Crossroads Recreation, Inc. v. Broz

• Decision Date: 28 February 1958
• Citation: 4 N.Y.2d 39,172 N.Y.S.2d 129,149 N.E.2d 65
• Parties: , 149 N.E.2d 65 In the Matter of CROSSROADS RECREATION, Inc., et al., Appellants, v. Frank P. BROZ et al., Constituting the Board of Appeals of the Village of Mount Kisco, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 129

172 N.Y.S.2d 129

4 N.Y.2d 39, 149 N.E.2d 65

In the Matter of CROSSROADS RECREATION, Inc., et al., Appellants, v. Frank P. BROZ et al., Constituting the Board of Appeals of the Village of Mount Kisco, Respondents.

Court of Appeals of New York.

Feb. 28, 1958.

Edward T. Salvato, Mt. Kisco, for appellants.

Frederick E. Shulman, Mt. Kisco, for respondents.

CONWAY, Chief Judge.

In 1939 Crossroads Recreation, Inc. (hereinafter referred to as 'Crossroads') acquired a triangular shaped parcel of land in the Village of Mount Kisco (hereinafter referred to as the 'Village'). At that time, the land was vacant except for a gasoline station erected in and operating since 1928 which was located at the southerly end of the property. Shortly after Crossroads' purchase of the property, it installed bowling alleys in the middle of the parcel. The northerly portion of the parcel, however, remained vacant. In 1945 the Building Zone Ordinance of the Village was amended so as to prohibit the use of the property, located in a Business 'A' district, as a gasoline station. Thereafter, in such a Business 'A' district, only retail stores generally, real estate offices, etc., were permitted uses. Thus did the use of the property as a gasoline station become a nonconforming use. In the early part of 1955, Crossroads entered into a one-year lease for the gasoline station with Kesbec, Inc., with a provision that, if permission were granted to enlarge and modernize the station, Kesbec would enter into a 20-year lease with Crossroads. One Pietrobono, who had been operating the gasoline station since 1947, as a subtenant of an earlier tenant of Crossroads, entered into a sublease with Kesbec.

On October 3, 1955 Crossroads, joined by Kesbec, applied to the building inspector of the Village for permission to tear down the existing gasoline station and to erect in its stead a modern and much larger establishment. While it is clear here, and no one questions the fact, that the petitioners may continue to operate the gasoline station as it presently exists because it was devoted to such a use prior to 1945, when the prohibitory zoning ordinance took effect (see People v. Miller, 304 N.Y. 105, 107, 106 N.E.2d 34) the petitioners may not 'enlarge that use as a matter of right' (Chandler v. Corbett, 274 App.Div. 1073, 1074, 86 N.Y.S.2d 646, 647). Were that not so, zoning laws would, in effect, be rendered nugatory and nonconforming parcels, as a result, would assume great values 'a premium would then be the reward for violating the law' (Pisicchio v. Board of Appeals of Village of Freeport, 165 Misc. 156, 157, 300 N.Y.S. 368, 370). The present condition of the gasoline station may be summed up thus: The size of the building is about 16 feet by 20 to 22 feet; there are no rest rooms; there are no indoor lubritorium facilities; there is only an outside lift for lube work; there are two pump islands with two pumps on each island; there are two 2,000-gallon underground gasoline tanks, there is one 1,000-gallon underground tank, and there are four 550-gallon underground tanks. The gasoline station sought to be erected would take the following form: The old building would be torn down and replaced by a building 45 feet by 30 feet; the new building would include a sales office, a storage room, two rest rooms, and two lubritorium bays; the outside lift would be removed; the two pump islands would be removed; three new pump islands would be installed with two pumps on each island; the seven underground gasoline tanks would be retained, and a new 3,000-gallon underground tank would be installed. On October 4, 1955 the building inspector denied the application on the ground that the proposed action would be violative of subdivision (b) of section 2 of the Building Zone Ordinance, which provides that 'no building or structure containing a non-conforming use shall * * * be hereafter extended or enlarged except in conformance with the provisions of this ordinance.'

On October 10, 1955 the petitioners appealed to the Board of Appeals of the Village and made application for a variance pursuant to subdivision (2) of section 19 of the Building Zone Ordinance on the ground of 'unnecessary hardships in the way of carrying out the strict letter of this ordinance'. After a public hearing was had, at which time testimony was adduced and exhibits submitted, the Board of Appeals, in unanimously denying the application for a variance, found, inter alia, that the petitioners failed to prove the requisite hardship. The Appellate Division confirmed that determination.

The Board of Appeals may grant a variance on the ground of hardship where the record shows that '(1) the land in question 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 in the neighborhood * * *; and (3) that the use to be authorized by the variance will not alter the essential character of the locality' (Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851, 853). Since the record here does not, as we shall demonstrate, show that 'the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone', we need not consider the requirements numbered (2) and (3) above.

Petitioners contend, because of the inadequacy of parking facilities, that there was no conforming use to which the property could be put; that, because of the shape and size of the property, the only use to which it could be put was that of a gasoline station; that the 'Sinclair' gasoline station located--across the street form the petitioners' station was granted permission to modernize its station; that petitioners' station has no rest rooms and no indoor lubritorium facilities; that a modern and much larger station would beautify the property; and that, therefore, they should be allowed to demolish their existing station and, in its stead, to erect a modern and much larger gasoline station other-wise, they would not be able to 'face the competition.'

We are in agreement with the Board of Appeals that there was here a failure of proof as to the requisite 'hardship' which must be shown to warrant the granting of a variance.

In order to demonstrate hardship, the petitioners had the burden of showing that 'the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone'. Since the operation of their gasoline station, as it presently exists, was a nonconforming use which was suffered to continue because it had been devoted to such a use before the prohibitory zoning ordinance took effect, it was a use which was 'allowed in that zone'. Business 'A' uses, such as retail stores generally, real estate offices, etc., were also, of course, 'allowed in that zone'. Hence, the petitioners had the burden of proving that their property could not yield a 'reasonable return' if used for a gasoline station (as it presently exists) or for any Business 'A' use (retail stores generally, real estate offices, etc.).

There is no proof whatever in this record to show: (1) the amount of purchase price paid by Crossroads for the entire parcel of property; (2) the present value of the entire parcel of property or any part thereof; (3) the expenses and carrying charges in connection with the maintenance of the entire parcel of proerty or any part thereof; (4) the amount of taxes on the entire parcel of property or any part thereof; (5) the amount of any mortgages, liens or other incumbrances, if any, on the entire parcel of property or any part thereof; (6) the amount of annual income realized by the gasoline station before the Sinclair station had been modernized, and after the Sinclair station had been modernized; (7) the amount of annual income realized by the bowling alley business; (8) the amount of rent paid to Crossroads by its earlier tenant, the operator of the bowling alley business; and (9) an estimate as to what a reasonable return on the entire parcel of property or any part thereof should be based on the initial investment of Crossroads or the present value of the property.

Actually, the only 'dollars and cents' proof offered and, because it was isolated, it was indeed meaningless and innocuous was that Crossroads presently realizes a rental of $150 per month from Kesbec under its one-year lease of the gasoline station and that, if the variance be granted, Kesbec would spend $40,000 to $50,000 to erect a modern and much larger gasoline station, and would then pay Crossroads a rental of $200 per month for 20 years. Similarly, the proof offered through Pietrobono was entirely unavailing. Pietrobono testified that before the Sinclair gasoline station had been modernized, the petitioners' station 'did pretty good'; but after the Sinclair station had been modernized, to quote Pietrobono, they could not 'face the competition.' The fatal omission in that testimony is obvious. There simply were no underlying facts adduced which permitted of the conclusion that the gasoline station of petitioners was as a result of and after the modernization of Sinclair's station a losing proposition. It may well be that Crossroads' station did lose some business as a result of Sinclair's modernization but, since there is not an item of proof to indicate the extent to which Crossroads suffered a reduction in business, there is no basis for the conclusion that its income was less than a reasonable return. Actually, there should at least have been proof as to what the income of Crossroads' station was before the Sinclair station was modernized, and what the income was after the Sinclair station was modernized. Only thus could loss of business, if any, be measured. But even then, in the absence of additional proof as to taxes, expenses, carrying charges, etc., the problem of whether the reduced income was or was not a reasonable return would have to be...