Gerling v. Board of Zoning Appeals of Town of Clay
| Citation | 6 A.D.2d 247,176 N.Y.S.2d 871 |
| Parties | Matter of the Application of Henry B. GERLING, and others, Petitioners-Appellants, To Review a Determination against BOARD OF ZONING APPEALS OF TOWN OF CLAY, and others, Respondents-Respondents, John Hinerwadel, Intervenor-Respondent. |
| Decision Date | 10 July 1958 |
| Court | New York Supreme Court Appellate Division |
Martin F. Kendrick, Smith & Sovik, Syracuse, for petitioners-appellants.
Russel L. Egleston and George W. Cregg, Melvin & Melvin, Syracuse, for respondets-respondents.
Lewis C. Ryan, Macht & Levinthal and Milton Macht, Syracuse, Hancock, Door, Ryan & Shove, Syracuse, of counsel, for intervenor-respondent.
Before McCURN, Presiding Justice, and WILLIAMS, BASTOW, GOLDMAN and HALPERN, JJ.
One Hinerwadel, the owner of a tract of land of about 32 acres in the Town of Clay, had conducted a clambake picnic area for over 40 years and a claim chowder processing operation for over 5 years on such property. In 1955, a zoning ordinance was enacted by the town, which placed this property in a 'residential' zone.
The owner applied for a building permit to erect certain additions to existing buildings. His application was rejected by the building inspector of the town on the ground that 'Proposed addition would create extension of non-conforming use which would be prohibited by present zoning.' He then applied to the Zoning Board of Appeals for a variance of the provisions of the zoning ordinance, stating that he desired to construct and extend existing buildings and that the proposed extension would violate the ordinance. A variance was requested so that he could provide 'larger and more modern facilities to accommodate increase in business also for the preparation of food products for off premise consumption.' His petition stated that the zoning ordinance resulted The petition also alleged that the land could not be used for any other reasonable use in conformity with the ordinance.
The Zoning Board of Appeals granted permission to extend the nonconforming use and this determination was confirmed by Special Term. In this Article 78 proceeding, the question presented is whether the Board had the right and power under the circumstances to grant a variance in the form of such extension.
Article VI, § 21 of the Town of Clay's Zoning Ordinance provides in part
Section 23 provides:
'3. Variances. After public hearing upon appeal in writing from a decision in writing by an administrative official, to vary or adapt the strict application of any of the requirements of this ordinance in the case of exceptionally irregular, narrow, shallow or steep lots, or other exceptional physical conditions, whereby such strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other case.
'No variance in the strict application of any provision of this ordinance shall be granted by the Board of Appeals unless it finds:
Under § 21 nonconforming uses are not to be extended except in accordance with the variance provisions and subject to the limitations of § 23. Subd. 3 of § 23 provides that when the land possesses certain exceptional or unique physical characteristics because of which the strict application of the ordinance would deprive the owner of the reasonable use of his land or building, a variance may be permitted, but in no other case. The section requires that the Board fully describe in its findings: (1) the special circumstances peculiar to the land or buildings involved which would deprive the applicant of the reasonable use of his property under a strict application of the ordinance; (2) the necessity of the variance for such reasonable use; (3) the fact that the variance is the minimum variance which will accomplish the purpose; and (4) that the granting of the variance will be in harmony with the general purpose and intent of the ordinance and not injurious to the neighborhood or otherwise detrimental to the public welfare. The findings of the Board do not meet these requirements.
Under the ordinance, the owner must make the same showing of a deprivation of reasonable use to justify an extension of an established nonconforming use as he would to justify a variance for a new use.
To establish deprivation of reasonable use, or 'hardship' as it is frequently termed, to obtain an original...
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