Kraushaar & Son, Inc. v. City of New York

286 A.D. 1094, 145 N.Y.S.2d 511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1955
• Status: Published

Opinion

No opinion. Wenzel, Schmidt and Ughetta, JJ., concur; Nolan, P. J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The evidence adduced is insufficient to establish that the Zoning Resolution of the City of New York, as amended, insofar as it affects plaintiff’s property, is unconstitutional. The suitability of plaintiff’s property for the uses to which it is limited is fairly debatable. Under such circumstances, the judgment of the local legislative body must be allowed to prevail. (Shepard v. Village of Skaneateles, 300 N. Y. 115; Berger v. City of New York, 283 App. Div. 714, affd. 308 N. Y. 830.) Moreover, the conditions complained of, which, it is asserted, render plaintiff’s property unsuitable for the uses to which it is limited, appear to affect only the lots in the use district which are in close proximity to the railroad station and the freight yard. If in such particular instances the zoning resolution creates unnecessary hardship, relief may be obtained thereunder, by application for a variance. Since the zoning resolution provides for relief from the hardship complained of, and appears to be otherwise generally reasonable (cf. Matter of Otto v. Steinhilber, 282 N. Y. 71, 75), it should not be held that said resolution deprives plaintiff unreasonably of its property, at least until such relief has been refused. (Dowsey v. Village of Kensington, 257 N. Y. 221, 229; People v. Calvar Corp., 286 N. Y. 419, 421; Matter of Brous v. Smith, 304 N. Y. 164, 171.) MacCrate, J., concurs with Nolan, P. J.