Barrett v. Bedell

255 A.D. 874, 7 N.Y.S.2d 987, 1938 N.Y. App. Div. LEXIS 5731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1938
• Status: Published

Opinion

Petition for a review of the determination of the board of zoning appeals of the town of Hempstead, granting a variance for the erection and maintenance of a commercial chicken house in a residence or “ B ” district. Determination of the board of zoning appeals annulled and temporary permit for variance vacated, with fifty dollars costs and disbursements, (a) Article X, section 1001, subdivision (b), of the Building Zone Ordinance authorized the board to grant a temporary permit in the nature of a variance “ in undeveloped sections of the town.” The return does not disclose that the temporary permit here granted related to property in an undeveloped section. On the contrary, it appears that the area is developed. It is a built-up residential section, (b) The board may grant a variance when there is a showing of practical difficulties or unnecessary hardships, but the return discloses no such showing. The record is destitute of anything indicating that the property of Geib may not be profitably put to a conforming use. The fact that a non-conforming use would be more profitable to Geib by way of furthering an otherwise desirable objective is not proof of practical difficulties or unnecessary hardship. This is especially so when the commercial use thus authorized tends to destroy the residential character of the neighborhood, seems to constitute a nuisance and impairs the enjoyment by the other residents of the area of the benefits to which they are entitled in a residence or “ B ” district. The granting of the variance was, therefore, arbitrary and unauthorized. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.