In re Buffalo Cremation Co.

222 A.D. 447, 226 N.Y.S. 477, 1928 N.Y. App. Div. LEXIS 8083

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1928
• Status: Published

Opinion

Per Curiam.

Under the zoning ordinances of the city of Buffalo, a board of appeals was established. It has certain powers as provided in section 28 of the ordinances. One of them is to hear appeals from decisions of the building commissioner. It also is given original jurisdiction ■ to grant permits in specified cases, but only after having given public notice and a hearing. (§ 28, subd. G.) It has among other things original jurisdiction to grant permission in a business district for the erection or extension of a public garage. (§ 28, subd. G [6], a.) But it is only after the public notice and hearing as provided for in subdivision G of section 28 of the ordinances.

On the 14th day of April, 1927, the Gates Circle Garage, Inc., filed an application with the building commissioner for permission to enlarge its garage. The building commissioner referred the matter to the board of appeals on the 20th day of April, 1927. That body, by resolution, granted the request, and a month later the building commissioner issued the permit. This was not done, however, until after the petitioner had instituted this proceeding to review by certiorari order the action of the board of appeals in granting the permit. This procedure to review was proper. (§ 28, subd. H.)

In granting the permit in question the board of appeals exercised original jurisdiction and it did not act in its appellate capacity to review the action of the building commissioner, for that official had not at that time granted a permit.

In' exercising its original jurisdiction by granting this permit, the board of appeals acted without authority, for it had not given the notice and accorded the public hearing that were required by the terms of subdivision G of section 28 of the ordinances. Its action was, therefore, illegal and void.

The certiorari order should be sustained and the determination of the board of appeals reversed on the law, with fifty dollars costs and the permit granted should be revoked.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ.

Determination of board of appeals set aside, order of certiorari sustained and permit granted by board of appeals revoked, with fifty dollars costs and disbursements.