In re the Incorporated Village of Island Park v. Howard

258 A.D. 750, 15 N.Y.S.2d 277, 1939 N.Y. App. Div. LEXIS 6755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1939
• Status: Published

Opinion

Order confirming determination of the zoning board of appeals of the Incorporated Village of Island Park, dated November 7, 1934, dismissing the petition of the village in a certiorari proceeding and annulling the order of certiorari issued thereon, reversed on the law, with twenty dollars costs and disbursements, and the matter remitted to the zoning board of appeals for a rehearing and further hearing on the application for a variance. There was no showing, by formal proof or otherwise, that the property for which a variance was sought could not be utilized for a conforming use. There was, therefore, no factual basis upon which the zoning board of appeals could act to grant a variance. (Peopleex rel. Fordham M. R. Churchy. Walsh, 244 N. Y. 280; Y. W. H. Assn. v. Bd. of Standards & Appeals, 266 id. 270; Matter of Levy v. Bd. of Standards & Appeals, 267 id. 347.) The petition challenged — somewhat meagerly to be sure — the action of the zoning board of appeals in assuming to “ modify a regulation because of hardship.” It was, however, sufficient to raise the issue. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.