Forrest v. Evershed
| Decision Date | 30 December 1959 |
| Citation | 7 N.Y.2d 256,164 N.E.2d 841,196 N.Y.S.2d 958 |
| Parties | , 164 N.E.2d 841 Clifford FORREST et al., Appellants, v. William EVERSHED et al., Constituting the Zoning Board of Appeals of the Townof Irondequoit, Respondents, and John J. O'Connell et al., Intervenors-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Vito J. Cassan, Rochester, for appellants.
Emmett J. Schnepp, Rochester, for respondents.
Eugene R. Cusker, Rochester, for intervenors-respondents.
The Zoning Board of Appeals of the Town of Irondequoit (hereinafter called the Board), by variance of the zoning ordinance, granted John J. O'Connell and Walter J. Rodenhouse, intervenors in this proceeding, permission to erect a two-story medical office building on their vacant property located at the intersection of St. Paul Boulevard and Wicklow Drive in Irondequoit. It appears that the neighborhood, zoned 'E' Residential, is exclusively improved with conforming uses, consisting mainly of one-family homes, except for two gasoline stations erected prior to enactment of the zoning ordinance and situated about one mile from the subject property. Immediately adjacent to intervenors' vacant property on the south is a two and one-half story brick building, formerly a Masonic temple and presently a synagogue a permissive use under the zoning ordinance.
At the hearing before the Board, intervenor O'Connell appeared and asserted in a very brief statement that the 'negligence' of the town in permitting construction of the building now used as a synagogue had thwarted the development of his property for residential purposes, adding: 'nobody wants to build a house next to a public building'. In support of intervenor's position, a real estate broker contributed his conclusion to the effect that his efforts to sell the property over a period of five years were met by objections to the building next door. There was also submitted a map bearing the signatures of several property owners under a statement that they had no objection to the proposed variance. (One of these signatories later became a petitioner in this proceeding.) This represents the totality of 'evidence' submitted in support of the application.
Opposing intervenors' application were about 14 neighboring property owners, all located within 500 feet of the subject premises, and most of whom appeared by counsel. They objected generally to the proposed variance in the interest of preserving the 'beautiful' residential character of the neighborhood; because it would 'put a foot in the door' toward breaking down the ordinance; in order to preclude traffic hazards and unsafe conditions in consequence; and since property values would probably depreciate. On the question of salability, their counsel expressed the thought that the intervenors 'could (sell) for a fair price'.
At the conclusion of the hearing a committee of three Board members was appointed to inspect the site and the surrounding neighborhood. Upon reporting to the Board the committee submitted that, 'although this is a very nice neighborhood', it 'would be difficult to use' the subject lots 'for the purpose for which they are presently zoned'. A resolution was accordingly adopted granting the variance application, and petitioners commenced the instant article 78 proceeding.
Annexed to the petition were a number of affidavits which, among other things, tended to negate intervenors' contention that they could not profitably dispose of the property. They point out that O'Connell owned the land surrounding the synagogue, known as 'O'Connell's (amended) Seneca Park Tract' on a filed map; that the lots in said tract had 'protective covenants regulating the design, size, use and set-back'; that each of intervenors' two lots is assessed for $700; that the value of each lot is $3,000; that the Rabbi of the synagogue offered to purchase these lots for $6,500 for the purpose of building his home thereon, but that O'Connell would sell only on condition that the sale price be $10,000 and that his fellow-intervenor, Rodenhouse, be permitted to build the home; that one of the petitioners sought to purchase these lots to build his own home, but O'Connell indicated he would not sell unless Rodenhouse be allowed to build the home; that recently Rodenhouse told one of the petitioners that if he could not build the medical center he would sell the property to the synagogue for a parking lot; that in addition to the subject lots three homes adjoined the synagogue property; and that the construction of the medical center 'would be out of the character, use and design of the predominating neighborhood quality and standards'. Special Term refused to consider these affidavits, and in thus limiting its scope of review found the variance grant justifiable. The Appellate Division affirmed, with one dissenting vote.
The Legislature has confided in the zoning boards of appeal the discretionary power to 'vary or modify' the application of zoning restrictions to individual property owners upon a showing of 'practical difficulties or unnecessary hardships' (Town Law, Consol.Laws, c. 62, § 267, subd. 5; Irondequoit Zoning Ordinance, § 32, subd. b.). In pursuance of this policy, this court has defined the essential elements of hardship upon which the grant of a variance must be conditioned (Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851, 853).
The Board, in the instant proceeding, 'found' these elements to be present. The return of the Board includes its resolution which states, among other things, that (1) the subject property could not 'yield a reasonable return if used only for a purpose allowed in an 'E' District Residential'; (2) the intervenors' 'plight is due to the unique circumstances relating to its proximity to the said adjoining (synagogue) building * * * and not to the general conditions in the neighborhood', and (3) permitting the use authorized by the variance 'would not decrease residential values in the area and such use would not alter the essential character of the locality'.
These conclusions of the Board, with little more, however, do not justify a modification of the zoning ordinance. Upon review, a variance may not be sustained unless 'the hardship and its occasion (are) exhibited fully and at large' in the return of the proceedings (People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 290, 155 N.E. 575, 578; see Crossroads Recreation Inc. v. Broz, 4 N.Y.2d 39, 172 N.Y.S.2d 129). The return in the instant proceeding is clearly deficient in this regard. It indeed reflects the meagerness of the evidence before the Board. The only evidence in the record which bears on the question of 'reasonable return' the first element of hardship under the Otto case (supra) was that adduced by intervenor O'Connell and his real estate broker at the hearing before the Board. It was merely asserted that they tried to sell the property which he owned for 40 years, but could not. This will not do.
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