Ward v. Murdock

247 A.D. 808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1936
• Status: Published

Opinion

On an application by the respondent for a variation of the Building Zone Resolution (Amended Building Zone Resolution, New York Code of Ordinances, Appendix B) under section 21 thereof, permitting the construction and operation of a gasoline filling station on respondent’s property located in a business district at Glenmore and Euclid avenues in the borough of Brooklyn, on the ground of practical difficulties or unnecessary hardships, the application was denied by the board of standards and appeals of the city of New York. By order of June 4, 1935, the court at Kings County Special Term sustained a certiorari order obtained by the applicant and reversed the determination of the board of standards and appeals. The record fails to disclose such exceptional circumstances as alone justify relaxation in peculiar cases of the restrictions imposed by the resolution. The financial situation or pecuniary hardship of a single owner does not warrant the exercise of the power thus to affect the property of other owners and the public generally. (Y. W. H. Assn. v. Bd. of Standards & Appeals, 266 N. Y. 270.) If the present application should be allowed because the property involved adjoins an unrestricted district, all other owners thereafter in the same situation would be entitled to like relief, and soon the purpose of the zoning regulation would be entirely defeated. To hold that the presence of the elevated railroad warrants a variation in this case would be unfair to the owners of other property along the railroad unless all such property were treated alike. This would mean a new classification of property, which is a matter for legislative rather than judicial action. Order sustaining the 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. Lazansky, P. J., Young, Hagarty, Johnston and Taylor, JJ., concur.