People ex rel. Santora v. Kreuter

253 A.D. 898, 1 N.Y.S.2d 879, 1938 N.Y. App. Div. LEXIS 9169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1938
• Status: Published

Opinion

The respondent, owner of a house arranged for two families in a district zoned for one-family houses only, applies to the board of appeals on zoning for a variation to permit such alteration and continued use. The application was denied. Upon certiorari to review the action of the board of appeals, the official referee reversed the decision of the board of appeals and granted judgment rezoning the respondent’s property from Residential A to Residential B. The board of appeals appeals. Judgment reversed on the law and the facts, with costs, certiorari proceeding dismissed, and the determination of the board of appeals reinstated and confirmed. Findings of fact numbered 6, 12, 13, 14 and 16 are reversed and the conclusions of law disapproved. There are insufficient facts in this record to establish that the action of the board of appeals on zoning was arbitrary, unreasonable and confiscatory. The fact that other property in the neighborhood is violating the ordinance is not ground for relief. (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280.) Nor is the fact that the use applied for would be more profitable for the owner. (Matter of Wulfsohn v. Burden, 241 N. Y. 288.) The court may not substitute its discretion for the discretion exercised by the board of appeals unless unreasonable discrimination is shown as a matter of law. (Matter of Larkin Co., Inc., v. Schwab, 242 N. Y. 330.) There is no proof of such unreasonable discrimination here. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.