Beckmann v. Talbot

252 A.D. 870, 300 N.Y.S. 6, 1937 N.Y. App. Div. LEXIS 6628

Opinion

Order grant ing petitioner’s application for a mandamus order and directing appellants to issue to him a building permit for the erection of oil tanks on that part of petitioner’s premises known as lots 115 to 122 in block 30 on the map of Island Park, Long Beach, and permits for the use and occupancy of the tanks after they shall have been completed, reversed on the law and not in the exercise of discretion, with costs, and application denied, with ten dollars costs. While the local board of zoning appeals is vested with certain powers (Village Law, § 179-b), it was without power to set aside the zoning ordinance in its entirety, as it attempted to do here under the guise of granting a variance. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347.) The village legislative body had authority to forbid the storage of oil or gasoline within the village limits. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 334.) The board of appeals, therefore, went beyond its statutory authority in its decision and its action is wholly void. (Altschul v. Ludwig, 216 N. Y. 459.) Mandamus wall not lie to compel a public official to perform a vain or useless or illegal act. (Matter of Lindgren, 198 App. Div. 319.) Carswell, Davis, Adel and Close, JJ., concur; Johnston, J., concurs in result.