In Pantelidis v. New York City Board of Standards and Appeals , a divided panel of the Appellate Division, First Department, engaged in a bitter "cat fight" over whether the New York County Supreme Court had properly ordered a variance's issuance.
The underlying dispute involved the construction of a glass-enclosed staircase at the rear of George Pantelidis's townhouse.
When Pantelidis's permit was invalidated after construction had been completed, he was denied a variance by the Board of Standards and Appeals (BSA), which refused to address whether Pantelidis had relied in good faith on the invalidated permit. Pantelidis then filed an "Article 78 proceeding" in New York County Supreme Court, seeking to overturn the BSA's decision.
After the Supreme Court opted to examine the good-faith reliance issue, the BSA appealed to the Appellate Division, First Department, contending that the matter should have been remanded to the administrative agency for that determination.
The AD1 did not concur and concluded that the Supreme Court could proceed with a hearing because the record was sufficiently developed and the BSA had had an opportunity to examine all issues, but had declined to do so.
When the Supreme Court ultimately granted the variance, the BSA again appealed to the AD1 and a different appellate panel affirmed the Supreme Court's determination, but, this time, with an unseemly contentiousness.
The majority was most annoyed at having to address whether it should consider the dispute's merits, and concluded that its prior decision was binding "law of the case" -- a fact which a lone dissenter apparently "fail[ed] to come to grips with."
The "fundamental disagreement" was over the judiciary's role when reviewing agency determinations -- a function which the dissent characterized as a "separation of powers" issue. According to Justice McGuire, "determinations are to be made in the first instance by the agency" and the courts' "limited role" is to ensure the agency is not acting in an arbitrary and capricious manner. Under the dissent's framework, the majority would require "clairvoyance and confidence" to affirm the variance because it would need to predict how the BSA would have acted and then need to determine whether that hypothetical action was arbitrary and capricious.
According to the dissent, the delineated compartmentalization was also necessary because "sensitive planning decisions" require the BSA's technical expertise, a competence McGuire believes our courts lack.
The dissenter further charged the majority with "fail[ing] to come to grips with" the fact that good-faith reliance was not the only issue to be adjudicated. The BSA could also base a ruling on such technical questions as whether:
(i) granting the variance would alter the nature of the neighborhood; or
(ii) it is the "minimum variance necessary to afford relief."
While fundamental disagreements on legal issues are to be expected, the bitter tone set by this AD1 opinion is unacceptable.
The majority's impatience with the dissent, and the dissenter's characterization of the panel's arguments as "insupportable" and "beyond [the Court's] competence and expertise," just didn't hit us right.
Let's just say it struck us as ironic that a court entrusted and encharged with resolving disputes, appears incapable of resolving one of its own.
To download a copy of the Appellate Division's decision, please use this link: Pantelidis v. New York City Board of Standards and Appeals