Butler v. Connell

235 A.D. 806, 256 N.Y.S. 935

Opinion

Order confirming the determination of the board of standards and appeals reversed on the law and the facts, with costs, certiorari order sustained, determination annulled, and it is directed that a permit be issued for the erection of a gasoline station upon the property in question upon condition that, when the circumstances so change by the development of the city that appellant’s property is reasonably susceptible of being applied to a conforming use, then, upon application of the authorities or any one interested, the gasoline station must be removed. In our opinion, the appellant’s property cannot now profitably be devoted to a conforming use, and the respondents improperly exercised their discretion under section 21 and section 7, subdivision (g), of the Building Zone Resolution. (People ex rel. St. Albans-S. Corp. v. Connell, 257 N. Y. 73.) Lazansky, P. J., Young, Hagarty and Carswell, JJ., concur; Kapper, J., dissents on the ground that the disposition made by the board of standards and appeals was of a matter within their discretion and there is no basis for interference.