Eckels v. Murdock

242 A.D. 690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1934
• Status: Published

Opinion

Order modified so as to provide that when circumstances so change, by development of the neighborhood, that the property in question is reasonably susceptible of being applied to a conforming use, then, upon the application of the authorities or any one interested, the gasoline station must be removed. As so modified, the order is affirmed, with costs to respondent. (People ex rel. St. Albans-S. Corp. v. Connell, 257 N. Y. 73.) Lazansky, P. J., Hagarty and Tompkins, JJ., concur; Kapper and Carswell, JJ., dissent and vote to reverse and to dismiss the certiorari order and to reinstate the determination of the board of standards and appeals denying a variance, being of opinion that the determination of the board of standards and appeals was within its sound discretion and was not arbitrary; and are also of the opinion that there was no showing before the board of standards and appeals that a fair and reasonable return, under a conforming use, could not be had. The Zoning Law was not designed to permit a trial de novo before the Supreme Court or its referee upon an issue on which the board of standards and appeals was not given an opportunity to determine. We are also of opinion that the sole issue to be determined by the court at Special Term, or by the referee, was whether the board of standards and appeals acted arbitrarily. The finding of the referee that a “ gasoline station, if erected on the petitioner’s property, can be more profitably conducted than any conforming use,” is not a basis for a variance. Fully developed property and neighborhood such as are here involved do not come within the limited use permitted, in the circumstances there shown, in People ex rel. St. Albans-S. Corp. v. Connell (257 N. Y. 73).