Von Elm v. Zoning Board of Appeals

258 A.D. 989, 17 N.Y.S.2d 548, 1940 N.Y. App. Div. LEXIS 8571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1940
• Status: Published

Opinion

Proceeding under article 78 of the Civil Practice Act for a review of the determination of the zoning board of appeals of the Incorporated Village of Hempstead in granting the application of Ernest and Theresa Pepper for a variance to enable them to change their one-family house to a two-family house in a Residence A District in which such use is prohibited. Determination annulled, with fifty dollars costs and disbursements, payable by the Zoning Board of Appeals of the Incorporated Village of Hempstead, and application for such variance denied. The board was without jurisdiction to act upon the application in the first instance in the absence of a reference to it pursuant to an ordinance. (Village Law, § 179-b.) Assuming that the board had jurisdiction, there was no factual basis upon which a variance could be granted as for undue hardship and practical difficulties. Neighboring violations of the zoning ordinance did not constitute practical difficulties or unnecessary hardship. In the absence of proof of unnecessary hardship within the doctrine of the eases the applicants must have recourse to procuring a change in the zoning ordinance in the area. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.