Adams Holding Corp. v. Van Rosendaal

15 Misc. 2d 498, 180 N.Y.S.2d 231, 1958 N.Y. Misc. LEXIS 3463

• Court: New York Supreme Court
• Decided: April 23, 1958
• Status: Published

Opinion

James W. Bailey, J.

Petitioners make application for an order pursuant to article 78 of the Civil Practice Act directing respondent to issue a building permit for the erection of a gasoline service station.

A gasoline service station is a permitted use in a 0-2 district. Respondent does not deny that petitioner has a right to use her property for a gasoline service station but contends that this application is premature because the building inspector has not made a determination and such determination has not been reviewed by the Zoning Board of Appeals. Respondent also contends that petitioners have failed to submit new plans eliminating that portion thereof which shows lowering of the curbs.

The refusal by respondent to issue the permit which is authorized by the zoning ordinance constitutes a determination and is the proper subject of an article 78 proceeding. Recourse to the Zoning Board of Appeals is required pursuant to the zoning ordinance only when (1) an interpretation of the ordinance is involved (2) a special use permit is requested and (3) when a variance is sought. See sections 3.21, 3.22 and 3.23 of article III of the Zoning Ordinance of the City of Poughkeepsie adopted March 2, 1953. The present application does not fall within the categories above set forth.

The respondent has no authority to grant a curb lowering permit and the granting of the permit to erect the gasoline service station in no way affects the lowering of the curb. Under such circumstances respondent may not withhold the issuance of the permit herein upon the ground that the plans show a lowering of the curb.

Application granted.

Submit order.