Hickox v. Griffin

274 A.D. 792, 79 N.Y.S.2d 193, 1948 N.Y. App. Div. LEXIS 3367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1948
• Status: Published

Opinions

This is a proceeding, under article 78 of the Civil Practice Act, to review the determination of the Zoning Board of Appeals of the Town of Oyster Bay, which granted a variance to permit respondent Long^ Island University to use certain land in a Residence A district as and for a university with usual campus facilities, Special Term having transferred the proceeding to this court. Petitioner Davis died before the argument of the appeal in this court. The executor of her estate does not wish to be substituted and has stated that he has no interest in the case. Under these circumstances, the proceeding, insofar as petitioner Davis is concerned, is severed, and the determination of the zoning board of appeals is confirmed with respect to petitioners Hickox and Youngs only, without costs. Long Island University, the equitable owner of the property, is a party aggrieved and, as such, it is entitled to make the application for a variance of the zoning ordinance. (Town Law, § 267.) If not, the university should be deemed to have applied as the agent and with the consent of the holder of the legal title. The board had original jurisdiction to entertain the application for a variance. (Matter of Donegan v. Griffin, 270 App. Div. 937; Town of Oyster Bay Building Zone Ordinance of 1929, § 18, subds. A, B.) Where the board grants a variance, the question of power only is to be considered. (Matter of Reed v. Bd. of Standards & Appeals, 255 N. Y. 126, 136.) The court will not interfere with the exercise of judgment by the board where the record discloses a basis for the exercise of judgment. (Matter of Levy v. Bd. of Standards & Appeals, 267 N. Y. 347.) 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, 405.) The proof in this record is sufficient to give the board power to grant the variance and to show that there was scope for the exercise of such judgment within the requirements of Matter of Otto v. Steinhilber (282 N. Y. 71), particularly when it is considered that the board may act, not only on evidence before it, but from its own knowledge without the aid of witnesses. (People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280.) This court must judge the propriety of the action of the board solely by the grounds invoked by it and we may not now determine whether the proposed use would be conforming or whether the board may have authorized the proposed use as a special exception. (Matter of Muller v. Zoning Bd. of Appeals of Town of Ramapo, 272 App. Div. 1074; Securities & Exch. Comm. v. Chenery Corp., 332 U. S. 194, 196.) Johnston, Adel and Sneed, JJ., concur;