of Dole losses would, by and large, never materialize and the reserves set aside to cover such claims would be reduced.
However, that "reduction" is mathematically related to monies already collected by carriers via the payment of premiums. The Legislature apparently decided that the State should receive such "reduction in reserves" rather than permit insurers to retain the monies. As noted in the "New York State Assembly Majority Task Force on Workers' Compensation Reform" report (at 31):
"As a result of the changes in employer liability enacted (Dole), carriers would be collecting more premium than actuarial [sic] needed. As a result, the legislation provides that this money be returned to the State."
7
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While the elimination of pending Dole claims might lead to a maximum reduction in insurance reserves, there is some reduction in reserves even upon a prospective application of the 589*589 legislation. Thus, sections 87 and 88 of the Act would not be rendered meaningless in the absence of retroactive application. Indeed, it is impossible to determine from the record provided how the Legislature actually derived $98 million as the amount of the "special assessment." As for whether these accounting provisions necessitate the wholesale dismissal of pending Doleclaims, we are reluctant to assume that the Legislature would choose such a vexing and circuitous means of conveying that intent.
We further note our agreement with the statement made by the Appellate Division in Morales v Gross (230 AD2d 7) that the "purpose of the subject provisions was to abolish most third-party actions so as to enhance the exclusivity of the Workers' Compensation Law, thereby reducing insurance premiums and decreasing the cost of doing business in New York" (id., at 12). An extensive subject of discussion in the floor debates surrounding the subject legislation was how employers of New York have been forced to pay the highest insurance premiums in the country due, in part, to the possibility of third-party contribution/indemnification claims.
Prospective application of the legislation would still accomplish the legislative purpose of reducing insurance premiums and workers' compensation costs for employers and, in that way, assist "our State's ability to attract and maintain businesses and jobs" (Governor's Approval Mem, 1996 McKinney's Session Laws of NY, at 1912). Current employers would presumably realize future savings through the elimination of Dole claims and the consequent reduction in insurance premiums.[3] Moreover, prospective application still enables the payment of substantial sums to the State by insurance companies who have, indirectly, benefitted from the reduction of reserves.
That a statute is to be applied prospectively is strongly presumed and here, we find nothing that approaches any type of "clear" expression of legislative intent concerning retroactive application. Indeed, other than the Governor's statements, the direct evidence concerning retroactivity is either against that view or equivocal. Moreover, the discernible legislative purpose does not mandate a particular result. "In the end, it is in 590*590 considerations of good sense and justice that the solution must be found" (Matter of Berkovitz v Arbib & Houlberg, 230 N.Y. 261, 271 [Cardozo, J.]) in the specific circumstances of each case.
We conclude that, irrespective of the date of the accident, a prospective application of the subject legislation to actions by employees for on-the-job injuries against third parties filed after the effective date of the relevant provisions is eminently consistent with the over-all and specific legislative goals behind passage of the Act.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.
Order affirmed, etc.
8
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[1] Not at issue is whether the plaintiff's injuries qualify as "grave" within the meaning of the newly amended Workers' Compensation Law § 11.
[2] Under the circumstances, little weight should be accorded to the post-passage opinions of the Department of Insurance and the Workers' Compensation Board concerning the reach of the legislation (see, Mem of Workers' Compensation Board, Susan Gravlich, Secretary, dated Aug. 8, 1996, Bill Jacket, L 1996, ch 635, at 2; Letter of Department of Insurance, Edward Muhl, Superintendent, dated Aug. 9, 1996, Bill Jacket, L 1996, ch 635, at 8).
[3] The Compensation Insurance Rating Board estimated that the change in employer liability will save employers approximately 3.2% in premium (see, Report of "New York State Assembly Majority Task Force on Workers' Compensation Reform", at 31).
9
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149 N.Y. 117
CHARLES M. TOMPKINS et al., Appellants, v. CHARLES HUNTER et al., Respondents. New York Court of Appeal
Argued February 24, 1896 Decided April 7, 1896
William F. Cogswell for appellants. The transfer made by Hunter to the bank, one of his creditors, constituted a general assignment for benefit of all the creditors. (White v. Cotzhausen, 129 U.S. 329; Krebs v. Ewing, 22 F. 693; Freund v. Gaegerman, 26 F. 812; Bergen v. Varrelmann, 127 N.Y. 281; Manning v. Beck, 129 N.Y. 1; Maass v. Falk, 146 N.Y. 34; Union Bank v. K. C. Bank, 126 U.S. 223; Abegg v. Schwabb, 7 N.Y. Supp. 46; Spelman v. Freedman, 54 Hun, 409; F. Nat. Bank v. Bard. 13 N.Y.S. 688.)
Edward Harris for respondent First National Bank of Penn Yan. The defendant Hunter had a right to sell his property to one of his creditors, notwithstanding the fact that he knew himself to be insolvent, and had concluded to discontinue *Page 118 his business. (Laws of 1877, chap. 466; 1 R. S. 603, § 4; Varnum v. Hart, 119 N.Y. 101; Manning v. Beck, 129 N.Y. 15; Karst v. Gane, 136 N.Y. 321; McNaney v. Hall, 86 Hun, 415; Weber v. Michigan, 131 Ill. 520; Farwell v. Nilsson, 133 Ill. 45.)
John T. Knox for respondents Hunter. Plaintiffs' contention that the transfer made by the defendant Hunter to the defendant bank is illegal, because the effect of it is to violate that provision of the General Assignment Act which forbids preference beyond one-third in value of the assigned estate, is erroneous, as the deeds and bill of sale were not in contravention of that act, and such statute has no application to this case. (Dudley v. Danforth, 61 N.Y. 626; R. W. Co. v. Fielding, 101 N.Y. 504; Hine v. Bowe, 114 N.Y. 350; Woodworth v. Hodgson, 35 N.Y. S. R. 964; 129 N.Y. 667; Manning v. Beck, 129 N.Y. 1; C. N. Bank v. Seligman, 138 N.Y. 435; Maass v. Falk, 146 N.Y. 34; Commercial Bank v. Bolton, 87 Hun, 547.)
MARTIN, J.
On and prior to April 19, 1890, Charles Hunter was engaged in business as a grocer and produce dealer in the village of Penn Yan, N.Y. The plaintiffs obtained judgments against him and issued executions thereon, which were returned unsatisfied before the commencement of this action. The judgments were for debts which had accrued before the nineteenth of April, 1890. On that day Hunter had determined to discontinue his business and proposed to the president of the First National Bank of Penn Yan to sell and convey to the bank all his property, real and personal, not exempt from levy and sale on execution, in payment of his liabilities to it, so far as it was sufficient for that purpose. This proposition was accepted, and on the twenty-first day of the same month Hunter conveyed to the bank all his real estate by deed and transferred to it by a bill of sale all his personal property, not exempt from levy and sale upon execution, including all the
10
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debts which were due or owing *Page 119 to him. The bank received this property at the agreed price of $21,790.70, applied that sum upon the debts of Hunter, and surrendered to him his notes therefor, except as to an overdraft for a small amount and the sum of $1,636.33, which was applied in part payment of a note for a larger amount.
The negotiations between Hunter and the bank, which preceded the execution of the deed and bill of sale, had reference to a sale by him to it of the property therein described, and the transfers made by him were intended as an absolute sale and transfer thereof by Hunter to the bank in payment and satisfaction of his indebtedness to it to the extent of the value of the property transferred. The price agreed to be paid was the full value of the property. The bank immediately took and continued in the possession of the property.
The defendant Hunter did not make, and at no time contemplated making any general assignment for the benefit of his creditors. The negotiations which resulted in the execution of the deed and bill of sale, as well as the deed and bill of sale, were made in good faith and only with a view to the sale of his property by Hunter to the bank in payment of his indebtedness. When the negotiations for the purchase and sale of this property took place between the bank and Hunter, the latter had determined to discontinue his business, to give up the dominion of his property to the bank in payment of his liabilities to it so far as it would go, and so stated to its president. Hunter was at the time insolvent, and the president of the bank knew his financial condition.
This action was in the nature of a creditor's bill, and was brought to set aside the conveyances made by the defendant Hunter to the defendant, The First National Bank of Penn Yan. The alleged grounds of action were: 1. That the conveyances and transfers mentioned were made and received with an intent to hinder, delay and defraud the creditors of the defendant Hunter; 2. That they were made as a part of a collusive and fraudulent conspiracy to prevent the collection of the plaintiffs' judgments; and 3. That they were, and each was, intended as a fraud upon or evasion of chapter 466 of *Page 120 the Laws of 1877, as amended in 1887, and were given and received with an intent to give the bank an unlawful preference.
On the trial the sole ground relied upon by the plaintiffs was, that these conveyances effected a preference which is forbidden by the General Assignment Act and were void, so far at least, as the property transferred exceeded the value of one-third of all the property owned by Hunter at that time. The court, however, held that they did not constitute a preference forbidden by that act but were valid, and directed a judgment dismissing the plaintiffs' complaint with costs.
The appellants strenuously insist that the statute of 1887 was intended, and should be construed to include any and every transfer or conveyance made by an insolvent debtor entirely independent of the question whether he, at the time or subsequently, made or intended to make a general assignment for the benefit of his creditors, and hence, that both the trial court and the General Term erred in holding that the conveyances in question were valid. The appellants argue that the act of 1887 is a remedial statute which should be reasonably construed to accomplish its intended purpose, and that its purpose is to prohibit an insolvent debtor from preferring his creditors to an amount in excess of one-third of his estate, although no general assignment is made or contemplated. The substance of their claim is that this act should be construed as in the
11
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nature of a bankrupt law, and so as to apply to the estate of an insolvent debtor, without regard to the character of the transfer made. The statute, so far as material to this question, is as follows: "In all general assignments of the estates of debtors for the benefit of creditors hereafter made any preferences created therein * * * shall not be valid except to the amount of one-third in value of the assigned estate left after deducting, etc. * * *." (Laws 1887, ch. 503.)
That this act should receive a reasonable construction, and one which will accomplish its intended purpose, there can be no manner of doubt. Thus, at the threshold of this examination, *Page 121 it becomes necessary to ascertain its real purpose and effect. In determining that question, it is proper to consider the condition of the law upon the subject when the amendment of 1887 was passed, and thus ascertain the mischief or defect it was designed to remedy. At common law as it existed before there was any statute on the subject in this state, an insolvent debtor possessed the right to make a voluntary assignment for the benefit of his creditors, and to prefer such of them as he deemed best, without any limitation or restriction whatever. The first statute in this state which related to this class of assignments was passed in 1860. (Laws 1860, ch. 348.) It was several times amended, and as amended remained in force until 1877, when a new and somewhat more comprehensive act was passed and that of 1860, as amended, was repealed. (Laws 1877, ch. 466.) Neither of these statutes in any way limited or restricted the right of an insolvent debtor to prefer such of his creditors as he desired. The first and only direct limitation of that right is contained in the amendment of 1887. The statutes of 1860 and 1877 recognized the right of a debtor to make such an assignment, provided the manner in which it should be executed, established a course of procedure for carrying into effect and enforcing the trust thereby created, but did not contain any substantive law. In 1884 the statute of 1877 was amended by adding a new section creating a preference in favor of employees for their wages, and in 1887 the amendment in question was enacted.
Prior to the amendment of 1887, an insolvent debtor had the right to sell and transfer the whole or any portion of his property to one or more of his creditors in payment of, or to secure, his debts, when that was his honest purpose, although the effect of the sale or transfer would be to place his property beyond the reach of other of his creditors and render their debts uncollectible. (Murphy v. Briggs, 89 N.Y. 446, 452; Knapp v. McGowan, 96 N.Y. 75, 86; Remington Paper Co. v.O'Dougherty, 36 Hun, 79; affirmed, 99 N.Y. 673; Williams v.Whedon, 109 N.Y. 333, 337; Citizens' Bank *Page 122 v. Williams, 128 N.Y. 77; McNaney v. Hall, 86 Hun, 415, 419.) That right existed at common law as an incident to the right of property. It was as complete and perfect as the right to acquire and enjoy it. Indeed, it was upon the principle that a person might acquire, enjoy and dispose of his property that his right to make a general assignment rested.
While the law was in this condition, the legislature amended the General Assignment Act, which, as its title indicates, was a statute that related solely to voluntary assignments and to no other transactions or conveyances. It had then become usual for debtors making general assignments to prefer creditors to an extent that was deemed inequitable and unjust, and it was to prevent that mischief that the amendment of 1887 was passed. That act did not in terms include any conveyance or transfer other than a general assignment. When it was passed, the character of such an assignment was well understood. There is a broad and well defined distinction between such an assignment and a deed or bill of sale. The former is a transfer by a debtor of his property
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to another in trust to sell, convert it into money, and distribute the proceeds among his creditors. It implies a trust, and contemplates the intervention of a trustee. The others import an absolute sale and transfer of the title, to be held and enjoyed by the purchaser without any attending trust. As the nature of such an assignment was then as well understood as that of any other particular form of conveyance or transfer, it is manifest that it was the purpose of the statute to limit the right of an insolvent debtor to dispose of his property only to cases where he made a general assignment for the benefit of his creditors, and it is not reasonable to suppose that the legislature intended to include in that act any other conveyance or transfer. If it had, such conveyances or transfers would have been mentioned in the statute, or it would have contained some such general provision to that effect as exists in relation to insolvent corporations. (Laws 1892, ch. 688, § 48.)
In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words *Page 123 employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning. (Newell v. People, 7 N.Y. 9, 97; McCluskey v. Cromwell,11 N.Y. 593, 601; People ex rel. Brown v. Woodruff, 32 N.Y. 355,364; Matter of Miller, 110 N.Y. 216, 222.) In the case ofPeople ex rel. v. Woodruff, it was said: "It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen." Again, in the Matter of Miller, where it was contended that the reason and equity of a statute brought within its operation certain parties not mentioned in it, it was said: "If that be so, it constitutes no reason for controlling its language, although it might seem that the legislature would have provided for such a case had their attention been directed to it." It is not the duty of courts to disregard the plain words of a statute, even in favor of what may be termed an equitable construction, in order to extend it to some supposed policy not included in the act. (Karst v. Gane, 136 N.Y. 316, 321.) As this statute changed the common law as it existed when it was passed, it will be held to abrogate it only so far as the clear import of the language absolutely requires. (Fitzgerald v. Quann, 109 N.Y. 441.) Applying these rules to the construction of the statute under consideration, it follows that its plain words cannot be disregarded or its effect extended beyond the clear import of the language employed.
This statute has none of the attributes of a general bankrupt law, under which a debtor may be compelled to assign his property for the benefit of his creditors. No such law exists in this state as to an individual debtor. If he makes an assignment, he may prefer his creditors only to the extent of one-third of his estate. If he makes none, then it is obvious that the statute of 1887 has no application, and he may dispose of his property as he sees fit to secure or pay his honest *Page 124 debts. If he cannot be compelled to assign, and does not do so voluntarily, we find no law which prohibits him from selling and conveying his property for that purpose. The language of this act indicates a purpose to prohibit a debtor from preferring his creditors beyond the limit mentioned if he attempts to create such preference in a particular and specified manner, but indicates no purpose to otherwise deprive him of his property or limit his control over it. In other words, the law applies to the method of transfer, and not to the property of the debtor either while it remains in his hands or when it has been conveyed otherwise than by a voluntary
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assignment. If the contention of the appellants was sustained, its practical result would be to prevent an insolvent debtor from paying his debts except to the extent of one-third of the value of his property, and to impound the remainder in his hands until some vigilant creditor should reach it by legal process, which would, to some extent, constitute a suspension of his right of property in two-thirds of his estate. It is clear that such was not the object or purpose of the statute.
The amendment of 1887 has been several times considered by this court. In Berger v. Varrelmann (127 N.Y. 281), where a debtor confessed judgment in favor of a creditor in contemplation of making an assignment for the benefit of his creditors, the confession of judgment having been a mere instrumentality employed to give preference to a particular creditor in excess of the limitation of the statute and the creditor having had knowledge of the fact, and the purposes of the confession, the Second Division held that it was void under the statute of 1887. The same doctrine was held in Spelman v. Freedman (130 N.Y. 421). This court subsequently recognized the correctness of those decisions upon the ground that in each case the confession of judgment was a part of a plan or scheme which included the making of a general assignment and was to be construed as a part of it, and, hence, was within the prohibition of the assignment act. (Manning v. Beck, 129 N.Y. 1; C.N. Bank v. Seligman,138 N.Y. 435; Abegg v. Bishop, 142 N.Y. 286.) In the Manning *Page 125 case this court held that a creditor who had procured a bill of sale from an insolvent debtor in payment of and as security for an honest and subsisting debt, in ignorance of any intention upon the part of the debtor to thereafter make an assignment, could hold the property transferred although it exceeded one-third of the assets of the vendor. In discussing the question in that case, PECKHAM, J., said: "But the statute does not and was not intended to prevent a creditor from obtaining payment of or a security, and thereby a preference for his debt, even from an insolvent debtor." In further discussing the question he adds: "The debtor might also neglect to make an assignment and then it would look as if the acts of preference would be legal. The statute of 1887, at any rate, does not cover such a state of facts, and we do not feel at liberty to enlarge its provisions by construction so as to bring such facts within the condemnation of the statute. If it be thought good policy so to do, the legislature, and not this court, is the body to which application should be made to effect such change in the law." In C.N. Bank v. Seligman (138 N.Y. 435, 445), the debtors made an assignment, giving certain creditors preference in excess of one-third of their estate, and allowed other creditors to obtain judgments upon offers and acceptances. In discussing the effect of the judgments, ANDREWS, Ch. J., said: "The judgments and executions constituted and could constitute no preference under the act of 1887. If no assignment had been made the judgments could not have been assailed by the other creditors." We are unwilling to extend the doctrine of the Berger and Spelman cases so as to include a case like this. To do so, would be to apply the statute to a case not included within its language or apparent purpose. Such a construction would greatly extend the effect of the statute, would doubtless include many cases where its application would be inequitable and unjust, and would tend to disarrange and unsettle many transactions which are authorized under the law as it is now supposed to exist. It is manifest that neither the letter nor the spirit of the act of 1887 renders it applicable to a case like this. It is *Page 126 the province of this court to construe statutes, but not to enact them. If, for any reason, public policy requires a law prohibiting insolvent debtors from securing or paying their creditors, or that shall limit the amount or proportion of their property which shall be devoted to that purpose, the Legislature and not this court must be relied upon for its enactment. As there is no claim here that the
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transfers by Hunter to the bank were made with an intent to hinder, delay or defraud the creditors of the former and void under the statute relating to that subject (2 Rev. St. 137, §§ 1-8), or that they were void for any reason other than because in contravention of the statute of 1887, it follows, both upon principle and authority, that the judgment in this case should be upheld.
The learned counsel for the appellants earnestly urges that the case of White v. Cotzhausen (129 U.S. 329) should be regarded as high if not a controlling authority upon this question. We do not deem it necessary to discuss that case, further than to say that it was considered by this court in the Manning case, that the statute involved in that case was held to be unlike ours, and that the White case was not then followed by this court. It may, however, be observed that the statute of Illinois relating to assignments for the benefit of creditors was under consideration in the White case, that the decision in that case was based upon a decision of the highest court of that state, and was asserted to be in accordance with it. An examination of the later cases in the state of Illinois discloses that its courts do not construe the statute as it was construed in the White case, but expressly decline to be controlled by that decision. (Weber v.Mick, 131 Ill. 520; Farwell v. Nilsson, 133 Ill. 45.) Upon the question of the construction and effect of a statute of a state regulating assignments for the benefit of creditors, the decisions of its highest court are regarded as of controlling authority in the courts of the United States. (Chicago UnionBank v. Kansas City Bank, 136 U.S. 223.) As it is manifest from the decisions of the highest court of the state of Illinois that the decision in the White case was based upon a misapprehension of the *Page 127 former decisions in that state as to the effect of the statute, the White case has little weight as an authority upon the question involved in this case.
We are of the opinion that the statute of 1887 has no application to the facts in this case, and that the judgment of the General Term should be affirmed, with costs.
All concur, except Haight, J., not sitting.
Judgment affirmed.
15
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40 N.Y.2d 560 (1976)
James C. Bender et al., Appellants, v. Jamaica Hospital, Defendant, and J. B. Manley et al., Respondents.
Court of Appeals of the State of New York.
Submitted September 16, 1976. Decided October 26, 1976.
Paul D. Rheingold, New York City, for appellants.
W. Bernard Richland, Corporation Counsel (Irving Cohen and L. Kevin Sheridan of counsel), New York City, for respondents.
Chief Judge BREITEL and Judges JASEN, JONES, WACHTLER, FUCHSBERG and COOKE concur.
GABRIELLI, J.
The issue before this court is whether the 561*561 New York City Health and Hospitals Corporation is a municipal corporation within the meaning of section 50-d of the General Municipal Law. In May, 1969 the New York City Health and Hospitals Corporation was created to provide the financial and managerial flexibility necessary for the proper care and treatment of the ill and infirm within New York City, particularly those who can least afford it (L 1969, ch 1016, as amd); and the legislation establishing this organization declared it to be "a body corporate and politic constituting a public benefit corporation" (New York City Health and Hospitals Corporation Act, § 4, subd 1; L 1969, ch 1016, as amd). The plaintiffs instituted the instant malpractice actions against the respondent doctors for alleged negligent treatment at Queens General Hospital, a hospital operated by the corporation. The doctors raised as an affirmative defense that the plaintiffs failed to comply with the provisions of sections 50-d and 50-e of the General Municipal Law in that plaintiffs did not file a notice of claim on the doctors as required. Section 50-d provides that every municipal corporation shall assume the liability for malpractice of any physician who renders medical services without receiving compensation at public institutions maintained by that municipal corporation. Where section 50-d is applicable, ultimate financial responsibility rests not with the treating physician but with the appropriate municipal corporation and, under subdivision 2 of that section, no action will lie unless a notice of claim is served in compliance with section 50-e of the General Municipal Law. In this case, no notice of claim was served on the individual doctors. Plaintiffs moved to strike the affirmative defense on the ground that defendants were not employed by a public institution maintained by a municipal corporation as defined under the statute.
We hold that the New York City Health and Hospitals Corporation is not a municipal corporation within the meaning of section 50-d of the General Municipal Law and, thus, the
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affirmative defense must fail. Section 2 of the General Municipal Law defines a municipal corporation for purposes pertinent to our inquiry as including "only a county, town, city and village." The New York City Health and Hospitals Corporation, established as a public benefit corporation obviously does not fit within this definition. Where the statute is clear and unambiguous on its face, the legislation must be interpreted as it exsits (McKinney's Cons Laws of NY, Book 1, 562*562 Statutes, § 76; New Amsterdam Cas. Co. v Stecker, 3 N.Y.2d 1; Meltzer v Koenigsberg, 302 N.Y. 523). Absent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute (New Amsterdam Cas. Co. v Stecker, supra; Matter of Patrolmen's Benevolent Assn. of City of Buffalo v City of Buffalo, 50 AD2d 101) and must apply the plain import of the statute (Matter of Trustees of N. Y. & Brooklyn Bridge, 72 N.Y. 527). Although it may well be that the Legislature intended to confer on the corporation the status of a municipal corporation within the meaning of section 50-d, as respondents argue, no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal (People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, 208 N.Y. 421). The courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them (Bright Homes v Wright, 8 N.Y.2d 157).
The use of the word "only" in the definition of municipal corporation creates a certain and definite restriction on the meaning of that term, which precludes the judicial inclusion of a public benefit corporation. Although the New York City Health and Hospitals Corporation Act specifically incorporated certain provisions of the General Municipal Law (New York City Health and Hospitals Corporation Act, § 20, subd 2; L 1969, ch 1016, as amd, incorporating the provisions of section 50-e of the General Municipal Law in actions against the corporation; see Bender v New York City Health & Hosps. Corp., 38 N.Y.2d 662) and defined the corporation as a municipality for specific purposes (New York City Health and Hospitals Corporation Act, § 4, subd 4; L 1969, ch 1061, as amd, providing that for purposes of conflicts of interest of its directors the corporation shall be a municipality), the act neither incorporated section 50-d nor redefined the corporation for purposes of that section. Absent such provisions the statute is clear and the corporation cannot be judicially deemed a municipal corporation within the meaning of section 50-d.
The order of the Appellate Division should be reversed, with costs, and the motion to strike the first affirmative defense should be granted.
Order reversed, with costs, and plaintiffs' motion to strike the first affirmative defense granted. Question certified answered in the negative.
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85 N.Y.2d 382 (1995) 649 N.E.2d 1145 626 N.Y.S.2d 1
In the Matter of Chemical Specialties Manufacturers Association et al., Appellants, v. Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
Court of Appeals of the State of New York.
Argued October 25, 1994 Decided February 9, 1995.
McKenna & Cuneo (Charles A. O'Connor, III, and Thomas B. Johnson, of the District of Columbia Bar, admitted pro hac vice, of counsel), and Hinman Straub, Pigors & Manning, P. C., Albany (Eileen M. Considine and Beverly Cohen of counsel), for appellants.
G. Oliver Koppell, Attorney-General, Albany (Maureen F. Leary, Jerry Boone, Peter F. Schiff and Val Washington of counsel), for respondents.
Chief Judge KAYE and Judges SIMONS, TITONE and SMITH concur with Judge LEVINE; Judge CIPARICK dissents in a separate opinion in which Judge BELLACOSA concurs.
386*386LEVINE, J.
In response to a report by the New York Department of Health recommending that the Department of Environmental 387*387 Conservation (DEC) promulgate a regulation limiting the concentration of a pesticide called DEET (N, N-diethyl-m-toluamide) in products sold in New York, DEC notified DEET product registrants of a proposed rule that would amend the existing list of restricted use pesticides contained in 6 NYCRR 326.2 (b). The proposed rule would have added DEET in concentrations greater than 30% to the list. At that time, DEC issued a SEQRA notice in the form of a Determination of Non-Significance regarding the proposed rule making. DEC then published a Notice of Proposed Rule Making which contained a regulatory impact statement, and the rationale for the proposed rule. DEC notified parties holding registrations for high concentration DEET products about the proposed rule and of a legislative public hearing that would be held to accept public comment on the proposed rule. The hearing was held on July 23, 1991, and numerous oral and written comments were submitted, including submissions by petitioners Chemical Specialties Manufactures Association. After the hearing, DEC solicited information from all high concentration DEET registrants regarding any potential impact the proposed rule would have on their businesses. DEC also accepted comments from other agencies, other manufacturers, and the public during the public comment period.
After publishing reports summarizing the legislative hearing and public comments, responding to the public comments, and issuing a revised negative SEQRA declaration, DEC issued a Notice of
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Adoption of the proposed rule. The DEET regulation, as adopted, prohibits use, sale or distribution of pesticide products which contain in excess of 30% DEET, or 33% DEET for controlled release formulas (6 NYCRR 326.2 [b] [10]). Products containing 30% or less DEET concentration (or less than 33.33% in controlled release formulas) continue to be classified for general use (id.; see also, ECL 33-0101 [19]). After publishing the rule, DEC advised registrants of high concentration DEET products that their products would no longer comply with the DEET regulation and that the product registrations would be canceled as of the effective date of the regulation.
Upon receipt of the notice of cancellation, the affected registrants requested that DEC refer the cancellation decision to an independent advisory committee, as is required under title 7 of ECL article 33. DEC denied the request.
388*388Petitioners, a trade organization of chemical manufacturers, DEET product registrants, and a user of high concentration DEET products, commenced this action seeking declaratory and injunctive relief. Petitioners challenge the validity of the DEET regulation on the grounds that (1) respondents lacked statutory authorization to ban pesticide products by rule making; (2) respondents lacked statutory authority to effect cancellation of pesticide registrations by the DEET rule; (3) adoption of the DEET rule was arbitrary and capricious; (4) adoption of the DEET rule violated the State Environmental Quality Review Act (ECL art 8) (SEQRA); and (5) the DEET rule violates the Commerce Clause of the United States Constitution.
Supreme Court invalidated the rule on the ground that respondents exceeded their rule-making authority. The Appellate Division modified, holding that the rule was valid but that the rule does not and cannot automatically cancel the existing pesticide registrations (197 AD2d 314). The Appellate Division further held, however, that in any such proceeding to cancel the registration of high DEET concentration pesticide products, "[t]he registrant cannot challenge the validity of the DEET regulation" (id., at 320).
Petitioners appealed as of right to this Court on constitutional grounds. We now affirm the order of the Appellate Division.
I.
ECL article 33 contains separate and independent mechanisms by which pesticide use, sale, and distribution are regulated throughout the State. At issue in this case are title 3, containing the general rule-making power of the Commissioner, and title 7, the individual adjudicatory rights of pesticide product registrants.
Title 3 of ECL article 33 vests the Commissioner with exclusive jurisdiction over "all matters pertaining to the distribution, sale, use and transportation of pesticides" (ECL 33-0303 [1]). Specifically, it authorizes the Commissioner "[t]o promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the [C]ommissioner deems appropriate to fully protect the public interest" (ECL 33-0303 [3] [d]). A "restricted use pesticide" is defined as one "[w]hich the 19
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[C]ommissioner finds is so hazardous to man or other 389*389 forms of life that restrictions on its sale, purchase, use, or possession are in the public interest" (ECL 33-0101 [42] [b]). Additionally, the Commissioner is authorized to "adopt, promulgate and issue such rules and regulations as he [or she] may deem necessary to carry out and give full force and effect to the provisions of this article" (ECL 33-0303 [3] [e]).
Title 7 of article 33 governs registration of "[e]very pesticide which is used, distributed, sold, or offered for sale within this state or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside this state" (ECL 33- 0701). Registration is a prerequisite to a pesticide product's use, distribution, or sale in this State (id.). The Commissioner is required to register a pesticide if "the composition of the pesticide is such as to warrant the proposed claims for it, and if the pesticide and its labeling and other material * * * comply with the requirements of [the] article" (ECL 33-0709). An individual's registration of a pesticide may be canceled "whenever it does not appear that the article or its labeling or other material * * * complies with the provisions of this article" (ECL 33-0713 [1]). However, "[w]henever the [C]ommissioner determines that registration of a pesticide should be canceled" (ECL 33-0713), the registrant is entitled to certain procedural rights including notice (ECL 33-0713 [2]), time to make necessary corrections (ECL 33-0713 [3]); referral to an advisory committee (ECL 33-0715); and an adjudicatory public hearing (ECL 33-0717).
II.
Petitioners' main contentions on this appeal are that DEC lacks statutory authority to ban pesticide products by rule making, and, alternatively, that title 3 of ECL article 33 should not be read as authorizing a rule which would preclude current registrants of high concentration DEET products from challenging the underlying scientific bases for the DEET rule in their statutorily required adjudicatory cancellation of registration proceedings. We disagree with both assertions.
First, title 3 of ECL article 33, and particularly sections 33-0303 (3) (d) and (e), contain broad legislative delegations to the Commissioner to act against dangerous pesticides, even to ban them outright, by means of legislative rule making. Specifically, title 3 was enacted in 1970 as part of chapter 732 (L 1970, ch 732) which (1) defined a restricted use pesticide 390*390 (ECL 33-0101 [42] [b] [Agriculture and Markets Law former § 148 (22) (B)]); (2) gave the Commissioner authority to "promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the [C]ommissioner deems appropriate to fully protect the public interest" (ECL 33-0303 [3] [d] [Agriculture and Markets Law former § 150 (1) (4)]); and (3) created a permit system as the exclusive means of selling, using or possessing restricted use pesticides (ECL 33-0901 [Agriculture and Markets Law former § 149]).
Supporting the express language of chapter 732, the legislative history clearly indicates an intent to authorize a complete ban on the use of dangerous pesticides under certain circumstances. The Executive Memorandum in support of chapter 732 states that the "Commissioner may refuse to issue * * * a permit [for the sale, purchase, possession or use of a restricted use pesticide] for a number of reasons, including * * * failure to comply with the law or rules and regulations, and
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inadequate knowledge or experience concerning the use and application" thereof (Mem of State Executive Dept, 1970 McKinney's Session Laws of NY, at 2987). And in the Governor's Message of Approval of chapter 732, he stated that a permit to sell or use a restricted use pesticide "must [be] refuse[d] * * * for use of a particular pesticide if there is a reasonable, less dangerous alternative available, capable of performing the task required" (1970 NY Legis Ann, at 513 [emphasis in original]).
Thus, both the express statutory language and the legislative history of chapter 732 of the Laws of 1970 contradict the petitioners' suggestion, adopted by the dissent, that title 3 of ECL article 33 was intended merely to "improve the Commissioner's ability to control misuse of registered pesticides by sellers, distributors, farmers, and other applicators." (Dissenting opn, at 402.)
We are similarly unpersuaded by petitioner's alternative argument, adopted by the dissent, construing ECL article 33 to prevent the exercise of the Commissioner's rule-making power in a way that would resolve factual issues that would otherwise be litigated in an adjudicatory registration cancellation hearing under title 7, e.g., whether high concentrations of DEET are unsafe.
Under settled principles of administrative law, a regulation adopted in a legislative rule-making proceeding can indeed 391*391 foreclose litigation of issues in later statutorily required individual adjudicatory proceedings. Thus, as stated by a leading authority on administrative law:
"A legislative rule can have the effect of eliminating what otherwise would be a party's right to a hearing to resolve contested issues of fact. A rule can have this effect by redefining the nature of a substantive right in a manner that makes the right no longer contingent on resolution of those factual issues. Indeed, this may be the single most important effect of legislative rules. Many agencies employ them routinely to serve this purpose." (1 Davis and Pierce, Administrative Law § 6.5, at 250 [3d ed].)
Thus, precisely opposite to the position urged by petitioners, the general administrative law principle is that a regulation adopted in a legislative rule-making proceeding, such as the DEET rule, can apply to foreclose litigation of issues in any individual adjudicatory proceeding provided for under the enabling legislation. The Supreme Court reaffirmed this doctrine in Mobil Oil Exploration v United Distrib. (498 US 211, 228):
"Time and again, `[t]he Court has recognized that even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration.' Heckler v. Campbell, [461 US 458, 467]; Permian Basin, [390 US 747, 774-777]; FPC v. Texaco Inc., 377 U. S. 33, 41-44 (1964); United States v. Storer Broadcasting Co., 351 U. S. 192, 205 (1956). The Commission's approval conditions establish, and its findings confirm, that the abandonment at issue here is precisely the type of issue in which `[a] contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding.' Heckler v. Campbell, supra, at 467."
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That petitioners have a cognizable economic interest in their pesticide product registrations does not change this result. A registration is for administrative law purposes nothing more than a license or "similar form of permission required by law" (State Administrative Procedure Act § 102 [4]), 392*392 in this case, permission to sell or otherwise distribute a pesticide product. The case law is absolutely clear that statutory rights to a full adjudicatory hearing before denial or withdrawal of all such forms of permission may be trumped by the exercise of agency rule- making authority (see, Weinberger v Hynson, Westcott & Dunning, 412 US 609 [as to statutory adjudicatory hearing required before agency withdrawal of approval of new drug marketing application]; Federal Power Commn. v Texaco, 377 US 33 [as to adjudicatory hearing required before denial of a certificate of public convenience and necessity to sell natural gas]; United States v Storer Broadcasting Co., 351 US 192 [as to adjudicatory hearing required before denial of a broadcasting license]; Air Line Pilots Assn. v Quesada, 276 F.2d 892 [2d Cir] [as to adjudicatory hearing required before cancellation of a commercial airline pilot's license]). New York decisional law is completely consistent with these authorities (see, Matter of Kupferman v New York State Bd. of Social Welfare, 60 AD2d 674, affd on opn below 47 N.Y.2d 738; Matter of Parochial Bus Sys. v Parker, 40 AD2d 1062,appeal dismissed 32 N.Y.2d 901 [citing Air Line Pilots Assn. v Quesada, supra]).
Moreover, none of the enabling statutes at issue in these cases contained an express delegation of authority to make rules that settle factual issues that otherwise would be litigated in an adjudicatory hearing. Rather each contained a broad grant of rule-making authority with a fact- finding component. Similarly, article 33 gives the Commissioner authority to promulgate a list of restricted use pesticides (ECL 33-0303 [3] [d]) which are, by definition, "pesticide[s] * * * [w]hich the Commissioner finds [are] so hazardous to man or other forms of life that restrictions on [their] sale, purchase, use, or possession are in the public interest" (ECL 33-0101 [42] [b] [emphasis added]). Thus the legislatively authorized power to declare a pesticide restricted is necessarily a fact-finding power vested in the Commissioner, which is in this way no different from the rule-making powers at issue in the abovecited cases.
Nor does the legislative history to the various provisions of article 33 compel a deviation from the basic rule that a broad grant of rule-making power standing side-by-side with individual adjudicatory rights in an enabling statute — each with its own distinctive role — includes the power to resolve by rule making a question of fact that would otherwise be at issue in an adjudicatory proceeding. Petitioners argue that because 393*393 ECL article 33 was intended to conform with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 USC §§ 136- 136y), and under FIFRA the Administrator may not decide by rule issues of safety and effectiveness of a pesticide, the Commissioner may not make such determinations under article 33. We find this argument unpersuasive.
To begin with, FIFRA contains no statutory counterpart to the specific rule-making power to restrict or limit pesticide use under ECL 33-0303 (3) (d) and title 9 of ECL article 33, without any kind of adjudicatory hearing. In this very significant respect, the ECL has no "parallel" in FIFRA (dissenting opn, at 406). Also, in contrast to the New York statutory scheme, the Environmental Protection Agency's (EPA) authority under FIFRA to designate a pesticide product as a restricted use pesticide is exclusively limited to classifying restricted use
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for registration purposes (7 USC § 136a [d] [1] [A]), and under FIFRA a change in classification to restricted use with respect to a previously registered pesticide gives rise to all of the same adjudicatory remedies as does a cancellation of registration (7 USC § 136a [d] [2]). There are no comparable provisions in the New York statutory scheme.
Moreover, all of the legislative history of ECL article 33 pointing to its conformity with FIFRA emanates from enactment of the predecessor version of title 7 of article 33 in 1965, a year after FIFRA was amended in substantially its present form (L 1965, ch 228, amending Agriculture and Markets Law former § 149-a). On the other hand, the provisions of title 3 of article 33 upon which DEC relies for rule-making authority to ban the use of pesticides containing more than 30% DEET were added five years later in 1970 (L 1970, ch 732, amending Agriculture and Markets Law former art 11). That history is indicative that the Legislature intended to create an independent, new, swift and decisive means to restrict and in some instances prohibit the uses of dangerous pesticides. Thus, the Assembly Sponsor stated, "[p]assage of this bill presents the quickest legal way for the future to place persistent pesticides under complete control" (Letter from Member of Assembly Hardt, Bill Jacket, L 1970, ch 732, at 1). The most pertinent legislative history of the enabling statute here, therefore, not only fails to support petitioners' interpretation, it actually contradicts it.
The dissenters appear to have a different interpretive theory upon which to base their argument that the Commissioner's 394*394 rule-making power under title 3 does not extend to foreclose any factual issues in a registration cancellation adjudicatory hearing, allowing relitigation — and possibly inconsistent results — of rule-making determinations with registrants' individual proceedings. Essentially pointing to language in and legislative history of title 7 regarding its conformity to FIFRA, the dissent argues that the omission in title 3 of the FIFRA procedural rights of a registrant before its product can be designated a restricted use pesticide was an unintended legislative oversight (dissenting opn, at 406) which this Court can remedy by implying the FIFRA advisory committee and adjudicatory procedures through statutory interpretation. This theory is flawed in several respects. First, it anomalously applies the legislative history of the 1965 title 7 State pesticide registration statute to interpret a statutory agency rule-making authority to ban dangerous pesticides enacted five years later. It also violates any number of canons of statutory construction. "[N]ew language cannot be imported into a statute to give it a meaning not otherwise found therein" (McKinney's Cons Laws of NY, Book 1, Statutes § 94, at 190). Moreover, "a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact" (id., § 363, at 525). Also, an "inference must be drawn that what is omitted or not included was intended to be omitted and excluded" (id., § 240, at 412).[1]
In sum, title 3 confers broad rule-making authority on the Commissioner. Acting pursuant to this authority, the Commissioner has promulgated a rule of general applicability which bans DEET in high concentrations. The Commissioner has not, however, canceled the registrations of high concentration DEET products. To do so, we all agree, he must act pursuant to title 7 cancellation of registrations procedures. In title 7 proceedings petitioners can raise issues, including scientific issues, particularly affecting them, but cannot relitigate the underlying issue already determined by the Commissioner exercising his rule-making authority.
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395*395This result gives full effect to title 3 and title 7, and flows naturally from a reading of article 33 in its entirety. It does not eviscerate, modify, bypass, override or repeal (expressly or impliedly) title 7. Rather title 7 remains the only means by which the Commissioner may cancel an existing registration. In those proceedings, petitioners may challenge whether their product "or its labeling or other material required to be submitted complies with [article 33]" (ECL 33- 0713 [1]) through an adjudicatory hearing, by seeking the opinion of an advisory committee, or both. Thus cancellation need not be automatic, and undoubtedly individual issues may sometimes be scientific. Registrants may not, however, challenge and relitigate the rules that have been validly promulgated pursuant to a separate provision of article 33. They are bound by those rules — just as other registrants, the agency itself and the general public are bound by those rules.
Thus we adhere to the holding of the Appellate Division, that the registrations of high DEET concentration products must be canceled through the title 7 process, but that in such proceedings the scientific validity of the DEET rule may not be challenged because that holding is completely consistent with doctrine, precedent and the enabling statute.
III.
Two of petitioners' remaining objections to the DEET rule, i.e., that it is irrational and arbitrary and capricious and in violation of SEQRA (ECL art 8), are refuted by the same detailed factual submissions by the Commissioner contained in the record. Therefore, we shall address them together.
DEC's background documents and assessment of public comments detail 44 scientific studies and empirical data that indicate that use of high concentration DEET products may cause adverse health effects. In addition, the affidavit of Nancy Kim, PhD, the State Department of Health Director of the Division of Environmental Health Assessment, fully explains and documents the ample support for the conclusion that DEET in concentrations above 30% is dangerous to health, particularly to that of children. Specifically, the conclusion that high concentration DEET products are dangerous to children is supported by a World Health Organization technical report prepared by an expert committee on vector biology, an EPA published book (Morgan, Recognition and 396*396 Management of Pesticide Poisoning [4th ed]),[2] a United States Department of Defense study, a professor at Harvard School of Public Health, the medical directors of various poison control centers, and health officials from New Jersey, Connecticut, Massachusetts and Maine. Moreover, as Dr. Kim pointed out, petitioners, although invited to do so, provided no credible evidence to support their claims that a higher concentration of DEET would significantly increase its effectiveness as a deer tick repellant.
The affidavits of Dr. Kim and Dr. Dennis White, Director of the Arthropod-borne Disease Program and Director of the Tick-Borne Disease Institute for the State of New York, as well as the report by the Bureau of Toxic Substances Assessment of the New York State Department of Health, establish that the agency evaluated the dangers to health of higher concentrations of DEET, the evidence that the mosquito-repellant effectiveness of DEET in higher concentrations than 30% was not significantly enhanced, the evidence that low concentrations of DEET are 90%
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effective against ticks when used on clothing, and the lack of hard evidence one way or the other regarding DEET's effectiveness against deer ticks when used on human skin in high concentrations.
This Court's role in reviewing an agency action is not to determine if the agency action was correct or to substitute its judgment for that of the agency, but rather to determine if the action taken by the agency was reasonable (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 230- 235; New York State Assn. of Counties v Axelrod, 78 N.Y.2d 158, 166). Thus, the foregoing demonstrates that the record here contains sufficient evidence to provide a rational basis for the Commissioner's conclusion that possible detrimental side effects from the human use of high concentration DEET products outweigh possible benefits from their use. The Commissioner, therefore, did not act arbitrarily and capriciously in promulgating the DEET rule.
Moreover, petitioners' claim that DEC violated SEQRA by issuing a Determination of Non- Significance with regard to the environmental impact of the DEET rule also fails. It is well settled that "[i]n reviewing * * * SEQRA determinations 397*397 * * * we are limited to considering `whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion'" (Chinese Staff & Workers Assn. v City of New York, 68 N.Y.2d 359, 363 [quoting CPLR 7803 (3)]). Thus, we may not question the "desirability of any action or choose among alternatives, but [we must] assure that the agency itself has satisfied SEQRA, procedurally and substantively" (Matter of Jackson v New York Urban Dev. Corp., 67 N.Y.2d 400, 416). The relevant question before us, then, is whether the respondents "identified the relevant areas of environmental concern, took a `hard look' at them, and made a `reasoned elaboration' of the basis for their determination" (Chinese Staff & Workers Assn. v City of New York, supra, at 363-364). And although the requirement to produce an environmental impact statement is triggered by a relatively low threshold — if the action may have a significant effect on the environment (see, id., at 364-365) — "[a] conditional negative declaration is properly issued when the agencies have made a thorough investigation of the problems involved and reasonably exercised their discretion" (id., at 364; see also, Matter of United Petroleum Assn. v Williams, 102 AD2d 491, affd 65 N.Y.2d 708).
The record here, particularly the Kim and White affidavits and documents referred to therein as previously discussed, amply demonstrates that DEC identified the relevant area of environmental concern (the alleged possibility that the DEET rule could enhance the incidence of vector-borne Lyme Disease), and took a hard look at all the evidence available on the issue. Having taken this hard look, DEC could reasonably conclude that the DEET rule would not cause any significant environmental impact. That DEC considered the concern raised by petitioner's submissions is evidenced by the DEC's revised negative declaration, made after the legislative rule-making public hearing, which gave a reasoned elaboration of its determination that the DEET rule would have no significant impact on the environment. Thus, DEC established full compliance with statutory and court-imposed SEQRA requirements (see, Matter of Jackson v New York Urban Dev. Corp., 67 N.Y.2d 400, 417, supra).
Thus we also reject the dissent's SEQRA argument. In accusing DEC of failing to comply with SEQRA, the dissent appears to place the burden on DEC to demonstrate factually that higher
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concentrations of DEET would not be more effective against the spread of Lyme Disease. However, such a 398*398 burden has never been imposed by SEQRA. DEC was not required to accept as true the assertions by chemical industry retained experts — which were unsupported by any responsible scientific study — that the DEET rule could have an impact on the incidence of Lyme Disease. Moreover, the dissent fails to identify any empirical scientific data submitted by petitioners which DEC overlooked in its SEQRA determination.
IV.
Finally, there is no merit to petitioners' Commerce Clause argument. First, FIFRA (7 USC § 136v) delegates to States the authority to regulate the sale and use of pesticides. "Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce" (White v Massachusetts Council of Constr. Empls., 460 US 204, 213; see also, Southern Pac. Co. v Arizona, 325 US 761, 769). Moreover, States may act to regulate matters of legitimate local concern even though such regulation affects interstate commerce (Maine v Taylor, 477 US 131, 138). The regulation at issue here was enacted in the interest of public health and safety — obviously legitimate local concerns — and, concededly does not discriminate between in-State and out-of-State manufacturers and distributors. Petitioners have made no showing that "the burden imposed on commerce is clearly excessive in relation to the putative local benefits" (Pike v Bruce Church, 397 US 137, 142), and their bare allegation that the DEET rule imposed an undue burden on interstate commerce is insufficient to render the rule unconstitutional (see, Pharmaceutical Mfrs. Assn. v Whalen, 54 N.Y.2d 486, 495). The constitutionality of the rule should, therefore, be sustained.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
CIPARICK, J. (dissenting).
We are all in agreement that the Commissioner may restrict the use of DEET in high concentrations. We also agree that registrations for pesticide products not in compliance with the proposed DEET concentration rule must be cancelled pursuant to title 7. We differ with the majority concerning the nature and content of the title 7 cancellation proceedings. Specifically, the majority holds that the scientific issues underlying the DEET rule may not be "relitigated" during title 7 proceedings once they have been aired at an informal public rule-making hearing. Our analysis 399*399 of article 33 as a whole leads us to conclude that permitting the Commissioner to resolve complex scientific policy questions on the basis of the data developed at only a rule-making hearing would be inimical to the Legislature's considered approach to pesticide regulation. Accordingly, we respectfully dissent.
By letter dated May 22, 1991, the Department of Environmental Conservation's Bureau of Pesticide Management (DEC) informed DEET product registrants of its intention to amend 6 NYCRR part 326 to limit the registration of personal use insect repellant products containing DEET to those containing 30% or less of the pesticide. On July 23, 1991, DEC held a public hearing on the proposed DEET rule, at which time eight persons spoke in favor of the continued
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availability of high concentration DEET products. Only DEC's representative spoke in favor of the proposed rule. Written comments were subsequently submitted to DEC.
On April 3, 1992, DEC issued its Notice of Adoption of the proposed rule, modified only to the extent of raising the permissible DEET concentration level from 30% to 33.33% for controlled- release formulations.[1] Shortly thereafter, affected DEET registrants were advised that their product registrations would be cancelled for noncompliance effective May 11, 1992.
Pursuant to title 7 of ECL article 33, the affected registrants requested that DEC refer the cancellation decision to an independent expert advisory committee for their review and commentary on the underlying scientific issues. DEC denied the request, stating that title 7 does not provide for advisory committee review when the Commissioner acts pursuant to its title 3 rule-making authority.
Petitioners commenced this proceeding seeking declaratory and injunctive relief. Supreme Court concluded that DEC was 400*400 not authorized to cancel products by rule making and declared the DEET rule invalid. The Appellate Division modified, declaring that 6 NYCRR 326.2 (b) (10), the DEET rule, "has not been shown to be invalid." Although the Court concluded that DEC must comply with title 7 when cancelling registrations of noncomplying products, it held that registrants "cannot challenge the validity of the DEET regulation" in the title 7 proceedings (197 AD2d 314, 320).
Petitioners appealed to this Court on constitutional grounds. Implementation and enforcement of the DEET rule has been stayed pending a final determination of this appeal.
Statutory Scheme
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 USC §§ 136-136y), as administered by the Environmental Protection Agency (EPA), comprehensively regulates pesticides at the Federal level. The EPA is authorized to give notice of its intent to cancel a pesticide registration, "If it appears * * * that a pesticide * * * does not comply with * * * [FIFRA] or * * * generally causes unreasonable adverse effects on the environment" (7 USC § 136d [b]). "Noncompliance" determinations involve a risk/benefit analysis which balances the environmental, economic, and social costs and benefits associated with continued use of a pesticide (see, Environmental Defense Fund v Environmental Protection Agency, 489 F.2d 1247, 1250-1252).
ECL article 33, which is expressly modeled after FIFRA, regulates pesticides at the State level. Like FIFRA, ECL article 33 embodies a balanced risk/benefit approach to pesticide regulation (see, ECL 33-0301).[2] The ECL expressly provides that "it is desirable that there should be uniformity between the requirements of the several states and the federal 401*401 government relating to pesticides" (ECL 33-0303 [4]; Weinberg, Practice Commentary, McKinney's Cons Laws of NY, Book 17½, ECL art 33, at 656 [art 33 and FIFRA should be read in conjunction]). Accordingly, DEC's regulations provide that, except in the case of a conflict, "the rules and regulations applicable to and in conformity with the primary standards established by article 33 27
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of the Environmental Conservation Law shall be those promulgated pursuant to [FIFRA]" (6 NYCRR 320.1).
Title 3
Title 3 of ECL article 33 vests the Commissioner with exclusive jurisdiction over "all matters pertaining to the distribution, sale, use and transportation of pesticides" (ECL 33-0303 [1]). This delegation of power includes authorization to "promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the commissioner deems appropriate to fully protect the public interest" (ECL 33-0303 [3] [d]).[3] The Commissioner is authorized to "adopt, promulgate and issue such rules and regulations as he may deem necessary to carry out and give full force and effect to the provisions of this article" (ECL 33-0303 [3] [e]).
The declared purpose of title 3 was "[t]o make it unlawful for any person to distribute, sell, offer to sell, purchase, possess or use without a permit a `restricted use pesticide'" (Mem of State Executive Dept, 1970 McKinney's Session Laws of NY, at 2986). Title 3 augmented the Commissioner's powers as they related to registered pesticides classified as "restricted use", requiring sellers and distributors of such pesticides to obtain "commercial permits", and persons purchasing them for actual use to obtain "purchase permits" (id.; Letter from Member of Assembly Hardt, Bill Jacket, L 1970, ch 732, at 1). The Commissioner was authorized to revoke and to refuse to issue commercial and purchase use permits. Enforcement was "strengthened generally" by permitting the Commissioner to seize a restricted use pesticide for which a permit had not been issued as well as by permitting the suspension of a 402*402 pesticide registration presenting an imminent hazard to the public (Executive Mem, op. cit., at 2987). Thus, title 3 was enacted to improve the Commissioner's ability to control misuse of registered pesticides by sellers, distributors, farmers, and other applicators. It does not address the cancellation of pesticide registrations.
Title 7
From 1947 through 1963, the United States Department of Agriculture (USDA), the former administering agency of FIFRA, lacked the authority to refuse to register or cancel a pesticide (see, Pub L 80-104, 61 US Stat 163, 168). In 1964, Congress amended FIFRA to authorize USDA to deny or cancel Federal pesticide registrations, subject to advisory committee review and an adjudicatory hearing. In 1965, to ensure uniformity with FIFRA, the New York Legislature similarly amended the predecessor version of ECL article 33 (Agriculture and Markets Law former art 11). The 1965 amendments (L 1965, ch 228) authorized the Commissioner to deny or cancel a pesticide registration whenever the product or its labeling did not comply with the provisions of article 11 (now ECL art 33) (see, Mem of Joint Legis Comm on Natural Resources, 1965 NY Legis Ann, at 84-85).
As with the virtually identical Federal amendments, a registrant affected by the Commissioner's noncompliance decision was afforded certain procedural rights. Under title 7 of ECL article 33, whenever the Commissioner determines that a pesticide registration should be cancelled, the 28
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registrant, within the prescribed 30-day time period, may (1) make necessary corrections (ECL 33-0713 [3]); (2) file a petition requesting that the matter be referred to an advisory committee comprised of qualified experts who will review the relevant data and submit to the Commissioner a report and recommendation regarding the proposed cancellation (ECL 33- 0715); or (3) the registrant may file objections and request an adjudicatory public hearing before an Administrative Law Judge (ECL 33-0717). The Commissioner may accept, reject, or modify the recommendations of the advisory committee or Administrative Law Judge (id.). The Commissioner's final determination may be challenged pursuant to CPLR article 78 (ECL 33- 0721).
The scientific advisory mechanism created by the 1965 amendments manifests the Legislature's intention of striking a proper balance between preservation of the public safety and assurance of due process to registrants in situations 403*403 involving cancellation for noncompliance: "The authorization for an advisory committee is in furtherance of fair and equitable Ztreatment of applicants, and the people of the state, represented by the Commissioner" (Mem of Joint Legis Comm on Natural Resources, 1965 NY Legis Ann, at 85). Title 7 fulfills another, more critical function in the over-all scheme of article 33 — it provides DEC with objective technical data to assist it in weighing the risks and benefits associated with continued use of a particular pesticide, thus insuring that DEC acts on a sound, scientifically informed basis. Clearly, title 7's purpose was the promotion of informed administrative decision-making and judicial review:
"The scientific knowledge and impartial evaluation of a pesticide by such a[n advisory] committee can only be for the best interests of all.
"The administrative procedural steps provided and required by the bill insure an applicant or registrant a full hearing and consideration, and will protect and safeguard the health, welfare and safety of the public" (Letter from Commissioner Wickham to Honorable Sol Corbin, petitioner's Appendix, at A-26 [emphasis added]; see, Mem of Joint Legis Comm on Natural Resources, 1965 NY Legis Ann, at 85; 3 Rodgers, Environmental Law, Pesticides and Toxic Substances § 5.2 [B] [2] [purpose of science advisory apparatus was to strengthen technical input to agency and bring a fresh, credible perspective to disputed scientific issues, which would aid judicial review]).
Thus, in plain, compulsory language, title 7 clearly gives any person adversely affected by a notice of cancellation the right to request a hearing on the matter. Title 7 constitutes the only legislative statement directly addressing the precise issue we confront today — cancellation of existing pesticide registrations.
Title 3/Title 7 Interplay
As the majority correctly observes, generally an agency can promulgate a legislative rule which eliminates the justification for a statutorily prescribed adjudicatory hearing on factual issues (see, Mobil Oil Exploration v United Distrib., 498 US 211, 228). However, the majority interprets and applies this principle as if no exceptions are possible. To begin with, it is fundamental that an agency has the power to issue binding 404*404 legislative rules only if and
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to the extent Congress has authorized it to do so (see, Mobil Oil, supra, at 223; United States v Storer Broadcasting Co., 351 US 192, 202-203; 1 Davis and Pierce, Administrative Law § 6.3, at 234 [3d ed]).
In this case, it is undisputed that title 3's general rule-making authority does not expressly empower the Commissioner to bypass title 7 and cancel pesticide registrations based only on an informal public rule-making hearing. The majority, in imputing this power to the Commissioner, has accorded the agency unprecedented deference. That an agency possesses rule-making authority does not end all inquiry; it is still appropriate to examine whether an agency may lawfully override legislative mandates contained in complementary portions of the enabling statute (see, 1 Davis and Pierce, Administrative Law § 6.3, at 235 [3d ed]; see also, Matter of Campagna v Shaffer, 73 N.Y.2d 237, 242-243:
"Agencies, as creatures of the Legislature, act pursuant to specific grants of authority conferred by their creator. In discharging responsibilities, an agency is `clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication [citations omitted]. Where an agency has been endowed with broad power to regulate in the public interest, we have not hesitated to uphold reasonable acts on its part designed to further the regulatory scheme' [Matter of City of New York v State of New York Commn. on Cable Tel., 47 N.Y.2d 89, 92]. It is correspondingly axiomatic, however, that an administrative officer has no power to declare through administrative fiat that which was never contemplated or delegated by the Legislature. An agency cannot by its regulations effect its vision of societal policy choices [Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 N.Y.2d 186, 191- 192; Boreali v Axelrod, 71 N.Y.2d 1, 9], and may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer.").
The majority, without analyzing title 7's place in the overall scheme of ECL article 33, has invested the Commissioner with the very power being contested today, even while relying on case law that recognizes the need to examine the entire 405*405 enabling statute in instances where the scope of the agency's legislatively prescribed authority is in doubt:
"It is well established that our task in interpreting separate provisions of a single Act is to give the Act `the most harmonious, comprehensive meaning possible' in light of the legislative policy and purpose. Clark v. Uebersee Finanz-Korp., [332 US 480, 488]; see United States v. Bacto- Unidisk, 394 U.S. 784, 798." (Weinberger v Hynson, Westcott & Dunning, 412 US 609, 631- 632.)
In this case, the majority diminishes the significance of title 7's legislative policy and purpose. In turn, it attributes inflated significance to title 3 on the ground that "the specific rule-making power to restrict or limit pesticide use under ECL 33-0303 (3) (d)" finds no statutory counterpart in FIFRA (majority opn, at 393). However, the majority proceeds from a flawed premise. FIFRA does indeed provide rule-making authority to ban pesticides.
7 USC § 136a (d) (2) provides:
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"(2) Change in classification. If the Administrator determines that a change in the classification of any use of a pesticide from general use to restricted use is necessary to prevent unreasonable adverse effects on the environment, he shall notify the registrant of such pesticide of such determination at least [45] days before making the change and shall publish the proposed change in the Federal Register. The registrant, or other interested person with the concurrence of the registrant, may seek relief from such determination under section [136d (b)] of this title."
The implementing regulation, 40 CFR 152.140, entitled "Classification of pesticide products", provides:
"FIFRA sec. 3(d) authorizes the Agency, as part of the registration or reregistration of a pesticide, or by issuing a regulation, or by an order under FIFRA sec 6 [7 USC § 136d, which contains the cancellation authority and scientific review safeguards], to classify a product, its uses, or a class of products or uses for restricted use, in accordance with the criteria and procedures in subpart I of this part." (Emphasis added.)
406*406 40 CFR 152.160, which deals with the scope of classification of pesticides further provides in subdivision (b):
"Kinds of restrictions. The Agency may restrict a product or its uses to use by a certified applicator, or by or under the direct supervision of a certified applicator, as described in FIFRA sec. 3 (d) (1) (C). The Agency may also, by regulation, prescribe restrictions relating to the product's composition, labeling, packaging, uses, or distribution and sale, or to the status or qualifications of the user." (Emphasis added.)
Manifestly, the EPA is authorized to promulgate a regulation changing the classification of a pesticide from general to restricted use, thus restricting, or even banning, the use, sale or distribution of a pesticide product where there is a substantial question about its safety. This is exactly the course of action the Commissioner of DEC has pursued in this case. Thus, contrary to the majority's observation, FIFRA and ECL are structurally parallel. The principal difference is that while FIFRA explicitly makes the EPA Administrator's change of classification rule- making authority subject to the cancellation and scientific review procedures contained in 7 USC § 136d, title 3 is silent in this respect.
Evidently, the Legislature did not contemplate that a change of classification by title 3 rule making would in some cases automatically effect the cancellation of existing registrations for pesticide products. We have ample, highly persuasive authority to fill this vacuum — FIFRA, upon which ECL article 33 is modeled, and which provides for cancellation proceedings, including scientific review, when a pesticide is banned by rule. Title 3 and DEC's own regulations provide that, for purposes of uniformity, FIFRA's regulations must fill the gaps of New York's statutory scheme (see, ECL 33-0303 [4]; 6 NYCRR 320.1 ["the rules and regulations applicable to and in conformity with the primary standards established by article 33 of the Environmental Conservation Law shall be those promulgated pursuant to (FIFRA)"]).
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Indeed, the majority's formulation works a conflict against FIFRA, and leaves New York's Commissioner of DEC to resolve complex policy questions on the frontiers of scientific knowledge based only on the evidence developed at a generic public rule-making hearing. The Legislature, in adopting the remarkably detailed procedural requisites contained in title 7, 407*407 recognized that specialized expertise is required when making pesticide cancellation decisions. The risks to both registrants and the public at large attendant to the majority's evisceration of title 7, which promotes agency accuracy, are manifest.
Our task in the face of legislative silence and ambiguity concerning the proper interplay of different provisions of a single act is to construe the provisions in a manner that furthers the over-all policy and purpose of the entire statute (see, Matter of Bookhout v Levitt, 43 N.Y.2d 612, 617 [it is an "elementary canon of statutory construction that all parts of a statute be read and construed together to determine legislative intent"]). Titles 3 and 7 are important components of a single, integrated statutory scheme embodying a balanced risk/benefit approach to pesticide regulation. The two provisions can and should be construed harmoniously in the context of article 33 as a whole. Consequently, we cannot join in the executive-judicial excision of the Legislature's carefully constructed framework for informed resolution of complex scientific policy questions. The majority's resolution, premised on automatic deference to generic rule-making authority, is simply unsound.
In our view, the majority also errs in repealing title 7 by implication. In Matter of Consolidated Edison Co. v Department of Envtl. Conservation (71 N.Y.2d 186, 195), we stated:
"Generally, a statute is not deemed impliedly modified by a later enactment `"unless the two are in such conflict that both cannot be given effect. If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction should be adopted"'. `These principles apply with particular force to statutes relating to the same subject matter, which must be read together and applied harmoniously and consistently'" ([emphasis added and citations omitted]; see, McKinney's Cons Laws of NY, Book 1, Statutes § 391; Matter of Natural Resources Defense Counsel v New York City Dept. of Sanitation, 83 N.Y.2d 215, 222-223).
We are unable to accept the other major premise supporting the majority's holding — that the complex science policy issues implicated by the DEET concentration rule were somehow adequately "litigated" during the public rule-making hearing. The rule-making hearing which the majority considers sufficient 408*408 for resolution of the issues implicated by the DEET rule is but an informal process whereby the public is provided with notice of the terms or substance of the agency's proposal; the public is given an opportunity to comment on the proposal; and the agency then provides its reasons for adopting its final rule together with its responses to the public comments.
In this case, registrants, manufacturers and other agencies were also invited to submit comments on the proposed rule. However, the public hearing lasted 1 hour and 45 minutes. Eight people testified in favor of continued availability of high concentration DEET products, and the only person speaking in favor of the DEET rule at the meeting was DEC's representative, who was not subject to cross-examination. In short, there was never a true opportunity to "litigate" in this
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case, i.e., to probe and test the scientific evidence supporting the DEET rule, including the potential adverse effects on the Lyme Disease epidemic attendant to depriving the public of the highest concentrations of the only effective repellant against the ticks which spread the disease.[4] Nor did the Commissioner's informal rule-making hearing elicit the independent and comprehensive technical input the Legislature has stated is necessary for informed cancellation decisions under article 33.
It must be kept in mind that the procedural requisites at issue in this case are conceptually unique. The Commissioner is not just resolving disputed factual issues through rule making. The Commissioner is deciding complex, mixed questions of science and policy that require balancing the environmental, social, and economic costs and benefits of continued use of high concentration DEET products. The science advisory apparatus assists the Commissioner in this difficult process, providing it with technical input from an expert, neutral body, thus ensuring that the Commissioner's DEET cancellation 409*409 decision is premised on adequate data and embodies coherent public policy.
It is clear that title 7's express, preexisting, statutory procedural safeguards are of a completely different nature and historical development than the generic "due process" hearing rights at issue in the cases relied upon by the majority (see, e.g., Mobil Oil Exploration v United Distrib., 498 US 211, supra ["due hearing"]; Heckler v Campbell, 461 US 458 [Social Security disability hearing]).
In summary, we reject the majority's reading of article 33, which virtually eliminates the core of title 7 — scientific review — and reduces cancellation proceedings to a pro forma rubber stamping process in those instances where DEC has promulgated a rule requiring the cancellation of registrations. We would hold that, although the Commissioner may promulgate a regulation completely restricting the use of a pesticide, it must also satisfy title 7's scientific review requirements when cancelling existing pesticide registrations not in compliance with the proposed rule.
Our construction of what the Legislature intended and enacted would not impede the Commissioner's ability to protect the public safety. If DEC concludes that the public or environment are imminently threatened by continued use of a pesticide, under the explicit terms of title 7, DEC may immediately suspend registrations for products containing that pesticide pending completion of cancellation proceedings (ECL 33-0719). Nor would we subordinate title 3 to title 7. Rather, in light of the important but potentially conflicting interests embodied by the two provisions, and the Legislature's silence concerning their interplay, the preferred construction should be one that furthers the Legislature's over-all approach to pesticide regulation, which places great value on reasoned, informed decision making (see, Matter of Bookhout v Levitt, 43 N.Y.2d 612, supra). Under controlling principles of administrative law, DEC would continue to be entitled to judicial deference, even where the record is susceptible of conflicting inferences from the scientific evidence adduced. Finally, our construction would preserve harmony with FIFRA, which provides for scientific review and public hearings in all cancellation cases, including where, as here, a ban on a generic active ingredient requires mass cancellations of product registrations (cf., 7 USC § 136d [b]; 40 CFR 164.20; see, e.g., Love v
33
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Thomas, 858 F.2d 1347; Environmental Defense Fund v Environmental Protection Agency, 465 F.2d 528, 532).
410*410SEQRA
The Commissioner of DEC violated SEQRA in issuing a negative declaration. The Appellate Division rejected petitioners' argument, stating merely that "the record establishes that the Commissioner identified the relevant areas of environmental concern, took a `hard look' at them and made a reasoned elaboration for the determination (see, Chinese Staff & Workers Assn. v City of New York, 68 N.Y.2d 359)." (197 AD2d, at 319.) However, this conclusion is without support in our case law (see, Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 417; Matter of Har Enters. v Town of Brookhaven, 74 N.Y.2d 524, 528-529). DEC failed to take a "hard look" at the ramifications of the DEET rule on Lyme Disease prevention.
The primary purpose of SEQRA is "to inject environmental considerations directly into governmental decision making" (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 N.Y.2d 674, 679). Under SEQRA, DEC was required to make an initial determination whether the DEET regulation "may have a significant effect on the environment" (ECL 8-0109 [2] [emphasis added]). If so, DEC was required to prepare an Environmental Impact Statement. It is settled that "[t]he threshold at which the requirement that an EIS be prepared * * * is relatively low: it need only be demonstrated that an action may have a significant effect on the environment" (Chinese Staff, supra, at 364-365 [emphasis added]; Onondaga Landfill Sys. v Flacke, 81 AD2d 1022; Weinberg, Practice Commentary, McKinney's Cons Laws of NY, Book 17½, ECL 8-0109, at 75).
In this case, medical and entomological experts opined that the DEET rule would limit the availability of DEET concentrations most effective against Lyme Disease (see, e.g., record on appeal, at 747-748 [statement of Dr. Durland Fish]; id., at 396 [statement of Dr. Kenneth Leigner, a physician specializing in Lyme Disease]). Dr. John A. Mulrennan, the Chief of the Bureau of Entomology and Pest Control of the Florida Department of Agricultural and Consumer Services, and one of the authors of a 1969 Vietnam DEET study upon which DEC relies in support of its rule, stated:
"it would be a mistake to limit the public to less than the most effective formulation of DEET available, particularly if you're basing your concerns on the research conducted by Dr. Lamberg and myself [involving 75% DEET concentrations in combat conditions]. * * *
411*411"The cases of [Lyme Disease and Eastern Encephalitis] are a real health problem. They pose significant risks to the public. Any public health threat posed by the use of DEET repellents pales by comparison" (record on appeal, at 457-458 [emphasis added]).
The authoritative statements in the record point out the magnitude of the very tangible public health threat presented by Lyme Disease. The record also reveals the current paucity of scientific knowledge concerning the tick-repelling-efficacy of DEET. Because of the lack of adequate studies, it is unknown what concentrations of DEET adequately protect humans against the ticks
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which spread Lyme Disease. DEC actually concedes this point and its lack of knowledge on the issue (see, Rep of Bureau of Toxic Substance Assessment of NY State Dept of Health, May 20, 1991, record on appeal, at 290). Nevertheless, DEC expects that it can issue a negative declaration in this case without conducting any preaction investigation of the potential adverse effects of removing high concentration DEET products from the market.
Similar agency efforts to ignore key, disputed issues have repeatedly been rejected in the past (see, e.g., Matter of Golten Mar. Co. v New York State Dept. of Envtl. Conservation, 193 AD2d 742, 743 [DEC did not examine area of environmental concern]; Purchase Envtl. Protective Assn. v Strati, 163 AD2d 596, 597-598 [Town Planning Board violated SEQRA when it failed to make a "coherent evaluation" of wetlands; moreover, Board's "hard look" obligation had to be made on the record and could not be delegated to expert consultants]; Matter of Desmond- Americana v Jorling, 153 AD2d 4, 10-11, lv denied 75 N.Y.2d 709 [negative declaration violated SEQRA because DEC conducted only "cursory examination" of impact its regulations establishing comprehensive system for prior notification of pesticide applications in the commercial lawn context would have on existing integrated pest management system]; Matter of Save the Pine Bush v Planning Bd., 130 AD2d 1 [Planning Board did not consider key question of the minimal acreage required for continued survival of Pine Bush ecology]; H.O.M.E.S v New York State Urban Dev. Corp., 69 AD2d 222, 232 [UDC failed to analyze traffic and parking problems its project entailed]).
DEC's obligation under the circumstances of this case was to perform a "thorough and meaningful review" (see, Matter of Desmond-Americana v Jorling, 153 AD2d 4, 11; 412*412 see also, Chinese Staff, supra, at 364). DEC conducted no such review. Despite the sharply disputed evidence in the record concerning the impact banning high concentration DEET products would have on the incidence of Lyme Disease, and DEC's conceded lack of knowledge on this issue, DEC answered the questions whether its action could result in any adverse environmental effects, or any controversies related thereto, with a single word — "No" (record on appeal, at 829). Later, in issuing a Revised Negative Declaration, DEC brushed aside with one conclusory sentence all of the authoritative statements and sharply disputed evidence pertaining to the possible increased danger of contracting Lyme Disease: "No increase in the incidence of vector-borne diseases is expected to result from this rule" (id., at 371).
In conclusion, DEC neither took a "hard look" at the relevant environmental concerns, nor made a reasoned elaboration of the basis for its declaration of nonsignificance (see, Chinese Staff, supra, at 364). Since DEC failed to satisfy SEQRA, the DEET regulation should be annulled (see, Inland Vale Farm Co. v Stergianopoulos, 104 AD2d 395, 396, affd 65 N.Y.2d 718; Desmond-Americana, supra, at 12).
Order affirmed, with costs.
[1] Further demonstrating that title 3 was not intended to be inextricably linked to FIFRA is the legislative history which indicates that chapter 732 was particularly targeted against DDT, the Legislature clearly intending to impose severe restrictions on its sale and usage. Contrastingly, the EPA considered itself bound under FIFRA to move against DDT-based pesticides only through the slower, more cumbersome adjudicatory procedures of FIFRA for cancellation of their registrations (see, 37 Fed Reg 13,369-13,374 [July 7, 1972]). 35
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[2] Specifically, the EPA book warns, "Great caution should be exercised in using DEET on children. Only the products containing the lower concentrations (usually 15%) should be used, and application should be limited to exposed areas of skin, using as little repellent as possible."
[1] As amended by DEC's new rule, 6 NYCRR 326.2 provides:
"(b) The following may be distributed, sold, purchased, possessed or used only upon issuance of a commercial permit or purchase permit for those purposes listed: * * *
"(10) DEET (N, N-diethyl-m-toluamide):
"(i) end use product formulations for use on humans are limited to concentrations of 30 percent or less DEET active ingredient; except controlled-release formulations (formulations which contain one or more ingredients intended to regulate the rate of release of active ingredients) are limited to concentrations of 33.33 percent or less DEET active ingredient; and (ii) all products are general use."
[2] ECL 33-0301 declares the Legislature's policy and purposes: "The purpose of this article is to regulate the registration, commercial use, purchase and custom application of pesticides. Pesticides, properly used for the control of insects, fungi, weeds and nematodes, and as defoliants, desiccants, and plant regulators and for related purposes, are valuable, important and necessary to the welfare, health, economic well-being and productive and industrial capabilities of the people of this state. However, such materials, if improperly used, may injure health, property and wildlife. It is hereby declared to be a matter of legislative determination that the regulation of the registration, commercial use, purchase and custom application of pesticides is needed in the public interest and that in the exercise of the police power all persons be required to register or obtain permits before engaging in such activities."
[3] Article 33 classifies pesticide products as either "restricted use" or "general use". Restricted use pesticides are defined as those which persist or accumulate in the environment and create a present or future risk of harm, or which "the commissioner finds is so hazardous to man or other forms of life that restrictions on its sale, purchase, use, or possession are in the public interest" (ECL 33-0101 [42] [b]).
[4] Title 7 is not a second bite at the apple given the procedural posture of this case. When registrants were invited to comment on the DEET rule they were not informed that the rule-making hearing would be their one and only opportunity to challenge the substantive merits of the rule. As far as the registrants knew, they would still be entitled to title 7 review after the rule-making hearing. Thus, it is unpersuasive to posit that these registrants had an opportunity to fully litigate this issue. Had they known at the time of the rule-making hearing that the Commissioner intended to take the unprecedented step of foregoing title 7's scientific review provisions in cancelling their registrations, the rule-making hearing would likely have proceeded differently.
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91 N.Y.2d 98 (1997) 689 N.E.2d 1373 667 N.Y.S.2d 327
In the Matter of Raritan Development Corp. et al., Appellants, v. Gaston Silva et al., Respondents.
Court of Appeals of the State of New York.
Argued September 10, 1997 Decided October 28, 1997.
Tenzer Greenblatt, L. L. P., New York City (James G. Greilsheimer and Lawrence S. Feld of counsel), for appellants.
Paul A. Crotty, Corporation Counsel of New York City (Virginia Waters, Leonard Koerner and Ellen B. Fishman of counsel), for respondents.
Sean M. Walsh, Douglaston, for Federation of Civic Councils of the Borough of Queens, Inc., amicus curiae.
Chief Judge KAYE and Judges TITONE, BELLACOSA and CIPARICK concur with Judge SMITH; Judge LEVINE dissents and votes to affirm in a separate opinion in which Judge WESLEY concurs.
100*100SMITH, J.
Respondents, the Commissioners of the Board of Standards and Appeals of the City of New York (BSA), argue that this Court should defer to the agency's interpretation of section 12-10 of New York City's Zoning Resolution. However, when an interpretation is contrary to the plain meaning of the statutory language, we have typically declined to enforce an agency's conflicting application thereof. We see no compelling reason to depart from that long-established rule in this case.
In calculating the Floor Area Ratio (FAR) for zoning purposes, floor area includes the total amount of "floor space used for dwelling purposes, no matter where located within a building, when not specifically excluded; * * * However, the floor area of a building shall not include * * * cellar space." 101*101 Contrary to respondents' argument, we find that this language clearly provides that "cellar space" is excluded from "floor area" without further qualification. We further conclude that such an interpretation is not "absurd." The Appellate Division's order should be reversed.
1. BACKGROUND
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A development of two-family residences on Staten Island was planned in a R3-2 zoning district. That zoning district permits a "floor area ratio" of 0.50 for each building. That ratio means that the total floor area of each building may not exceed 50% of the area of the lot on which the residence is situated. One particular residence was designed to be a trilevel residential building with one dwelling unit comprised of the top two floors and another single dwelling unit on the ground floor. The architect calculated the FAR without including the floor space of the ground floor.
The relevant zoning provision, Zoning Resolution § 12-10, provides in relevant part:
"`Floor area' is the sum of the gross areas of the several floors of a building or buildings, measured from the exterior faces of exterior walls or from the center lines of walls separating two buildings. In particular, floor area includes: * * *
"(g) any other floor space used for dwelling purposes, no matter where located within a building, when not specifically excluded; * * *
"However, the floor area of a building shall not include:
"(a) cellar space".
The Zoning Resolution defines "cellar" in R3 zoning districts as: "a space wholly or partly below the base plane with more than one-half its height (measured from floor to ceiling) below the base plane." It is conceded by both parties that the ground floor of the subject residence fits within this definition of a "cellar."
On October 14, 1993, the New York City's Department of Buildings (DOB) objected to the architect's FAR calculations because the ground level was a "dwelling unit" and should have been included in the FAR calculations notwithstanding the fact that the ground floor was a "cellar" as that term is defined in the Zoning Resolution. The DOB found that the cellar 102*102 space exclusion only applied to "true cellar space, space used for nonhabitable purposes, such as for furnace rooms, utility rooms, auxiliary recreation rooms, etc." The DOB further claimed that this interpretation was consistent with the "Zoning Resolution's treatment of basement space and the Multiple Dwelling Law's treatment of cellar space."
The DOB also claimed that the "past practice and policy in interpreting the 1916 Zoning Resolution and the current Zoning Resolution has consistently been to require a habitable room at the zoning cellar level to be included as floor area." Previous approvals that did not conform to this interpretation were allegedly "given in error."
The DOB revoked petitioners' building permit and denied the architect's request for reconsideration. The development corporation of the residential community appealed to the BSA. The BSA noted that the Department of City Planning, "the drafters of the Zoning Resolution, strongly supports the determination of the Department of Buildings based upon the language of the Zoning Resolution, the legislative history of the definition of `floor area' and the
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interpretation of the Zoning Resolution in conjunction with the Multiple Dwelling Law." The BSA denied the appeal and found that DOB's ruling had been "reasonable and rational."
Petitioners filed this CPLR article 78 proceeding to annul the BSA's decision. Supreme Court examined the legislative history of the provision and determined that cellar space to be used as dwelling space should be included in the FAR calculation. The court also found that DOB had consistently adhered to that interpretation which reflected standard industry practice. The Appellate Division affirmed and found BSA's interpretation rational and supported by legislative history. This Court granted leave to appeal.
2. ANALYSIS
Contrary to the parties' assertions, this Court has consistently applied the same standard of review for agency determinations. Where "the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required" (Matter of Toys "R" Us v Silva, 89 N.Y.2d 411, 419). On the other hand, when applying its special expertise in a particular field to interpret statutory language, an agency's rational construction is entitled to deference (see, Matter of Jennings v New York State Off. of Mental Health, 90 N.Y.2d 227, 239; Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459). 103*103 Even in those situations, however, a determination by the agency that "runs counter to the clear wording of a statutory provision" is given little weight (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d, at 459; see also, Matter of Toys "R" Us v Silva, 89 NY2d, at 418-419).
The statutory language could not be clearer. As noted above, a cellar is defined within the Zoning Resolution in terms of its physical location in a building. "Floor area" includes dwelling spaces when not specifically excluded and "cellar space," without further qualification, is expressly excluded from FAR calculations.[1] Thus, FAR calculations should not include cellars regardless of the intended use of the space. BSA's interpretation conflicts with the plain statutory language and may not be sustained.
BSA urges this Court to ignore the obvious interpretation of the Zoning Resolution and, instead, to look beyond the pages of statutory text. BSA attempts to justify its reading by first referring this Court to the language of a former version of the regulation. In 1916, the Zoning Resolution defined "floor area" as "the sum of the gross horizontal areas of the several floors * * * but excluding * * * basement and cellar floor areas not devoted to residence use." BSA is correct that the 1916 Zoning Resolution supports its contention that cellar space is only excluded from FAR calculations when not used for residential purposes.
However, the provision was changed in 1961 to its present text. In the amended text, cellar spaces were excluded from floor area without qualification. There is no evidence that the changed meaning was accidental or superfluous (see, Mabie v Fuller, 255 N.Y. 194, 201 ["We must assume that the Legislature in enacting the section intended that it should effect some change in the existing law and accomplish some useful purpose"]). Still, BSA insists that the amendment did not change the law.
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For example, BSA argues that it has always interpreted the resolution a particular way so, presumably, it should be allowed to continue to do so. Such evidence might be more compelling 104*104 if the present text of the Zoning Resolution offered any support. It should also be noted that BSA concedes that it has not consistently interpreted the statute in the same manner as it did here.
Perhaps most telling is BSA's contention to Supreme Court that its interpretation of the Zoning Resolution is consistent with the Multiple Dwelling Law which applies to residential buildings for three or more families. As BSA notes in its answer, which was verified by its Commissioner:
"Section 26 of Title I in Article 3 of the Multiple Dwelling Law reads (under paragraph 2 Definitions):
"b. `Floor area': the sum of the gross horizontal areas of all of the several floors of a dwelling or dwellings and accessory structures on a lot measured from the exterior faces of exterior walls or from the center line of party walls, except:
"1. cellar not used for residential purposes."
Unfortunately, BSA relies upon a version of the law which was amended over a decade ago. In 1985, the definition of the exclusion was modified from "cellar not used for residential purposes" to the unqualified "cellar space" (see, L 1985, ch 857, § 1). According to the legislative memorandum which accompanied the text of the new law, the "amendment resolves [a] conflict by correlating the bulk of yard regulation requirements of the Multiple Dwelling Law with those of the Local Zoning Resolution, thus providing one clear set of guidelines for professionals and administrators" (1985 McKinney's Session Laws of NY, at 3171). The memorandum concludes that "the Mayor urges upon the Legislature the earliest possible favorable consideration of this proposal" (id.). Thus, it was thought in 1985 that the unqualified exclusion of cellar space from floor area calculations would be in conformity with the Zoning Resolution. BSA's reliance on outdated laws to justify its reading of the Zoning Resolution would be yet another reason to annul its determination.
Essentially, BSA has (sometimes) grafted onto the language of the current Zoning Resolution an addendum of its own whereby only certain cellars are excluded from floor area calculations. Typically, we have declined to uphold such an interpretation (see, Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 N.Y.2d 382, 394["`(N)ew language cannot be 105*105 imported into a statute to give it a meaning not otherwise found therein'"], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 94, at 190). Moreover, the conclusion reached herein is not "absurd" as the BSA contends.
FAR is related to the density of land use and such regulations have been upheld as reasonable (see, Pondfield Rd. Co. v Village of Bronxville, 1 AD2d 897, affd without opn 1 N.Y.2d 841; 1 Anderson, New York Zoning Law and Practice § 9.46 [3d ed]). BSA contends that its interpretation of the Zoning Resolution would prevent "the additional burden" of increased
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neighborhood population upon schools and parking. However, FAR calculations were not designed to control population.
As noted above, FAR is comprised of total floor area within the building divided by the total area of the lot containing the building. Since residential areas have lower FAR, more lot is required to build larger buildings. Such concerns restrict physical development within a neighborhood (see, 7 Rohan, Zoning and Land Use Controls § 42.06 [2] [c] [1997] ["Through this device, zoning ordinances restrict the amount of development on a lot by specifying the ratio that the floor area of a building may bear to the lot area"]; see also 3 Rathkopf, Zoning and Planning § 34C.02 [1] [4th ed] [the "`floor area ratio' or F.A.R. technique is widely used today to establish the gross maximum size of a building in terms of the amount of floor area permitted therein"]).
It has also been stated that "[o]ne way to control the size of a building is to limit its overall volume" through FAR limits (7 Rohan, Zoning and Land Use Controls, at App 42-10; see also, 3 Rathkopf, Zoning and Planning § 34C.02 [1] [4th ed] ["A more flexible method of regulating bulk is establishing a ratio between the size of the lot and the gross floor area of the principal building to be erected thereon"]). Indeed, the area regulations of New York City were originally enacted to regulate bulk in building development (see, Bassett, Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years, at 62 ["Many ordinances have followed that of New York City in limiting building area to a fraction of the lot area. * * * The regulation must not be so drastic that it compels an absurdly small house on a normal lot or an unreasonably large lot for a normal house"]).
It seems clear that such zoning restrictions were never designed to combat the erection of primarily underground housing levels which do not contribute to bulky, high- rise 106*106 development.[2] It is eminently logical that cellars, housing levels that are more than halfway below the ground, would be excluded from FAR calculations notwithstanding the actual or intended use of the space. Consistent with the purpose of FAR restrictions to control building density, it should be noted that basement space, also defined in the Zoning Resolution in terms of its physical location within a building as being more than halfway above ground, is included in FAR calculations to the same extent as similarly situated space. Contrary to the views expressed in the dissenting opinion, we find nothing in zoning treatises, California case citations or the legislative history of the 1990 amendment to the Zoning Resolution that would indicate a contrary legislative intent regarding the 1961 amendments to the Zoning Resolution which excluded cellars, in unqualified language as to the intended use, from FAR calculations.
In sum, BSA urges this Court to disregard the plain meaning of the Zoning Resolution because (1) the former version of the Zoning Resolution should be binding upon any interpretation of the amended language thereof; (2) BSA's interpretation is consistent with an outdated version of the Multiple Dwelling Law; (3) the Zoning Resolution was amended to require cellars to be measured from the surrounding ground level rather than curb level to prevent overexcavation of lots; (4) BSA has inconsistently interpreted the Zoning Resolution in a particular manner; and (5) BSA seeks to prevent overcrowding through provisions designed to control physical bulk of buildings. We find such arguments to be unpersuasive.
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This Court has long applied the well-respected plain meaning doctrine in fulfillment of its judicial role in deciding statutory construction appeals. We agree that "[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate 107*107the intent of the Legislature," but we have correspondingly and consistently emphasized that "where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208[emphasis added] [citations omitted]; see, Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 674-675).
We have provided further clear teaching and guidance that "[a]bsent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute," because "no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal" (Bender v Jamaica Hosp., 40 N.Y.2d 560, 562 [emphasis added] [citations omitted]). Lastly, "[t]he courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them" (id. [emphasis added]). Based on this Court's adherence to these respectable principles and precedents as primary sources of authority for the legitimacy of the plain-meaning doctrine, we reject the dissent's characterization of the statutory construction tool generally and as applied in this case.
BSA's interpretation is not only against the plain meaning of the resolution's text and contrary to the Multiple Dwelling Law, but also contrary to the purpose behind FAR restrictions in general. There is no statutory or practical support for BSA's strained construction of the Zoning Resolution for FAR calculations. The solution here is for the City to legislate a different definition if that is its intent, to be manifested by the ordinance itself.
The Appellate Division order should be reversed, with costs, the petition granted and the determination of respondent Board of Standards and Appeals revoking petitioners' building permit annulled.
LEVINE, J. (dissenting).
We respectfully dissent. This case presents an unfortunate yet graphic example of the plain- meaning doctrine in operation, eschewing as it does other sources and evidence of legislative intent, such as context, legislative history and the purpose of the enactment. The majority appears to elevate the plain-meaning rule to a point of interpretive primacy not supported by our precedents. Although, to be sure, our Court has employed plain-meaning arguments in the past (see, e.g., Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208; 108*108 Bender v Jamaica Hosp., 40 N.Y.2d 560, 561-562), our prevailing view has been, wisely, that the overarching duty of the courts in statutory interpretation is always to ascertain the legislative intent through examination of all available legitimate sources. "The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to `defeat the general purpose and manifest policy intended to be promoted'" (People v Ryan, 274 N.Y. 149, 152; see, Matter of Sutka v Conners, 73 N.Y.2d 395, 403; Matter of Albano v Kirby, 36 N.Y.2d 526, 529-531; Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38).
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Chief Judge Breitel articulated well the predominant view of this Court in New York State Bankers Assn. v Albright (38 N.Y.2d 430): "Absence of facial ambiguity is * * * rarely, if ever, conclusive. The words men use are never absolutely certain in meaning; the limitations of finite man and the even greater limitations of his language see to that. Inquiry into the meaning of statutes is never foreclosed at the threshold" (id., at 436). The Court went on to quote, with approval, the Supreme Court's opinion in United States v American Trucking Assns. (310 US 534, 544):
"`Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of the legislation as a whole" this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination"'" (New York State Bankers Assn. v Albright, 38 NY2d, at 437, supra [emphasis supplied]).
Criticism of the plain-meaning doctrine has long been expressed by legal scholars as frustrating legislative objectives and placing unrealistic demands upon the legislative process (see, Murphy, Old Maxims Never Die: The "Plain-Meaning Rule" and Statutory Interpretation In The "Modern" Federal Courts, 75 Colum L Rev 1299 [1975]). More recently, in the current debate over the "new textualism" (see, e.g., Eskridge, The New Textualism, 37 UCLA L Rev 621 [1990]; Shapiro, Continuity and Change in Statutory Interpretation, 67 NYU L Rev 921 109*109 [1992]), legal and linguistic scholars have criticized the plain-meaning doctrine for oversimplifying the task of interpretation and for, itself, creating new interpretative problems (see, Cunningham, Levi, Green and Kaplan, Plain Meaning and Hard Cases, 103 Yale LJ 1561 [1994], reviewing Solan, The Language of Judges [1993]).
Simply put, even if a court might encounter that rare case where the words of a statute are so utterly and indisputably clear (notwithstanding the litigants' dispute over their meaning) that the court could correctly interpret the statute's meaning merely by reading its words, this is not that case.
The issue here is whether space to be used as actual living quarters, located partly below ground at the lowest level of a house in a residential zoning district, is to be excluded from the calculation of the floor area ratio (FAR) under New York City Zoning Resolution § 12-10. The applicable FAR, as the majority points out (majority opn, at 101), would limit the total floor area of petitioners' residential building to 50% of the square footage of the lot on which it is situated.
Petitioners claim that the space, irrespective of its use as a dwelling unit, falls literally within the definition of "cellar" space introduced in a 1990 amendment to Zoning Resolution § 12-10, as "space wholly or partly below the base plane, with more than one half its height (measured from floor to ceiling) below the base plane" (NY City Zoning Resolution § 12-10, "cellar" [emphasis in original]). Section 12-10 excludes cellar space as such from the floor area numerator of the FAR (see, id., § 12-10, "Floor area" — exclusions [a]).
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Respondents, constituting the Board of Standards and Appeals of the City of New York (BSA) and the New York City Department of Buildings, however, determined that the cellar space exclusion was inapplicable here because the space in question is not used as a cellar but, rather, as a subsurface apartment. Supreme Court and the Appellate Division agreed (231 AD2d 725). The BSA relied upon, among other things, subdivision (g) of the floor area component of section 12-10, which directly applies to the space at issue, mandating that floor area includes:
"any other floor space used for dwelling purposes, no matter where located within a building, when not specifically excluded" (NY City Zoning Resolution § 12-10 ["Floor area" (g); emphasis supplied]).
The majority holds that subdivision (g) does not require 110*110 petitioners' partly below ground living quarters to be included in floor area because cellar floor space is "specifically excluded." Therefore, the majority reasons, a cellar always falls within the exception to subdivision (g), which otherwise includes all space used for dwelling purposes irrespective of its location in the building (id.).
To be sure, the "specifically excluded" exception to the inclusion of all space devoted to dwelling purposes under subdivision (g) can be read, as interpreted by the majority, to refer to any space excluded elsewhere in the Zoning Resolution. Nevertheless, the provision can be read with at least equal plausibility not to apply to cellar living quarters. Thus, the "specifically excluded" exception can easily be interpreted as applying only to "floor space used for dwelling purposes" (id.) which is specifically excluded as such elsewhere in the statute. Reading the exception in this fashion, since cellar space used for dwelling purposes is not "specifically excluded" from floor area anywhere in the Zoning Resolution, the BSA correctly determined that the floor space of petitioners' subsurface apartment had to be counted in the FAR calculation.
The foregoing contrasting interpretations of the treatment of dwelling space/floor area in Zoning Resolution § 12-10 present a paradigm of what linguists refer to as "structural ambiguity [in which] interpretive difficulties arise not from indeterminacy as to the meaning of individual words but from ambiguity as to the relationship of the words in a sentence structure" (Cunningham, Levi, Green and Kaplan, Plain Meaning and Hard Cases, 103 Yale LJ, at 1570 [emphasis supplied]). Here, the text of subdivision (g) alone does not resolve the issue as to whether the "specifically excluded" phrase in that provision refers to any space otherwise expressly excluded from floor area, or solely to any "other floor space used for dwelling purposes" specifically excluded as such (see, NY City Zoning Resolution § 12-10 "Floor area" [g] [emphasis supplied]). For us, the irrefutable existence of that ambiguity is sufficient to resolve this appeal in the Board's favor. We would defer to the BSA's interpretation, the agency we have recognized as having responsibility for implementing the statutory purposes of New York City Zoning Resolution § 12-10, which not even petitioners dispute is consistent with the general policy of this FAR legislation. Moreover, as the BSA points out, the statute explicitly directs that in the event of an internal conflict between provisions in the regulations over the bulk of buildings, the "more restrictive" provision controls (NY City Zoning Resolution § 11-22).
44
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111*111Even without according deference to the BSA's interpretation, inclusion in floor area of cellar space used for dwelling purposes, because space used that way is not otherwise "specifically excluded," represents a sounder reading of the "dwelling purpose" inclusory language of subdivision (g), and is more consistent both with section 12-10 as a whole, and with the legislative history and transcendent purpose of the Zoning Resolution.
First, consistent with the BSA's interpretation, Zoning Resolution § 12-10 actually contains a defined floor space used for dwelling purposes which is "specifically excluded" as such from floor area. Under subdivision (i) of the exclusionary portion of section 12-10, the lowest stories of qualifying houses in specific residential zoning districts are excluded from floor area if used as a "furnace room, utility room, auxiliary recreation room" (NY City Zoning Resolution § 12- 10, "Floor area" — exclusions [i] [3] [emphasis supplied]). Thus, it is readily apparent that what was contemplated in the "specifically excluded" exception to the catchall provision (otherwise including in floor area all space used for dwelling purposes) was those particular spaces devoted to some dwelling uses, which the legislative body determined were not to be counted as floor area in the FAR calculation. This conclusion is reinforced by the fact that both subdivision (g) of the floor area definitional portion of section 12-10, in its present form, and the specific exclusion of certain lower story space utilized for dwelling purposes such as a utility or recreation room, were added simultaneously to the Zoning Resolution in 1961. Thus, the most plausible explanation for the insertion of the "specifically excluded" exception was to avoid conflict between the foregoing provisions.
The majority's interpretation relies heavily upon the fact that, whereas the 1916 Zoning Resolution expressly excluded from floor area basements and cellars only when "`not devoted to residence use,'" the 1961 recodification flatly excluded cellars without the nonresidential use qualification (see, majority opn, at 103, 106). However, the 1961 resolution substituted the floor area catchall provision contained in subdivision (g) for the 1916 specific exclusion of nonresidential cellar and basement space (see, NY City Zoning Resolution § 12-10, "Floor area" [g] [including in floor area any space used for dwelling purposes "no matter where located"] [emphasis supplied]). It was, therefore, unnecessary to retain the 1916 nonresidential use qualification in the 1961 Zoning Resolution cellar space exclusion. Thus, the absence of that nonresidential use qualification 112*112 in the cellar exclusion is of no significance whatsoever in interpreting the all-inclusory dwelling space language in subdivision (g) of the 1961 resolution (still in effect), which is the dispositive issue in this case.
It is also highly unlikely that in the 1961 FAR recodification, the legislative body had the intent ascribed to it by the majority, i.e., to permit exclusion from floor area of cellar space used for residential purposes. In the general purpose clause of the 1961 Zoning Resolution, subdivision (d) recites that a specific purpose of the resolution was "[t]o protect residential areas against congestion, as far as possible, by regulating the density of population" (NY City Zoning Resolution § 21-00 [d], Statement of Legislative Intent [emphasis supplied]). Permitting cellar area devoted to residential use to be excluded from the numerator of the FAR formula hardly comports with that purpose.
45
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Moreover, the legislative history of the present "base plane" definition of excluded cellar space in Zoning Resolution § 12-10, upon which petitioners concededly must rely in order to exclude, from the FAR, the lowest level living quarters of its building, makes it absolutely clear that the "base plane" definition was never intended to change the settled construction of the prior law which limited the exclusion to "true" cellar space (as commonly understood) and not space, as urged by petitioners, used as a cellar apartment. The present "base plane" definition was added in a 1990 amendment to Zoning Resolution § 12-10. Prior to 1990, and at least as early as 1961, section 12-10 differentiated between basement space and cellar space, and the difference in treatment was maintained in the current statutory scheme. Basement space, even when not used for dwelling purposes, was previously and still is included in floor area for determining the FAR. The definitions of basement space and cellar space were (and are) complementary and employed essentially to differentiate one from the other.
As explained in the legislative memorandum in support of the 1990 amendment, the differences between basement and true cellar spaces were originally defined in terms of their location in relation to the curb level of the building lot (see, New York Dept of City Planning, Lower Density Zoning, Proposed Follow-up Text Amendment: A Planning Report, at 35 [1990]). Under the 1961 Zoning Resolution, basement space was defined as space partly below curb level, with at least one half of its height above curb level (id.). Cellar space, although similar, was space whose height was more than one half below curb level (id.).
113*113The 1990 amendments only changed the benchmark differentiation between basement and cellar space from curb level to base plane (id., at 35-36). Significantly, this change was enacted to address the unintended result of the prior definition, which encouraged needless excavation of upwardly sloping lots in order to avoid having true cellar space counted as basement space, and thereby included in floor area (see, id., at 35). Thus, there is not even the hint of any indication that the decisive amendment of the definition of cellar space, upon which petitioners must rely, was intended to expand the cellar exclusion to space used for subsurface living quarters. Indeed, the manifestation of intent regarding the amendment was completely to the contrary. The 1990 amendment also contained a proviso for reverting the benchmark of the basement and cellar space differentiation back to curb level under certain circumstances "to reduce the potential abuse of this [base plane] provision by excavation of yards, turning cellars into floor space suitable for additional bedrooms and accessory units" (id., at 36 [emphasis supplied]).
Furthermore, as already pointed out, the function of the definition of cellar has nothing whatsoever to do with determining whether any cellar space actually used for dwelling purposes is to be excluded from floor area. Rather, in context, the definition is designed solely to differentiate cellar space from basement space, the latter space always being included in floor area irrespective of its nonuse for dwelling purposes.
Finally, the majority's application of the plain-meaning doctrine here, to permit the exclusion from floor area of cellar space converted to an actual dwelling unit, directly conflicts with the underlying purpose of the FAR concept embodied in New York City Zoning Resolution § 12-10. Contrary to the suggestion in the majority writing that the purpose of the FAR is an apparently
46
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aesthetic one, merely to restrict the bulk of buildings within the zoning district and therefore was "never designed to control population" (majority opn, at 105), and was "never designed to combat the erection of primarily underground housing levels which do not contribute to bulky, high-rise development" (majority opn, at 105-106), the well-recognized purpose of FAR residential zoning regulation is to control population density with its resultant adverse impact on quality of life and overtaxing of governmental services within the zoning district.
It should be self-evident and beyond dispute that the primary effect of restricting the amount of buildable floor space 114*114 for each building lot in a residential district, through a FAR, will be to limit the aggregate habitable space occupied by people within the zoning district, i.e., its population density.
As explained by Rohan, among the various height, bulk and density controls and "measurement restrictions imposed through the use of zoning power [are] * * * devices for limiting population density, i.e., minimum lot areas, frontage requirements and floor area ratio" (7 Rohan, Zoning and Land Use Controls § 42.01 [5], at 42-10 — 42-11 [1997] [emphasis supplied]; see generally, id., ch 42, at 42-1 ["Measurement Controls: Height, Bulk and Density"]). The Rathkopf treatise discusses zoning controls on building area, bulk and floor size, "including floor-area-ratio restrictions that are tied to overall lot size" (3 Rathkopf, Zoning and Planning § 34C.01, at 34C-1 [Ziegler 4th ed] [emphasis supplied]). The author characterizes the function of these controls as including "protection of public health and safety, [and] prevention of overcrowding and traffic congestion" (id., § 34C.02 [2], at 34C-6 [emphasis supplied]). Additionally, in Broadway, Laguna, Vallejo Assn. v Board of Permit Appeals, a leading early case on the validity of zoning regulation through FARs, the court stated that: "the consensus among zoning authorities is that, in terms of controlling population density and structural congestion, the technique of restricting the ratio of a building's rentable floor space to the size of the lot on which it is constructed possesses numerous advantages" (66 Cal 2d 767, 771, 427 P2d 810, 813 [emphasis supplied]). Indeed, ironically, the legislative report in support of the very amendment to Zoning Resolution § 12-10 relied upon by petitioners here is entitled "Lower Density Zoning, Proposed Follow-up Text Amendment" (New York Dept of City Planning [1990] [emphasis supplied]). Moreover, as previously noted, the general purpose clause of the 1961 Zoning Resolution militates strongly against the majority's interpretation of that law's modification of the cellar exclusion as permitting cellar residences to be omitted from the FAR equation.
Thus, petitioners' interpretation of section 12-10 (adopted by the majority here), permitting a developer to set up a cellar dwelling unit not subject to FAR restrictions, is diametrically opposed to the basic purposes of the Zoning Resolution. This alone should be enough to reject petitioners' interpretation, even if the "plain meaning" of the words supported that interpretation (see, New York State Bankers Assn. v Albright, supra, quoting United States v American Trucking Assns., supra; see also, Cabell v Markham, 148 F.2d 737, 739 [Hand, J.] ["The defendants have no answer except to say that we are not free to depart from the literal meaning of the words, however transparent may be the resulting stultification of the scheme or plan as a whole. Courts have not stood helpless in such situations; the decisions are legion in which they
47
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have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute"], affd 326 US 404).
115*115Because the pertinent provisions of New York City Zoning Resolution § 12-10 are at the least ambiguous, and because the BSA's interpretation of subdivision (g) is consistent with section 12-10 as a whole, its legislative history and patent statutory purpose, we would uphold the Board's determination and affirm the dismissal of the petition by the courts below.
Order reversed, etc.
[1] The dissent interprets the exclusionary language to apply to dwelling space "which is specifically excluded as such" (dissenting opn, at 110 [emphasis in original]). The provision, of course, is not so limited. Where, as here, the language is unambiguous, and the result not absurd, we see no reason to depart from the legislative text.
[2] In a 1990 Planning Report prepared by the Department of City Planning, it is stated that under current regulations, a "cellar does not count as floor area" and "cellars are exempt from floor area calculations" (see, New York Dept of City Planning, Lower Density Zoning, Proposed Follow-up Text Amendment: A Planning Report, at 35, 37 [June 1990]). Previously, the resolution defined a cellar as more than halfway below "curb" level which caused developers to "level" lots so that a ground floor could still qualify as a "cellar." The Zoning Resolution was amended to provide that "the base plane [ground], and not curb level, be the benchmark for determining whether floor space is a basement or cellar." Thus, a basement, "with more than half its height" above the ground would count as floor area but cellars on sloping sites, even if situated above "curb level" would be excluded in such calculations.
48
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* 0 , 0 1 5 LOT PLAN DIAGRAM AXONOMETRIC DIAGRAM LEGEND SECTION DIAGRAM i\MMANN 13 D3S1NG TREES WEST END AVENUE <-118 NOT TO SCALE NOT TO SCALE NOT TO SCALE OM WIDE STREET)EXIST. CURB ElElPROPOSED BUILDING 223.83' C2 -51R-8 LOT AREA Buildings 15829' CUT 22,383 1 esF OPEN SPACE ZD1 Zoning Diagram Must be typewritten. REAR YARD co CC
ZONING LOT LINE DEPT BLDGS Job No. 122887224 OUT
50' LIMITS OF PROPERTY LINE STREET WALL Iiiii11111i11111i1111allimi11111imm111111will EXISTING TREE L1.1 CC Submitted to resolve objections stated in a PROPOSED TREE notice of intent to revoke issued pursuant to 55'-3' rule 101-15. 74.1T 148' CID El Yes No
PERMITTED OBSTRUCTION BLOCK 1 Location Information C2-5 R8 LOT AREA PER ZR-23-62G & 12-10 4-42c11' ZONING LOT 110,794 SF 12,042 AGGREGATE WIDTH OF House No(s) 200 SF STREET WALL Street Name AMSTERDAM AVENUE
PROPOSED BOLDING (55 STORY) CO Borough Manhattan CC d.--241-01 C2-5/ cc Block 1158 PERMITTED OBSTRUCTION Lot 133 3,231 SF PER ZR-23-62 SKYPLANE BIN 1030358 7.8.1 EXIST CURB CUT T.O. CURB EL=78.50' Falsification of any statement is a T.O. CURB EL=77.99' 32.1 120.47 4 PROPOSED TREES + misdemeanor and is punishable by a fine or NOTE 152.73' 100.3' ALL ELEVATIONS ABOVE imprisonment, or bothIt is unlawful to give NAVD BB STANDARD to a city employee, or for a city employee to AMSTERDAM AVE C2-5/118 accept, any benefit, monetary or otherwise, owWIDE STREET) either as a gratuity for properly performing the job or in exchange for special consideration. Violation is punishable by ENLARGED PARTIAL SITE PLAN DIAGRAM- PROPOSED STREET WALL & SKY PLANE imprisonment or fine or both. I understand PER ZR-23-64 that if I am found after hearing to have 1.= 60-0° 120.42' knowingly or negligently falsified or allowed to be falsified any certificate, form, signed K--xNORTH statement, application, report or certification of the correction of a violation required under the provisions of this code or of a rule of any 44)P agency, I may be barred from filing further applications or documen s with the Department. SETBACK PER ZR-23-64 Name (plea ZR23-32 MINIMUM LOT HOWA lc;WIDTH = 18'
o MINIMUM LOT I, LI AREA= 1700SF
irto
Nk FRONT SETBACK ...... a./ 1seal,. then si n and date over sea PER ZR 23-64
100.4' TO NEAREST CORNER Internal Use Only
STREET TREES BIS Doc # PER ZR 26-40 AMSTERDAM AVE. 668' BUILDING HEIGHT (WIDE STREET -1001 PI AN FXAMINEELSIGNVELDATE 6/09 27957 - ZD1-406851 pdf
NYC ZD1 Zoning Diagram Buildings Must be typewritten. Sheet 1 of 2
ZD1 Sheet 1 of 2
1 Applicant Information Required for all applications. 4Proposed Floor Area Required for all applications. One Use Group per line. Last Name ELKUS First Name HOWARD Middle Initial F Business Name ELKUS / MANFREDI ARCHITECTS, Business Telephone (617) 426-1300 Building Code Gross Zoning Floor Area (sq. ft.) Floor Number Floor Area (sq. ft.) Use Group Residential Business Address 25 DRYDOCK AVENUE Business Fax (617) 426-7502 Community FacilityCommercial Manufacturing FAR City BOSTON State MA Zip 02210 Mobile Telephone () - 10 9030 2 8406 0 0 0 .08 E -Mail License Number 018768 11 9030 2 8406 0 0 0 .08 12 9030 2 8438 0 0 0 .08 2Additional Zoning Characteristics Required as applicable. 13 9030 2 8438 0 0 0 .08 Dwelling Units 112 Parking area sq. ft. Parking Spaces: Total Enclosed 14 9030 2 8438 0 0 0 .08 3BSA and/or CPC Approval for Subject Application Required as applicable. 15 9030 2 8438 0 0 0 .08
Board of Standards & Appeals (BSA) 16 9019 2 8427 0 0 0 .08 0 Variance Cal. No. 72-21 Authorizing Zoning Section 17 9019 2 8364 0 0 0 .08 El Special Permit Cal. No. Authorizing Zoning Section 18 9019 2 8364 0 0 0 .08 El General City Law Waiver Cal. No. General City Law Section 19 9019 2 8364 0 0 0 .08 1:1 Other Cal. No. 20 9019 2 8364 0 0 0 .08 City Planning Commission (CPC) 21 9019 2 8364 0 0 0 .08 0 Special Permit ULURP No. Authorizing Zoning Section 22 9019 2 8364 0 0 0 .08 El Authorization App. No. Authorizing Zoning Section 1:1 Certification App. No. Authorizing Zoning Section 23 9019 2 0 0 0 0 0 El Other App. No. 24 8834 2 8367 0 0 0 .08
25 8279 2 7812 0 0 0 .07 4Proposed Floor Area Required for all applications. One Use Group per line. 26 8279 2 7812 0 0 0 .07
Building Code Gross Zoning Floor Area (sq. ft.) 27 8279 2 7812 0 0 0 .07 Floor Number Floor Area (sq. ft.) Use Group ResidentialCommunity FacilityCommercial ManufacturingFAR 28 8085 2 7632 0 0 0 .07 SC2 4703 2 0 0 0 0 0 29 7530 2 7115 0 0 0 .06 SC1 11,832 2 0 0 0 0 0 30 7530 2 7109 0 0 0 .06 C 11,832 2 0 0 0 0 0 31 7530 2 6785 0 0 0 .06 1 10,700 2 7390 0 0 0 .07 32 7346 2 6937 0 0 0 .06 1 10,700 4 0 2725 0 0 .02 33 6791 2 6382 0 0 0 .06 2 10,657 2 9886 0 0 0 .09 34 6791 2 6382 0 0 0 .06 3 9041 2 8542 0 0 0 .08 35 6791 2 6382 0 0 0 .06 4 9041 2 8417 0 0 0 .08 36 6597 2 6277 0 0 0 .06 5 9041 2 8417 0 0 0 .08 37 6042 2 5671 0 0 0 .05 6 9041 2 8417 0 0 0 .08 38 6042 2 5671 0 0 0 .05 7 9030 2 8406 0 0 0 .08 Totals 8 9030 2 8406 0 0 0 .08 ,V7 t'i/i, I I
9 9030 2 8406 0 0 .08 Total Zoning Floor Area
6/09 27957 - ZD1-406851.pdf 11\EMMMIN ZD1 Zoning Diagram Buildings Must be typewritten. Sheet 2 of 2
ZD1 Sheet 2 of 2
1 Applicant Information Required for all applications. 4Proposed Floor Area Required for all applications. One Use Group per line. Last Name ELKUS First Name HOWARD Middle Initial F Business Name ELKUS / MANFREDI ARCHITECTS, Business Telephone (617) 426-1300 Building Code Gross Zoning Floor Area (sq. ft.) Floor Number Floor Area (sq. ft) Business Address 25 DRYDOCK AVENUE Business Fax (617) 426-7502 Use Group ResidentialCommunity FacilityCommercial Manufacturing FAR city BOSTON State MA Zip 02210 Mobile Telephone ( ) - 52 3468 2 0 0 0 0 0
E -Mail License Number 018768 53 3468 2 0 0 0 0 0
54 3468 2 0 0 0 0 0 2Additional Zoning Characteristics Required as applicable. 55 437 Dwelling Units 112 Parking area sq. Parking Spaces: Total Enclosed 2 0 0 0 0 0
3BSA and/or CPC Approval for Subject Application Required as applicable.
Board of Standards & Appeals (BSA) Existing 200 West End Av Lot 65 El Variance Cal. No. Authorizing Zoning Section 72-21 1-27 316372 2 244,727 13,520 2.33 El Special Permit Cal. No. Authorizing Zoning Section El General City Law Waiver Cal. No. General City Law Section El Other Cal. No.
City Planning Commission (CPC)
El Special Permit ULURP No. Authorizing Zoning Section El Authorization App. No. Authorizing Zoning Section El Certification App. No. Authorizing Zoning Section ID Other App. No.
4Proposed Floor Area Required for all applications. One Use Group per fine.
Building Code Gross Zoning Floor Area (sq. ft) Floor Number Floor Area (sq. ft.) Use Group ResidentialCommunity FacilityCommercial Manufacturing FAR
39 6042 2 5671 0 0 0 .05 40 5848 2 5566 0 0 0 .05
41 5293 2 5011 0 0 0 .05 42 5293 2 5011 0 0 0 .05
43 5293 2 5011 0 0 0 .05
44 5109 2 4821 0 0 0 .04
45 4554 2 4266 0 0 0 .04 46 4554 2 4266 0 0 0 .04 47 4554 2 4266 0 0 0 .04
48 4341 2 4028 0 0 0 .04 Proposed 200 Amsterdam Av Lot 133 49 3786 2 3488 0 0 0 .03 Totals 422,953 //74347,961 2725 13.171 50 3786 2 3473 0 0 0 .03
51 3786 2 3488 0 0 0 .03 Total Zoning Floor Area 350,686
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