Taxpayers' Ass'n of South East Oceanside v. Board of Zoning Appeals of the Hempstead

93 N.E.2d 645, 301 N.Y. 215, 1950 N.Y. LEXIS 801

• Court: New York Court of Appeals
• Decided: July 11, 1950
• Status: Published

Opinion

Conway, J.

Intervener-respondent was granted a permanent zoning variance by the board of zoning appeals of the town of Hempstead permitting him to erect a commercial boathouse, repair shop and boat dock in an area, adjacent to Parsonage Creek, zoned as a residence “ B ” district. He is not the owner of the property in question but has executory contracts to purchase two plots of land conditioned upon his obtaining the variance. Petitioners, property owners residing in the immediate vicinity, commenced this preceeding under article 78 of the Civil Practice Act to annul the board’s determination. Special Term and the Appellate Division (one Justice dissenting) confirmed the determination of the board and petitioners have appealed to this court.

We have held that a variance may be granted only upon a showing: (1) that the land cannot yield a reasonable return if used only for a purpose allowed in that zone, (2) that the plight of the owner is due to unique circumstances and not to the general conditions of the neighborhood, and (3) that the use sought will not alter the essential character of the neighborhood. (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76. See, also, Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86; Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280.)

Intervener-respondent’s proof failed to meet any of these requirements. There was no proof that the property could not be adapted to conforming uses. No attempt was made to sell or utilize the property for residential purposes, although it was as suitable for residential purposes as other land in the immediate vicinity upon which a number of homes had recently been constructed. Moreover, the record does not show that the property suffers a unique or singular disadvantage, not common to other property in the district, through the operation of the zoning ordinance. Here, the hardship, if any, is general and characteristic of the entire area, and the remedy lies in a revision of the zoning ordinance through legislative action, not by the granting of a variance to a single property owner. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222.) Finally, it is abundantly clear that respondent’s proposed use of the property as a site for a boathouse and dock to test motorboats up and down the creek and the plan to provide parking facilities for thirty to forty automobiles will create conditions distinctly different from those existing in the locality and thus will unquestionably alter the essential character of an otherwise residential neighborhood.

Since, under the applicable principles of law, the variance could not be granted, it is unnecessary to determine the further question, reserved by this court in Matter of Hickox v. Griffin (298 N. Y. 365, 371, supra) whether a vendee in an executory contract to purchase land is a “ person aggrieved ’’ within the meaning of section 267 of the Town Law in a case where, as here, the passing of title is by the contract conditioned upon the granting of a zoning variance.

The order of the Appellate Division should be reversed and the determination of the board of zoning appeals annulled, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.