New York & Richmond Gas Co. v. Connell

242 A.D. 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1934
• Status: Published

Opinion

Order sustaining certiorari order and annulling the determination of the board of standards and appeals reversed on the law and the facts, with costs, certiorari proceeding dismissed, and the determination of the board of standards and appeals reinstated and confirmed. We are of opinion that the testimony taken before the referee failed to establish that the owner could not devote the site to conforming uses without a reasonable financial return, nor did the case, as presented to the board of standards and appeals, show the impracticability of utilizing the site for conforming uses. The board of standards and appeals had a discretionary duty in the matter and nothing appears in this record from which it may be said that it reached an arbitrary determination. It is not necessary in this litigation to decide, nor do we decide, the rights of Koch’s grantees in the Koch development, as between these grantees and Koch. The relation of the gas company to potential consumers forms no basis for the variance sought, which can only be granted upon a showing of unnecessary hardships or practical difficulties. Whether there are such practical difficulties or unnecessary hardships is a matter for determination by the board of standards and appeals, whose finding, in the absence of clear abuse of discretion, must be sustained by the courts. Present economic conditions, which are practically universal, do not justify a nullification of the zoning laws where the showing is that if nullified by permitting such non-conforming uses as here proposed, the owner can obtain a better return than by a compliance with the zoning law. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.