Arverne Bay Const. Co. v. Thatcher

• Decision Date: 24 May 1938
• Parties: ARVERNE BAY CONST. CO. v. THATCHER, Com'r of Buildings, et al.
• Court: New York Court of Appeals Court of Appeals

278 N.Y. 222

15 N.E.2d 587

ARVERNE BAY CONST. CO.

v.THATCHER, Com'r of Buildings, et al.

Court of Appeals of New York.

May 24, 1938.

Action by the Arverne Bay Construction Company against Edwin H. Thatcher as Commissioner of Buildings of the Borough of Brooklyn, City of New York, and another, to secure an adjudication that the restrictions placed on the usage of plaintiff's property by a zoning ordinance were unconstitutional. From a judgment of the Appellate Division, 253 App.Div. 285, 2 N.Y.S.2d 112, reversing a judgment of the Special Term, declaring the zoning resolution confiscatory, unconstitutional, and void, the plaintiff appeals.

Judgment of Appellate Division reversed and judgment of Special Term affirmed. Appeal from Supreme Court, Appellate Division, Second Department.

John P. McGrath, of Brooklyn, for appellant.

William C. Chanler, Corp. Counsel, of New York City (Paxton Blair and Francis J. Bloustein, both of New York City, of counsel), for respondents.

LEHMAN, Judge.

The plaintiff is the owner of a plot of vacant land on the northerly side of Linden boulevard in the borough of Brooklyn. Until 1928 the district in which the property is situated was classified as an ‘unrestricted’ zone, under the Building Zone Resolution of the city of New York (New York Code of Ordinances, Appendix B). Then, by amendment of the ordinance and the ‘Use District Map,’ the district was placed in a residence zone. The plaintiff, claiming that its property could not be used properly or profitably for any purpose permitted in residence zone and that, in consequence, the zoning ordinance imposed unnecessary hardship upon it, applied to the Board of Standards and Appeals, under section 21 of the Building Zone Resolution, for a variance which would permit the use of the premises for a gasoline service station. The application was denied, and, upon review in certiorari proceedings, the courts sustained the determination of the board. People ex rel. Arverne Bay Construction Co. v. Murdock, 247 App.Div. 889, 286 N.Y.S. 785; affirmed, 271 N.Y. 631, 3 N.E.2d 457.

Defeated in its attempt to obtain permission to put its property to a profitable use, the plaintiff has brought this action to secure an adjudication that the restrictions placed upon the use of its property by the zoning ordinance result in deprivation of its property without due process of law and that, in so far as the ordinance affects its property, the ordinance violates the provisions of the Constitution of the United States and the Constitution of the State of New York. U.S.C.A.Const. Amend. 14; Const.N.Y. art. 1, § 6. In this action it demands as a right what has been refused to it as a favor. The defendant challenges the right of the plaintiff to urge the invalidity of the zoning ordinance after denial of an application for a variance made under its provisions. At the outset, and before considering the merits of the plaintiff's cause of action, we must dispose of this challenge to the plaintiff's right to maintain this action.

The application for the favor of a variance is an appeal primarily to the discretion of the board, conferred upon it by the ordinance. It necessarily assumes the validity of the ordinance. A successful attack upon the validity of the ordinance destroys the foundation of any discretion conferred by the statute. To invoke the discretion of the board, an owner of property must show ‘unnecessary hardship.’ When that has been shown the board may grant ‘a special privilege’ denied to others differently situated. People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 155 N.E. 575. Without such ‘special privilege,’ strict enforcement of a general rule restricting the use of all property within a district might work such hardship upon a particular owner that in effect it would deprive the owner of his property without compensation. The power to grant a variation might give such flexibility to the rule or its application that a property owner can, without violation of its terms, make reasonable use of his property. Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642.

The rule established by that case is this: To sustain an attack upon the validity of the ordinance an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions upon his property preclude its use for any purpose to which it is reasonably adapted. Thus it must appear either that the ordinance does not authorize a variation of the general rule which would admit of such use or that such variation has been refused by the administrative board in the exercise of a discretion which the ordinance confers upon it. Only two possible questions can be presented for decision upon an application for a variation: First, does the ordinance confer upon the administrative board power to grant the variation which is asked; second, if the board has power to grant it, does the exercise of a wise discretion call for the use of the power in the particular case? The issue whether without such variation the strict enforcement of the general rule would work such hardship as to constitute the taking of property without due process of law is not directly presented upon an application for a variation, and it follows that the denial of the application cannot be a binding adjudication that, without such variation, enforcement of the general rule will not deprive the applicant of his property without due process of law. True, where the board in the exercise of its discretion denies an application for a variation which it has power to grant, argument may be made that a refusal to exercise such discretion can, legally, be based only upon a finding that even without such variation there is no unnecessary hardship, and that the enforcement of the general rule would not deprive the owner of his property or preclude a reasonable use of the property. Then the same considerations which induced the board to deny the application might constrain the court to decide that the statute is valid. None the less, the questions presented would not be identical and the denial of the application for a variance would not be a conclusive adjudication of the validity of the statute; and that would be true even though the courts had, upon review by certiorari, sustained the determination of the board. We proceed, then, to a consideration of the merits of the plaintiff's claim, and in our discussion it will appear that in this case the denial of the application for a variation may have been based upon considerations which cannot affect the judgment of the court in passing upon the validity of the ordinance in so far as it applies to the plaintiff's property.

The amendment to the zoning ordinance, about which complaint is made, changed from an unrestricted zone to a residential district the property abutting on Linden boulevard for a distance of four miles, with the exception of a small section at a railroad crossing. The district is almost undeveloped. There had been no building construction in that area for many years prior to the amendment. The chairman of the building zone commission which drafted the zoning ordinance, testifying as an expert witness for the defendant, described the district as in a ‘transition state from the farms as I knew them thirty and forty years ago south of this location.’ There are some old buildings used for non-conforming purposes, left from the days when the district was used for farming. There are only three buildings in Linden boulevard in a distance of about a mile. One of these buildings is a cow stable and a second building is used as an office in connection with the dairy business conducted there. A gasoline station erected on that boulevard would, it is plain, not adversely affect the health, morals, safety or general welfare of the people who now live in that neighborhood. Justification, if any, for the ordinance restricting the use of the property on Linden boulevard to residential purposes must be found in the control over future development which will result from such restrictions.

Without zoning restrictions, the self-in terest of the individual property owners will almost inevitably dictate the form of the development of the district. The plaintiff claims, and has conclusively shown at the trial, that at no time since the amendment of the zoning resolution could its property be profitably used for residential purposes. The expert witness for the city, to whose testimony we have already referred and whose qualifications are universally recognized, admits that such a residential improvement would, even now after the lapse of ten...