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SUPREME COURT OF THE STATE OF NEW YORK
::il:.::.):yl?Y ...........x
In the Matter of the Application of
BAYCHESTER RETAIL III LLC,
Petitioner,
Index No. 15759612017
For a Judgment Under Article 78 of the Civil Practice Law
and Rules,
-against-
MARGERY PERLMUTTER, CHAIR, SHAMPA
CHANDA, VICE-CHAIR, ANd DARA OTTLEY-
BROWN, COMMISSIONER, constituting THE BOARD
OF STANDARDS AND APPEALS OF THE CITY OF
NEW YORK,
Respondents
RESPONDENTS' MEMORANDUM OF LA\ü IN SUPPORT OF THEIR
CROSS-MOTION TO DISMISS THE VERIFIED PETITION
ZACHARY V/. CARTER
Corporation Counsel of the
City of New York
100 Church Street Room 5-178
New York, New York 10007
(2r2) 3s6-2191
Sheryl K. Neufeld
Shenill Kurland
Adam M. Moss
of Counsel
November 9,2017
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of
BAYCHESTER RETAIL III LLC,
Petitioner,
Index No. 157596120T7
For a Judgment Under Article 78 of the Civil Practice Law
and Rules,
-against-
MARGERY PERLMUTTER, CHAIR, SHAMPA
CHANDA, VICE-CHAIR, ANd DARA OTTLEY-
BROWN, COMMISSIONER, constituting THE BOARD
OF STANDARDS AND APPEALS OF THE, CITY OF
NEW YORK,
Respondents.
RESPOND NTS' MtrMORAND OF LAW IN SUPPORT O F'THEIR
CROSS.MOTI ON TO DISMISS THE PETITION
PRELIMIN STATEMENT
MARGERY PERLMUTTER, CHAIR, SHAMPA CHANDA, VICE-CHAIR, ANd
DARA OTTLEY-BROWN, COMMISSIONER, constituting THE BOARD OF STANDARDS
AND APPEALS OF THE CITY OF NEW YORK, (collectively, "BSA," the "Boatd," of
"Respondents"), by their attorney, ZACHARY V/. CARTER, Corporation Counsel of the City of
New York, submit this memorandum of law in support of their cross-motion to dismiss the
Verified Petition pursuant to CPLR $$ 3211(a)(2), 3211(a)(7), and 7804(f) on the grounds that:
a) the petition fails to state a cause of action for awrit of prohibition; b) the petition fails to state
a cause of action for a writ of mandamus; and c) the Coutt lacks subject matter jurisdiction
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because petitioner has failed to exhaust its administrative remedies and thus its alleged claims are
not ripe for judicial review.
Beginning in2013, petitioner sought approval to install signage at a lot owned by
petitioner at 200I Bartow Avenue (the "subject Property"). The Department of Buildings
("DOB") denied petitioner's request for a zoning determination that would have permitted the
signage to be constructed as of right. Petitioner appealed the DOB determination to the BSA,
which denied petitioner's application and upheld the DOB determination, by resolution dated
May 3, 2016 (the "Bartow I BSA Resolution"). Petitioner filed an Article 78 petition
challenging the Bartow I BSA Resolution; Judge Edmead denied the petition and upheld the
BSA's determination. Petitioner's appeal of Judge Edmead's decision is currently pending in the
Appellate Division, First Department.
Separately, petitioner has filed a second application with the BSA ("Bartow II"),
appealing a subsequent DOB Denial, which seeks approval of similar signage at the Subject
Property. The Bartow II application has undergone three rounds of'public hearings at the BSA,
and a final determination in connection with the application is scheduled to be made by the BSA
on December 12,2017. Rather than await the BSA's final determination on Bartow II, petitioner
has filed the instant litigation, seeking for this Court to preemptively weigh in on the BSA's
upcoming decision. Petitioner speculates herein that the BSA's upcoming decision in Bartow II
will impermissibly reverse or modify the Bartow I BSA Resolution.
Accordingly, the Verified Petition dated August 24,2017, seeks, inter alia, an
Order from this Court: i) prohibiting the RSA from retroactively reversing or modifying the
Bartow I BSA Resolution; and ii) directing the BSA to apply the findings of the Bartow I BSA
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Resolution to its upcoming resolution in connection with the Bartow II application. See Verified
Petition, Wheretbre Clause.
As set forth below, the instant petition is plainly premature and should be
dismissed for three reasons.
First, petitioner seeks a writ of prohibition, "prohibiting the BSA from
retroactively reversing or modifying the [Bartow I] BSA Resolution." Verified Petition,
Wherefore Clause. However, the Court of Appeals has made explicit thata writ of prohibition
enjoining a judicial or quasi-judicial body from acting is an "extraordinary" remedy, only to be
invoked in limited circumstances. The extraordinary remedy of a writ of prohibition is not
warranted herein because BSA has not acted without or in excess of its jurisdiction, petitioner's
allegation that the BSA intends to reverse or modify the Bartow I BSA Resolution is purely
speculative, aîd, in any event, a writ of prohibition will not lie where, as here, an ordinary
remedy is available to the aggrieved party in the event that BSA takes action that petitioner
believes is improper. Specifically, even if the BSA's upcoming decision in Bartow II were to
have the effect of modifying or reversing the Barlow I BSA Resolution, petitioner would have an
ordinary remedy in that it could challenge the Bartow II determination by filing an Article 78
petition challenging such decision. The Court of Appeals has made clear that the extraordinary
remedy of prohibition should not be granted where an ordinary remedy is available to the
aggrieved party and, accordingly, there is no basis for a writ of prohibition.
Second, petitioner seeks a writ of mandamus, "directing the BSA to apply to
Baychcstcr's Rcvised Applications the cletermination made in the [Rartow f] RSA
Resolution. ..[.]" Verified Petition, Wherefore Clause. However, a writ of mandamus may only
be sought in order to compel a government entity to perform a non-discretionary duty that is
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required by law. The BSA clearly has discretion to approve or disapprove petitioner's pending
application appealing a DOB determination and to issue a written determination based on its
analysis of the complete administrative record. There is simply no basis for petitioner to seek for
this Court to intervene in an ongoing administrative process and require that the Board rule on
the merits of the Bartow II application in a specific manner; the administrative hearing is still
ongoing and BSA has discretion to issue a final determination based on the administrative record
developed therein.
Third, subject matter jurisdiction is lacking because petitioner's alleged claims are
not yet ripe for judicial review. It is black-letter law that the administrative review process must
be exhausted before a challenge to an agency determination is ripe for review. Both of
petitioner's aforementioned alleged causes of action are based on petitioner's speculation that the
BSA plans to deny their application in Bartow II and that this determination will constitute an
error of law because it impermissibly modifies the BSA's earlier findings in Bartow I. These
claims are premature and speculative. Pursuant to the New York City Charter, Administrative
Code, the Rules of the City of New York, and Court of Appeals case law, agency review must be
exhausted prior to resofiing to judicial review so that an administrative record may be compiled
and a clear, final determination based on such record can be issued by the agency. Here, the
BSA has yet to formally and finally act. It is not yet known whether the BSA will approve or
disapprove the pending application, or on what grounds their decision will be based, and the
record upon which this decision will ultimately be based is not before the Court. In any event,
cvclr if thc BSA were to oct in exactly the manner that petitioncr allcgcs hcro is improper,
petitioner will have every opportunity to appeal the decision on that basis and a court will be able
to issue an informed ruling based on its review of a fully developed administrative record.
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In summary, afrnal determination has not yet been issued herein, petitioner has
not suffered an injury, and petitioner will have a remedy pursuant to Article 78 if aggrieved by
the upcoming determination, which is scheduled to be rendered on December 12, 2017. For
these reasons, there is no basis in law for petitioner to seek for the Court to intervene at this time.
STATUTORY FRAMEWORK
Issuance and Challenge of DOB Zoning Determinations
Pursuant to its authority set forth in New York City Charter ("City Charter")
$ 641 et seq., DOB has jurisdiction to issue zoning approvals interpreting whether zoning
drawings conform with the New York City Zoning Resolution ("Z,Pt" or "Zoning Resolution").
Pursuant to City Charter $ 648, "appeals may be taken from decisions of the
commissioner [of DOB] and of a deputy commissioner or the borough superintendent acting
under a written delegation of power filed in accordance with the provisions of section six
hundred forty-two or subdivision (c) of section six hundred forty-five of this chapter, to the
board of stanclards ancl appeals as provided by law." See also New York City Administrative
Code ("Admin. Code") $ 28-103.4 ("[a]n appeal from any decision or interpretation of the
commissioner [of Buildings] may be taken to the board of standards and appeals pursuant to the
procedures of the board...[.]").
Pursuant to City Charter $ 666, the BSA has the authority to hear appeals
regarding DOB final determinations and make rules regarding the process for hearing such
appeals, as follows:
$ 666. Jurisdiction. The Board shall have power:
1. To make, amend and repeal rules and regulations
for canying into effect the provisions of the laws,
resolutions, rules and regulations in respect to any
subject-matter jurisdiction whereof is conferred by
law upon the board, and to include in such rules and
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regulations provisions applying to specific
conditions and prescribing means and methods of
practice to effectuate such provisions and for
carrying into effect the powers of the board.
{< {< * {<
6. To hear and decide appeals from and review,
(a) except as otherwise provided by law, any order,
requirement, decision or determination of the
commissioner of buildings or of a deputy
commissioner of buildings or any borough
superintendent of buildings acting under a written
delegation of power from the commissioner of
buildings filed in accordance with the provisions of
section six hundred forty-two or section six hundred
forty-five of this chart... [.]
Pursuant to the BSA Rules of Practice and Procedure, Title 2 RCNY $ 1-12.6, the
Board may:
...for good cause, on its own motion at a public
hearing, review any decision that it has made and
reverse or modify such decision, but no such review
will prejudice the rights of any person who has in
good faith acted thereon before it is reversed or
modifred. The Board will hear the motion to review
on the SOC calendar after notice by the Board to the
applicant and the owner of the subject property.
The Board at its discretion may elect to review such
decision on the case's original calendar if deemed
appropriate.
PROCEDURAL HISTORY AND RELEVANT FACTS
Petitioner Baychester Retail III LLC ("petitioner") is the owner of a site located at
2001 Bartow Avenue a.k.a. 500 Baychester Avenue, Block 5141, Lot 101, Bronx, New York
(the "suhject Property"). Petitioner began seeking approval from the City of New York to
construct signage at the Subject Property in 2013.
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Bartow I
On or about August 8, 2074, petitioner's representative applietl to DOB for a
zoning determination in connection with proposed signage at the Subject Property that would be
mounted on a large monopole. A copy of the zoning determination filed with DOB on August 8,
2014 (the *ZRDl") is annexed as Exhibit 1.r Specifically, petitioner sought a determination
from DOB that the signage to be mounted on the monopole should be considered 54 discrete
signs for zoning pu{poses, rather than one (l) sign. See Exhibit 1. The practical impact of
petitioner's request was that if the signage mounted on the monopole were considered to be one
(1) sign, itwould be far too large to be permitted to be constructed "as-of-right" due to size
limitations for signage in the applicable zoning district. However, if the signage were considered
to be 54 discrete signs, each would be small enough to be approved by DOB on its own "as-of-
right."
On January 26,2015, DOB First Deputy Commissioner Thomas J. Fariello denied
petitioner's request, indicating, in relevant part, that "[t]he request to consider each of the
proposed 54 illuminated advertising panels, located on two different vertical planes facing
opposite sides of a single supporting pole (27 panels on each side), as individual signs in which
the surface area of a sign is measured individually for each panel is hereby denied." Exhibit 1, p.
4.
Petitioner then proceeded to appeal the DOB ZRDI determination to the BSA,
where public hearings on the appeal were held on September I , 2075, October 20, 2075,
f)ecemher R, 201 5, Fehnrary 23, 2016, and March 22, 2016, On May 3, 2016^ BSA renderecl a
' Unless otherwise indicated, all exhibitsreferenced herein are annexed to the Affirmation of Adam M. Moss
("Moss Affirmation") in Support of Respondents' Cross-Motion to Dismiss, submitted herewith.
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final determination, the written resolution for which was officially filed on July 28,2016. After
considering all the evidence, the BSA, in a lengthy decision (the "Bartcrw I BSA Resolution,"
annexed as Exhibit 2), upheld the ZRD1, finding, in relevant paft, that "a majority of the Board
finds that the Subject Assembly is a single sign the surface area of which greatly exceeds that
which is permitted at its location, and, as such, the Final Determination [of DOB] is affirmed and
the subject appeal is denied." Exhibit 2,p.8.
As part of the decision, the Bartow I BSA Resolution also stated that "all of the
Commissioners agree that the Subject Assembly is a clear hazard to motorists on the New
England Throughway (an arterial highway) and, by virtue of its size, degree of illumination, and
close proximity to a dense residential development, a potentially significant nuisance." Exhibit 2,
p. 8. The Bartow I BSA Resolution also noted, "under the fpetitioner's] reasoning, the Subject
assembly could be enlarged ad infinitum, such that, provided each advertising panel was smaller
than 322 square feet of surface area and located no fewer than 12 inches apart from its adjacent
advertising panel, the aggregate size of the Subject Assembly could easily reach 30,000 sq. ft., or
more, clearly an absurd result not contemplated or sanctioned by the ZoningResolution." Exhibit
2, p. 9.Most notably, the Bartow I BSA Resolution included discussion about the potential
precedential value that would be set by the decision, with a minority of the BSA members
suggesting that a slight tweak of the sign by the applicant might make the sign acceptable-- but
the Bartow I BSA Resolution explicitly rejected this minority review. Accordingly' the Bartow
oocannot reach
I BSA Resolution explicitly states, that the BSA a determination as to any
signnge assembly other than that which is the suhject of this appeal," Exhibit 2,p. I0. Thtrs.
the BSA's official position in the Bartow I BSA Resolution was that any subsequently proposed
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sign, and related DOB zoning determination, would have to be reviewed on its own merits to
determine ifit contbrmed with the Zoning Resolution.
After the Bartow I BSA Resolution was issued, petitioner filed an Article 78
petition challenging the resolution, under Index No. 15709112016. Petitioner's Article 78
petition was dismissed in March 2017 andthe resolution was upheld as a reasonable and rational
determination of the BSA. See Bavchester Retail III .C v- Perlmutter et a1.. Index No.
15709112016, Edmead, J. (Sup. Ct., N.Y. County, Mar. 13,2017). Petitioner appealed Judge
Edmead's decision and such appeal is currently pending in the Appellate Division, First
Department.
Bartow II
On or about October 6,2016 (after the Bartow I BSA Resolution had been issued,
but before Judge Edmead had heard the Article 78 petition), petitioner filed a new ZRDI
application (the "second ZRDl") with DOB in connection with proposed signage at the Subject
Property. The Second ZRD1 application (annexed as Exhibit 3) featured a slightly difiþrent
design from the sign proposed as part of Bartow I. The new proposed signage was still affixed to
one monopole, but the new design consisted of two grids emanating from the monopole with
each component of the grid holding up one of the 54 individual video screen signs. On October
'Werner
7, 2017, DOB Bronx Borough Commissioner R. deFoe denied petitioner's request,
explaining as follows:
The request to allow the filing of multiple signs on
eauh surface r:rf a urouopole advetising sign
structure is denied,
BSA 35-15-A adopted May 3,2016 [i.e. the Bartow
I BSA Resolution] denied the request to consider a
sign surface assembly of multiple LED video
screens as multiple signs in large part by concluding
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that the video screen assembly is held up by a
unifying structure.
While the newly proposed "grid" holding the
individual screens differs from the "structure" used
for the sign assemblage considered in the BSA case
ultimately, the newly proposed "grid" is part of a
monopole, i.e.: every parl of the grid that holds up
the individual LED screens is held up by forces that
"travel" down to the monopole which holds up the
entire grid.
Therefore, independent of the particular formation
of the "grid" the structure holding up the individual
LED screens must be considered one structure and
following the BSA opinion each flat surface
assembly of video screens is to be considered one
sign.
Exhibit 3,p.4.
In other words, DOB determined that even though petitioner had made revisions
to the proposed signage that had previously been denied by both DOB and the BSA, the new
configuration still could not be considered 54 separate signs, rather than 1 sign, under the Zoning
Resolul.ion antl bascd ott tlte Bartow I BSA Resolution.
Petitioner proceeded to appeal the Second ZRD1 to the BSA by an application
dated November 10, 2016. Petitioner's appeal at BSA ("Bartow II") was duly noticed for a first
public hearing on March 2I,2071, and the hearing was continued for a second hearing on May
23,2077. The day prior to public hearings, the BSA holds Public Review Sessions at which
BSA Commissioners publicly share their observations, compare notes and pose questions for the
applicant regarding the applications calendared for public hearing the next day. At the second
Public Review Session for the Bafiow II appeal held on May 22,2071, BSA Chair Perlmutter
addressed a number of issues regarding the appeal, including a discussion of several of the
findings BSA had made in the Bartow I BSA Resolution and how those findings informed her
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review of the signage configuration proposed in Bartow II. See May 22, 2011 Public Review
Session Transcript, annexed as Exhibit 4.
The public hearing was subsequently continued on May 23,2017 and scheduled
for a third continued hearing on October 3, 2017. On October 2, 201J, another Public Review
Session was held and the public hearing was scheduled for a fourth hearing on October 3,2011.
The BSA closed the public hearing on October 3,201J, and scheduled the Bartow II application
for decision on December 72,2017.
The Instant Litieation
Despite the fact that the BSA public hearing process on Bartow II is stillongoing
and no final BSA resolution for the application has been issued, petitioner commenced the
instant litigation by Notice of Petition and Verified Petition2 dated Augu st 24, 20n .3 As part of
the Verified Petition, petitioner seeks, inter alia, an Order from this Court: i) prohibiting the BSA
from retroactively reversing or modifying the Bartow I BSA Resolution; and ii) directing the
BSA to apply the findings of the Bartow I BSA Resolution to its upcoming resolution in the
Bartow IIappeal. See Verified Petition, Wherefore Clause.
As set forth below, the petition should be dismissed pursuant to CPLR
Sg 321 1(a)(2),3211(a)(7), and 7804(f) on the grounds that: a) the petition failsto state a cause of
action for a writ of prohibition; b) the petition fails to state a cause of action for a writ of
mandamus; and c) subject matter jurisdiction to hear the petition is lacking because petitioner's
challenge is not ripe for judicial review, given that petitioner has not yet exhausted its
administrative remedies.
'A copy of the Verified Petition is annexed as Exhibit 5.
3
Petitioner then filed an Amended Notice of Petition, dated September 8,2011
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ARGUMENT
POINT I
PETITIONER HAS FAILED TO STATE A CAUSE
OUT OR CTION AND IN
EVENT A \ilRIT O PROHIBITION \ilILL NOT LIE E AN ORDINARY
REMEDY IS VAILABLE
In determining if a cause of action exists, the Court examines "whether there can
be fairly gathered from all the averments the requisite allegations of a valid cause of action,
cognizable by the courts of this State." Cohn v. Lionel Corp., 21 N.Y.2d 559, 562 (1968); see
also Leo v. Mt. St. Michael Acad. ,272 A.D.2d 145 (1st Dep't 2000). The petition fails to state a
cognizable claim for a writ of prohibition because the BSA is not acting without or in excess of
its jurisdiction and, in any event, a writ of prohibition will not lie where, as here, an ordinary
remedy would be available to petitioner if the agency acted in excess of its jurisdiction.
Article 78 provides for judicial review and relief in the nature of prohibition when
a petitioner demonstrates that a goverrìmental body or officer acting in a judicial or quasi-judicial
capacity is about to proceed in excess of its jurisdiction. See CPLR $ 7803(2). To the extent thaf
petitioner seeks to "prohibitf] the BSA from retroactively reversing or modiffing the fBartow I]
BSA Resolution," (Petition, Wherefore Clause) it seeks relief in the nature of prohibition. The
Court of Appeals has explained that "[a] writ of prohibition may be obtained only when a clear
legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial
capacity without jurisdiction in a matter over which it has no power over the subject matter or
where it exceeds its authorized powers in a proceeding over which it has jurisdiction...In light of
the reluctance to interfere with the normal, orderly administration ofjustice, an important factor
is the adequacy of other legal remedies to correct the asserted error; if there is an adequate
'ordinary' remedy, then there is no need to invoke the extraordinary remedy." Morgenthau
t2
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v. Erlbaum,59 N.Y.2d 143,141 (1953) (internal citations omitted) (emphasis added); see also
gg Lipari v. Owens,70 N.Y.2d 731,132-'33 (198'/); State of New York v. King, 36 N.Y.2d 59,
62 (1975) ("even ifthere has been an excess ofjurisdiction or power, the extraordinary remedy
will not lie if there is available an adequate remedy at law, of which appeal is but one, which
may bar the extraordinary remedy").4
In summary, the Court of Appeals has made explicit that a writ of prohibition is
an "extraordinary remedy," only to be invoked where a body is wholly without jurisdiction to act
or where the body is exceeding its authorized powers. And even then, a couft should not
intervene where there is an "ordinary" remedy available. Petitioner's claim asserted herein fails
to state a cause of action because the BSA has not exceeded its jurisdiction, there is no indication
beyond petitioner's bare speculation that it will do so and, most importantly, petitioner would
have an ordinary remedy in the event the BSA does arguably exceed its jurisdiction.
Petitioner admits that the BSA has jurisdiction to modify or reverse a prior
decision (see Title 2 RCNY $ 1-12.6); its contention is that BSA is about to exceed that authority
by reversing or modifying the Bartow I BSA Resolution without following its own procedure for
such a reversal, and, thus, that this Court should intervene before the BSA takes such action.
The Bartow I BSA Resolution currently remains in effect, having been upheld by
the Supreme Court as a reasonable and rational determination. The BSA has not taken any
action whatsoever to reverse or modify the Bartow I BSA Resolution. Petitioner theorizes, based
on comments made by BSA Chair Perlmutter and related comments by other Commissioners at a
a
It should be noted that even in cases where there is an excess ofjurisdiction and an adequate "ordinary" remedy
to grant a writ of prohibition, it merely has an ability to exercise its
may not be available, a court is still not required
discretion to grant such a writ. See e.g. La Rocca v. Lane, 37 N.Y.2d 515,519 (1975) ("[p]rohibition is not
mandatory, but may issue in the sound discretion ofthe coutt").
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Public Review Session, that the BSA's upcoming decision in Bartow II will effectively modify
or reverse the Bartow I BSA Resolution. Petitioner's contentiort, lltuuglt, fails fcrr tluee reasous.
First, comments made by BSA Commissioners during the course of their review
of an application are not equivalent to the BSA's fìnal determination, nor may they be ascribed
to other Commissioners who did not make such statements. Until an application before the BSA
has gone through public hearings and review and a final resolution is issued, the BSA has taken
no definitive position on an application. Petitioner's application could still be approved or
denied for reasons other than those discussed at the May 22 Public Review Session. For this
reason, as discussed at greater length infra Point III herein, an applicant must exhaust its
administrative remedies and obtain a final agency determination before litigating an appeal in a
court of law. Petitioner seeks to prohibit the BSA from acting despite the fact that petitioner
cannot possibly know for certain how the Board will vote or what the rationale will be for their
determination.
Second, even assuming arguendo that the Board intends to adopt some or all of
the positions expressed by the Chair at the }r4ay 22 Public Review Session in the written
resolution for Bartow II, it cannot be immediately inferred at this juncture that the Bartow I BSA
Resolution will necessarily become modified or reversed based on such a determination. In fact,
the Chair explicitly noted in her comments at the May 22 Public Review session that her views
on the pending application are consistent with and are, in fact, controlled by Judge Edmead's
decision, which upheld the Bartow I BSA Resolution. See Ex. 4, p. 3. So, rather than indicating
that the RSA wishes to exceed its authority and reverse the prior BSA Re
Preview
FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 SUPREME COURT OF THE STATE OF NEW YORK ::il:.::.):yl?Y ...........x In the Matter of the Application of BAYCHESTER RETAIL III LLC, Petitioner, Index No. 15759612017 For a Judgment Under Article 78 of the Civil Practice Law and Rules, -against- MARGERY PERLMUTTER, CHAIR, SHAMPA CHANDA, VICE-CHAIR, ANd DARA OTTLEY- BROWN, COMMISSIONER, constituting THE BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, Respondents RESPONDENTS' MEMORANDUM OF LA\ü IN SUPPORT OF THEIR CROSS-MOTION TO DISMISS THE VERIFIED PETITION ZACHARY V/. CARTER Corporation Counsel of the City of New York 100 Church Street Room 5-178 New York, New York 10007 (2r2) 3s6-2191 Sheryl K. Neufeld Shenill Kurland Adam M. Moss of Counsel November 9,2017 1 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of BAYCHESTER RETAIL III LLC, Petitioner, Index No. 157596120T7 For a Judgment Under Article 78 of the Civil Practice Law and Rules, -against- MARGERY PERLMUTTER, CHAIR, SHAMPA CHANDA, VICE-CHAIR, ANd DARA OTTLEY- BROWN, COMMISSIONER, constituting THE BOARD OF STANDARDS AND APPEALS OF THE, CITY OF NEW YORK, Respondents. RESPOND NTS' MtrMORAND OF LAW IN SUPPORT O F'THEIR CROSS.MOTI ON TO DISMISS THE PETITION PRELIMIN STATEMENT MARGERY PERLMUTTER, CHAIR, SHAMPA CHANDA, VICE-CHAIR, ANd DARA OTTLEY-BROWN, COMMISSIONER, constituting THE BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, (collectively, "BSA," the "Boatd," of "Respondents"), by their attorney, ZACHARY V/. CARTER, Corporation Counsel of the City of New York, submit this memorandum of law in support of their cross-motion to dismiss the Verified Petition pursuant to CPLR $$ 3211(a)(2), 3211(a)(7), and 7804(f) on the grounds that: a) the petition fails to state a cause of action for awrit of prohibition; b) the petition fails to state a cause of action for a writ of mandamus; and c) the Coutt lacks subject matter jurisdiction 2 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 because petitioner has failed to exhaust its administrative remedies and thus its alleged claims are not ripe for judicial review. Beginning in2013, petitioner sought approval to install signage at a lot owned by petitioner at 200I Bartow Avenue (the "subject Property"). The Department of Buildings ("DOB") denied petitioner's request for a zoning determination that would have permitted the signage to be constructed as of right. Petitioner appealed the DOB determination to the BSA, which denied petitioner's application and upheld the DOB determination, by resolution dated May 3, 2016 (the "Bartow I BSA Resolution"). Petitioner filed an Article 78 petition challenging the Bartow I BSA Resolution; Judge Edmead denied the petition and upheld the BSA's determination. Petitioner's appeal of Judge Edmead's decision is currently pending in the Appellate Division, First Department. Separately, petitioner has filed a second application with the BSA ("Bartow II"), appealing a subsequent DOB Denial, which seeks approval of similar signage at the Subject Property. The Bartow II application has undergone three rounds of'public hearings at the BSA, and a final determination in connection with the application is scheduled to be made by the BSA on December 12,2017. Rather than await the BSA's final determination on Bartow II, petitioner has filed the instant litigation, seeking for this Court to preemptively weigh in on the BSA's upcoming decision. Petitioner speculates herein that the BSA's upcoming decision in Bartow II will impermissibly reverse or modify the Bartow I BSA Resolution. Accordingly, the Verified Petition dated August 24,2017, seeks, inter alia, an Order from this Court: i) prohibiting the RSA from retroactively reversing or modifying the Bartow I BSA Resolution; and ii) directing the BSA to apply the findings of the Bartow I BSA 2 3 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 Resolution to its upcoming resolution in connection with the Bartow II application. See Verified Petition, Wheretbre Clause. As set forth below, the instant petition is plainly premature and should be dismissed for three reasons. First, petitioner seeks a writ of prohibition, "prohibiting the BSA from retroactively reversing or modifying the [Bartow I] BSA Resolution." Verified Petition, Wherefore Clause. However, the Court of Appeals has made explicit thata writ of prohibition enjoining a judicial or quasi-judicial body from acting is an "extraordinary" remedy, only to be invoked in limited circumstances. The extraordinary remedy of a writ of prohibition is not warranted herein because BSA has not acted without or in excess of its jurisdiction, petitioner's allegation that the BSA intends to reverse or modify the Bartow I BSA Resolution is purely speculative, aîd, in any event, a writ of prohibition will not lie where, as here, an ordinary remedy is available to the aggrieved party in the event that BSA takes action that petitioner believes is improper. Specifically, even if the BSA's upcoming decision in Bartow II were to have the effect of modifying or reversing the Barlow I BSA Resolution, petitioner would have an ordinary remedy in that it could challenge the Bartow II determination by filing an Article 78 petition challenging such decision. The Court of Appeals has made clear that the extraordinary remedy of prohibition should not be granted where an ordinary remedy is available to the aggrieved party and, accordingly, there is no basis for a writ of prohibition. Second, petitioner seeks a writ of mandamus, "directing the BSA to apply to Baychcstcr's Rcvised Applications the cletermination made in the [Rartow f] RSA Resolution. ..[.]" Verified Petition, Wherefore Clause. However, a writ of mandamus may only be sought in order to compel a government entity to perform a non-discretionary duty that is 3 4 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 required by law. The BSA clearly has discretion to approve or disapprove petitioner's pending application appealing a DOB determination and to issue a written determination based on its analysis of the complete administrative record. There is simply no basis for petitioner to seek for this Court to intervene in an ongoing administrative process and require that the Board rule on the merits of the Bartow II application in a specific manner; the administrative hearing is still ongoing and BSA has discretion to issue a final determination based on the administrative record developed therein. Third, subject matter jurisdiction is lacking because petitioner's alleged claims are not yet ripe for judicial review. It is black-letter law that the administrative review process must be exhausted before a challenge to an agency determination is ripe for review. Both of petitioner's aforementioned alleged causes of action are based on petitioner's speculation that the BSA plans to deny their application in Bartow II and that this determination will constitute an error of law because it impermissibly modifies the BSA's earlier findings in Bartow I. These claims are premature and speculative. Pursuant to the New York City Charter, Administrative Code, the Rules of the City of New York, and Court of Appeals case law, agency review must be exhausted prior to resofiing to judicial review so that an administrative record may be compiled and a clear, final determination based on such record can be issued by the agency. Here, the BSA has yet to formally and finally act. It is not yet known whether the BSA will approve or disapprove the pending application, or on what grounds their decision will be based, and the record upon which this decision will ultimately be based is not before the Court. In any event, cvclr if thc BSA were to oct in exactly the manner that petitioncr allcgcs hcro is improper, petitioner will have every opportunity to appeal the decision on that basis and a court will be able to issue an informed ruling based on its review of a fully developed administrative record. 4 5 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 In summary, afrnal determination has not yet been issued herein, petitioner has not suffered an injury, and petitioner will have a remedy pursuant to Article 78 if aggrieved by the upcoming determination, which is scheduled to be rendered on December 12, 2017. For these reasons, there is no basis in law for petitioner to seek for the Court to intervene at this time. STATUTORY FRAMEWORK Issuance and Challenge of DOB Zoning Determinations Pursuant to its authority set forth in New York City Charter ("City Charter") $ 641 et seq., DOB has jurisdiction to issue zoning approvals interpreting whether zoning drawings conform with the New York City Zoning Resolution ("Z,Pt" or "Zoning Resolution"). Pursuant to City Charter $ 648, "appeals may be taken from decisions of the commissioner [of DOB] and of a deputy commissioner or the borough superintendent acting under a written delegation of power filed in accordance with the provisions of section six hundred forty-two or subdivision (c) of section six hundred forty-five of this chapter, to the board of stanclards ancl appeals as provided by law." See also New York City Administrative Code ("Admin. Code") $ 28-103.4 ("[a]n appeal from any decision or interpretation of the commissioner [of Buildings] may be taken to the board of standards and appeals pursuant to the procedures of the board...[.]"). Pursuant to City Charter $ 666, the BSA has the authority to hear appeals regarding DOB final determinations and make rules regarding the process for hearing such appeals, as follows: $ 666. Jurisdiction. The Board shall have power: 1. To make, amend and repeal rules and regulations for canying into effect the provisions of the laws, resolutions, rules and regulations in respect to any subject-matter jurisdiction whereof is conferred by law upon the board, and to include in such rules and 5 6 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 regulations provisions applying to specific conditions and prescribing means and methods of practice to effectuate such provisions and for carrying into effect the powers of the board. {< {< * {< 6. To hear and decide appeals from and review, (a) except as otherwise provided by law, any order, requirement, decision or determination of the commissioner of buildings or of a deputy commissioner of buildings or any borough superintendent of buildings acting under a written delegation of power from the commissioner of buildings filed in accordance with the provisions of section six hundred forty-two or section six hundred forty-five of this chart... [.] Pursuant to the BSA Rules of Practice and Procedure, Title 2 RCNY $ 1-12.6, the Board may: ...for good cause, on its own motion at a public hearing, review any decision that it has made and reverse or modify such decision, but no such review will prejudice the rights of any person who has in good faith acted thereon before it is reversed or modifred. The Board will hear the motion to review on the SOC calendar after notice by the Board to the applicant and the owner of the subject property. The Board at its discretion may elect to review such decision on the case's original calendar if deemed appropriate. PROCEDURAL HISTORY AND RELEVANT FACTS Petitioner Baychester Retail III LLC ("petitioner") is the owner of a site located at 2001 Bartow Avenue a.k.a. 500 Baychester Avenue, Block 5141, Lot 101, Bronx, New York (the "suhject Property"). Petitioner began seeking approval from the City of New York to construct signage at the Subject Property in 2013. 6 7 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 Bartow I On or about August 8, 2074, petitioner's representative applietl to DOB for a zoning determination in connection with proposed signage at the Subject Property that would be mounted on a large monopole. A copy of the zoning determination filed with DOB on August 8, 2014 (the *ZRDl") is annexed as Exhibit 1.r Specifically, petitioner sought a determination from DOB that the signage to be mounted on the monopole should be considered 54 discrete signs for zoning pu{poses, rather than one (l) sign. See Exhibit 1. The practical impact of petitioner's request was that if the signage mounted on the monopole were considered to be one (1) sign, itwould be far too large to be permitted to be constructed "as-of-right" due to size limitations for signage in the applicable zoning district. However, if the signage were considered to be 54 discrete signs, each would be small enough to be approved by DOB on its own "as-of- right." On January 26,2015, DOB First Deputy Commissioner Thomas J. Fariello denied petitioner's request, indicating, in relevant part, that "[t]he request to consider each of the proposed 54 illuminated advertising panels, located on two different vertical planes facing opposite sides of a single supporting pole (27 panels on each side), as individual signs in which the surface area of a sign is measured individually for each panel is hereby denied." Exhibit 1, p. 4. Petitioner then proceeded to appeal the DOB ZRDI determination to the BSA, where public hearings on the appeal were held on September I , 2075, October 20, 2075, f)ecemher R, 201 5, Fehnrary 23, 2016, and March 22, 2016, On May 3, 2016^ BSA renderecl a ' Unless otherwise indicated, all exhibitsreferenced herein are annexed to the Affirmation of Adam M. Moss ("Moss Affirmation") in Support of Respondents' Cross-Motion to Dismiss, submitted herewith. 7 8 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 final determination, the written resolution for which was officially filed on July 28,2016. After considering all the evidence, the BSA, in a lengthy decision (the "Bartcrw I BSA Resolution," annexed as Exhibit 2), upheld the ZRD1, finding, in relevant paft, that "a majority of the Board finds that the Subject Assembly is a single sign the surface area of which greatly exceeds that which is permitted at its location, and, as such, the Final Determination [of DOB] is affirmed and the subject appeal is denied." Exhibit 2,p.8. As part of the decision, the Bartow I BSA Resolution also stated that "all of the Commissioners agree that the Subject Assembly is a clear hazard to motorists on the New England Throughway (an arterial highway) and, by virtue of its size, degree of illumination, and close proximity to a dense residential development, a potentially significant nuisance." Exhibit 2, p. 8. The Bartow I BSA Resolution also noted, "under the fpetitioner's] reasoning, the Subject assembly could be enlarged ad infinitum, such that, provided each advertising panel was smaller than 322 square feet of surface area and located no fewer than 12 inches apart from its adjacent advertising panel, the aggregate size of the Subject Assembly could easily reach 30,000 sq. ft., or more, clearly an absurd result not contemplated or sanctioned by the ZoningResolution." Exhibit 2, p. 9.Most notably, the Bartow I BSA Resolution included discussion about the potential precedential value that would be set by the decision, with a minority of the BSA members suggesting that a slight tweak of the sign by the applicant might make the sign acceptable-- but the Bartow I BSA Resolution explicitly rejected this minority review. Accordingly' the Bartow oocannot reach I BSA Resolution explicitly states, that the BSA a determination as to any signnge assembly other than that which is the suhject of this appeal," Exhibit 2,p. I0. Thtrs. the BSA's official position in the Bartow I BSA Resolution was that any subsequently proposed 8 9 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 sign, and related DOB zoning determination, would have to be reviewed on its own merits to determine ifit contbrmed with the Zoning Resolution. After the Bartow I BSA Resolution was issued, petitioner filed an Article 78 petition challenging the resolution, under Index No. 15709112016. Petitioner's Article 78 petition was dismissed in March 2017 andthe resolution was upheld as a reasonable and rational determination of the BSA. See Bavchester Retail III .C v- Perlmutter et a1.. Index No. 15709112016, Edmead, J. (Sup. Ct., N.Y. County, Mar. 13,2017). Petitioner appealed Judge Edmead's decision and such appeal is currently pending in the Appellate Division, First Department. Bartow II On or about October 6,2016 (after the Bartow I BSA Resolution had been issued, but before Judge Edmead had heard the Article 78 petition), petitioner filed a new ZRDI application (the "second ZRDl") with DOB in connection with proposed signage at the Subject Property. The Second ZRD1 application (annexed as Exhibit 3) featured a slightly difiþrent design from the sign proposed as part of Bartow I. The new proposed signage was still affixed to one monopole, but the new design consisted of two grids emanating from the monopole with each component of the grid holding up one of the 54 individual video screen signs. On October 'Werner 7, 2017, DOB Bronx Borough Commissioner R. deFoe denied petitioner's request, explaining as follows: The request to allow the filing of multiple signs on eauh surface r:rf a urouopole advetising sign structure is denied, BSA 35-15-A adopted May 3,2016 [i.e. the Bartow I BSA Resolution] denied the request to consider a sign surface assembly of multiple LED video screens as multiple signs in large part by concluding 9 10 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 that the video screen assembly is held up by a unifying structure. While the newly proposed "grid" holding the individual screens differs from the "structure" used for the sign assemblage considered in the BSA case ultimately, the newly proposed "grid" is part of a monopole, i.e.: every parl of the grid that holds up the individual LED screens is held up by forces that "travel" down to the monopole which holds up the entire grid. Therefore, independent of the particular formation of the "grid" the structure holding up the individual LED screens must be considered one structure and following the BSA opinion each flat surface assembly of video screens is to be considered one sign. Exhibit 3,p.4. In other words, DOB determined that even though petitioner had made revisions to the proposed signage that had previously been denied by both DOB and the BSA, the new configuration still could not be considered 54 separate signs, rather than 1 sign, under the Zoning Resolul.ion antl bascd ott tlte Bartow I BSA Resolution. Petitioner proceeded to appeal the Second ZRD1 to the BSA by an application dated November 10, 2016. Petitioner's appeal at BSA ("Bartow II") was duly noticed for a first public hearing on March 2I,2071, and the hearing was continued for a second hearing on May 23,2077. The day prior to public hearings, the BSA holds Public Review Sessions at which BSA Commissioners publicly share their observations, compare notes and pose questions for the applicant regarding the applications calendared for public hearing the next day. At the second Public Review Session for the Bafiow II appeal held on May 22,2071, BSA Chair Perlmutter addressed a number of issues regarding the appeal, including a discussion of several of the findings BSA had made in the Bartow I BSA Resolution and how those findings informed her l0 11 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 review of the signage configuration proposed in Bartow II. See May 22, 2011 Public Review Session Transcript, annexed as Exhibit 4. The public hearing was subsequently continued on May 23,2017 and scheduled for a third continued hearing on October 3, 2017. On October 2, 201J, another Public Review Session was held and the public hearing was scheduled for a fourth hearing on October 3,2011. The BSA closed the public hearing on October 3,201J, and scheduled the Bartow II application for decision on December 72,2017. The Instant Litieation Despite the fact that the BSA public hearing process on Bartow II is stillongoing and no final BSA resolution for the application has been issued, petitioner commenced the instant litigation by Notice of Petition and Verified Petition2 dated Augu st 24, 20n .3 As part of the Verified Petition, petitioner seeks, inter alia, an Order from this Court: i) prohibiting the BSA from retroactively reversing or modifying the Bartow I BSA Resolution; and ii) directing the BSA to apply the findings of the Bartow I BSA Resolution to its upcoming resolution in the Bartow IIappeal. See Verified Petition, Wherefore Clause. As set forth below, the petition should be dismissed pursuant to CPLR Sg 321 1(a)(2),3211(a)(7), and 7804(f) on the grounds that: a) the petition failsto state a cause of action for a writ of prohibition; b) the petition fails to state a cause of action for a writ of mandamus; and c) subject matter jurisdiction to hear the petition is lacking because petitioner's challenge is not ripe for judicial review, given that petitioner has not yet exhausted its administrative remedies. 'A copy of the Verified Petition is annexed as Exhibit 5. 3 Petitioner then filed an Amended Notice of Petition, dated September 8,2011 ll 12 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 ARGUMENT POINT I PETITIONER HAS FAILED TO STATE A CAUSE OUT OR CTION AND IN EVENT A \ilRIT O PROHIBITION \ilILL NOT LIE E AN ORDINARY REMEDY IS VAILABLE In determining if a cause of action exists, the Court examines "whether there can be fairly gathered from all the averments the requisite allegations of a valid cause of action, cognizable by the courts of this State." Cohn v. Lionel Corp., 21 N.Y.2d 559, 562 (1968); see also Leo v. Mt. St. Michael Acad. ,272 A.D.2d 145 (1st Dep't 2000). The petition fails to state a cognizable claim for a writ of prohibition because the BSA is not acting without or in excess of its jurisdiction and, in any event, a writ of prohibition will not lie where, as here, an ordinary remedy would be available to petitioner if the agency acted in excess of its jurisdiction. Article 78 provides for judicial review and relief in the nature of prohibition when a petitioner demonstrates that a goverrìmental body or officer acting in a judicial or quasi-judicial capacity is about to proceed in excess of its jurisdiction. See CPLR $ 7803(2). To the extent thaf petitioner seeks to "prohibitf] the BSA from retroactively reversing or modiffing the fBartow I] BSA Resolution," (Petition, Wherefore Clause) it seeks relief in the nature of prohibition. The Court of Appeals has explained that "[a] writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction...In light of the reluctance to interfere with the normal, orderly administration ofjustice, an important factor is the adequacy of other legal remedies to correct the asserted error; if there is an adequate 'ordinary' remedy, then there is no need to invoke the extraordinary remedy." Morgenthau t2 13 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 v. Erlbaum,59 N.Y.2d 143,141 (1953) (internal citations omitted) (emphasis added); see also gg Lipari v. Owens,70 N.Y.2d 731,132-'33 (198'/); State of New York v. King, 36 N.Y.2d 59, 62 (1975) ("even ifthere has been an excess ofjurisdiction or power, the extraordinary remedy will not lie if there is available an adequate remedy at law, of which appeal is but one, which may bar the extraordinary remedy").4 In summary, the Court of Appeals has made explicit that a writ of prohibition is an "extraordinary remedy," only to be invoked where a body is wholly without jurisdiction to act or where the body is exceeding its authorized powers. And even then, a couft should not intervene where there is an "ordinary" remedy available. Petitioner's claim asserted herein fails to state a cause of action because the BSA has not exceeded its jurisdiction, there is no indication beyond petitioner's bare speculation that it will do so and, most importantly, petitioner would have an ordinary remedy in the event the BSA does arguably exceed its jurisdiction. Petitioner admits that the BSA has jurisdiction to modify or reverse a prior decision (see Title 2 RCNY $ 1-12.6); its contention is that BSA is about to exceed that authority by reversing or modifying the Bartow I BSA Resolution without following its own procedure for such a reversal, and, thus, that this Court should intervene before the BSA takes such action. The Bartow I BSA Resolution currently remains in effect, having been upheld by the Supreme Court as a reasonable and rational determination. The BSA has not taken any action whatsoever to reverse or modify the Bartow I BSA Resolution. Petitioner theorizes, based on comments made by BSA Chair Perlmutter and related comments by other Commissioners at a a It should be noted that even in cases where there is an excess ofjurisdiction and an adequate "ordinary" remedy to grant a writ of prohibition, it merely has an ability to exercise its may not be available, a court is still not required discretion to grant such a writ. See e.g. La Rocca v. Lane, 37 N.Y.2d 515,519 (1975) ("[p]rohibition is not mandatory, but may issue in the sound discretion ofthe coutt"). t3 14 of 23 FILED: NEW YORK COUNTY CLERK 11/09/2017 06:25 PM INDEX NO. 157596/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/09/2017 Public Review Session, that the BSA's upcoming decision in Bartow II will effectively modify or reverse the Bartow I BSA Resolution. Petitioner's contentiort, lltuuglt, fails fcrr tluee reasous. First, comments made by BSA Commissioners during the course of their review of an application are not equivalent to the BSA's fìnal determination, nor may they be ascribed to other Commissioners who did not make such statements. Until an application before the BSA has gone through public hearings and review and a final resolution is issued, the BSA has taken no definitive position on an application. Petitioner's application could still be approved or denied for reasons other than those discussed at the May 22 Public Review Session. For this reason, as discussed at greater length infra Point III herein, an applicant must exhaust its administrative remedies and obtain a final agency determination before litigating an appeal in a court of law. Petitioner seeks to prohibit the BSA from acting despite the fact that petitioner cannot possibly know for certain how the Board will vote or what the rationale will be for their determination. Second, even assuming arguendo that the Board intends to adopt some or all of the positions expressed by the Chair at the }r4ay 22 Public Review Session in the written resolution for Bartow II, it cannot be immediately inferred at this juncture that the Bartow I BSA Resolution will necessarily become modified or reversed based on such a determination. In fact, the Chair explicitly noted in her comments at the May 22 Public Review session that her views on the pending application are consistent with and are, in fact, controlled by Judge Edmead's decision, which upheld the Bartow I BSA Resolution. See Ex. 4, p. 3. So, rather than indicating that the RSA wishes to exceed its authority and reverse the prior BSA Re