Ernst v. Board of Appeals on Zoning of the City of New Rochelle

274 A.D. 809, 79 N.Y.S.2d 798, 1948 N.Y. App. Div. LEXIS 3461

Opinion

Appeal by the Board of Appeals on Zoning of the City of New Rochelle from an order which annulled the board’s determination denying the application of respondent for a variance, so as to permit certain premises owned by respondent and situated in a residential zone to be used as a convalescent home, and directed that the board grant such permission. Order reversed on the law and the facts, without costs, and.the proceeding dismissed, without costs. The power to vary or modify the application of any of the provisions of the zoning ordinance is vested in the board of appeals. (General City Law, § 81.) The court will not substitute its judgment for that of the board, and the judgment of the board may not be set aside unless it clearly appears to be arbitrary or contrary to law. (People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400.) It does not appear in this case that the determination by the board was arbitrary or capricious. (Matter of Otto v. Steinhilber, 282 N. Y. 71.) Lewis, P. J., Adel, Nolan, Sneed and Wenzel, JJ., concur.