Halpert v. Murdock

249 A.D. 777, 292 N.Y.S. 75, 1936 N.Y. App. Div. LEXIS 5972

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1936
• Status: Published

Opinion

This is a certiorari proceeding to obtain a variance of the Zoning Ordinance of the City of New York on the ground of unnecessary hardship so as to permit the erection of a gasoline station in a business zone. Final order which confirms the report of the official referee, sustains the certiorari order, annuls the determination of the board of standards and appeals and directs the superintendent of buildings to issue a building permit reversed on the law and the facts, with costs to the board of standards and appeals, certiorari proceeding dismissed and the determination of the board reinstated and confirmed. Appeal from intermediate order of February 4, 1935, dismissed. While petitioner offered proof that the neighborhood is such that it is impracticable to adapt his property to a conforming use, we cannot say on this record that the restriction creates a special hardship upon petitioner. The hardship, if any, is shared by the other property owners. To grant an exemption to petitioner would be unjust to those whose properties remain subject to the same restriction. Under the circumstances it was not only within the discretion of the board but its duty to refuse to grant a variance. (Matter of Levy v. Bd. of Standards & Appeals, 267 N. Y. 347; Y. W. H. Assn. v. Bd. of Standards & Appeals, 266 id. 270; People ex rel. Arseekay Syndicate v. Murdock, 265 id. 158; People ex rel. Arverne Bay Construction Co. v. Murdock, 247 App. Div. 889; affd., 271 N. Y. 631; Matter of Ward v. Murdock, 247 App. Div. 808; Matter of Stillman v. Bd. of Standards & Appeals, 222 id. 19; affd., 247 N. Y. 599.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.