IN RE: STOP IRRESPONSIBLE FRICK DEVELOPMENT et al. (2022)

Judgment (denominated an order), Supreme Court, New York County (Debra A. James, J.), entered December 16, 2020, denying the petition to annul the resolution of respondent New York City Board of Standards and Appeals (BSA), dated March 17, 2020 and filed May 11, 2020, which approved respondent The Frick Collection's application for a zoning variance, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

As an initial matter, we decline to dismiss this appeal as moot, in accordance with this Court's October 12, 2021 decision denying The Frick Collection's motion to dismiss (2021 N.Y. Slip Op. 72997[U], 2021 WL 4737256 [1st Dept. 2021]).

Nonetheless, we find that the BSA providently exercised its “wide discretion” when granting the variance, as the determination “has a rational basis and is supported by substantial evidence” (Matter of SoHo Alliance v. New York City Bd. of Stds. & Appeals, 95 N.Y.2d 437, 440, 718 N.Y.S.2d 261, 741 N.E.2d 106 [2000];  see CPLR 7803[3]).  The BSA appropriately “set forth each required finding,” including a lengthy discussion of The Frick Collection's programmatic goals and several alternatives, when determining that the variance applied for was the “minimum variance necessary to afford relief” (Zoning Resolution § 72–21[e]).  Petitioners’ contention that the BSA set forth no facts and failed to consider alternatives is belied by the lengthy discussion in the resolution.

The BSA also providently issued a “negative declaration” finding “that the environmental impact is not significant” (Matter of Spitzer v. Farrell, 100 N.Y.2d 186, 190, 761 N.Y.S.2d 137, 791 N.E.2d 394 [2003];  see ECL § 8–0109[4];  6 NYCRR 617.7[a][1]-[2]).  “ ‘[T]he Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives’ ” (Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416, 430, 68 N.Y.S.3d 382, 90 N.E.3d 1253 [2017], quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986]).  The record shows that the BSA “identified the relevant areas of environmental concern,” specifically, historic and cultural resources such as the Music Room, which petitioners sought to preserve, “took a hard look at them, and made a reasoned elaboration of the basis for its determination” (Matter of Friends of P.S. 163, 30 N.Y.3d at 430, 68 N.Y.S.3d 382, 90 N.E.3d 1253 [internal quotation marks omitted];  see Matter of Chinese Staff & Workers’ Assn. v. Burden, 19 N.Y.3d 922, 924, 950 N.Y.S.2d 503, 973 N.E.2d 1277 [2012]).  The BSA also appropriately sought input from the Landmarks Preservation Commission and relied on its expertise (see Matter of Landmark West! v. Burden, 15 A.D.3d 308, 309, 790 N.Y.S.2d 107 [1st Dept. 2005]).

We have considered petitioners’ remaining contentions and find them unavailing.