Great Neck Suburban Hotel Corp. v. Board of Zoning and Appeals of Town of North Hempstead

• Decision Date: 30 January 1962
• Citation: 228 N.Y.S.2d 1009,32 Misc.2d 1082
• Parties: Application of GREAT NECK SUBURBAN HOTEL CORPORATION, Petitioner, For an order v. The BOARD OF ZONING AND APPEALS OF the TOWN OF NORTH HEMPSTEAD, and George A. Kramer, John F. Isaacs, Kenneth D. Molloy, Abe Seldin, and Harry J. Siegel, constituting said Board, Respondents, to review the action and decision of the said Board of Zoning and Appeals.
• Court: New York Supreme Court

Page 1009

228 N.Y.S.2d 1009

32 Misc.2d 1082

Application of GREAT NECK SUBURBAN HOTEL CORPORATION Petitioner, For an order v. The BOARD OF ZONING AND APPEALS OF the TOWN OF NORTH HEMPSTEAD, and George A. Kramer, John F. Isaacs, Kenneth D Molloy, Abe Seldin, and Harry J. Siegel, constituting said Board, Respondents, to review the action and decision of the said Board of Zoning and Appeals.

Supreme Court, Special Term, Nassau County, Part I.

Jan. 30, 1962.

Berg & Harrison, Great Neck, for petitioner. Harold Wm. Harrison, Great Neck, of counsel.

Robert C. Meade, Town Attorney, Manhasset, for respondents. Arthur W. Block, Floral Park, of counsel.

WILLIAM R. BRENNAN, Jr., Justice.

Application pursuant to Article 78 of the Civil Practice Act for an order reviewing and annulling a determination of the respondent Board of Zoning and Appeals of the Town of North Hempstead wherein the petitioner was denied permission to construct a hotel on premises located on the north side of Northern Boulevard, 533 feet west of Middle Neck Road, Great Neck, Town of North Hempstead.

The subject property has a frontage on Northern Boulevard of 200 feet and a depth of 280 feet. It is in a Business 'A' District. A hotel is a permitted use. The petitioner applied for permission to build a hotel and swimming pool, but, because the plans apparently showed insufficient off-street parking area, the building inspector denied approval. A variance of Article X Section 109.1 of the Building Zone Ordinance was sought from and denied by the respondents.

It is the contention of petitioner that (1) a denial of the variance on October 25, 1961 was arbitrary and unreasonable, and (2) the ordinance itself is illegal and unconstitutional.

In view of the fact that petitioner applied for a variance of the ordinance, it must be assumed in this proceeding that the ordinance itself is valid.

'* * * Many cases have stated that an application for a permit or variance under a zoning ordinance is primarily an appeal to the discretion of the board, which discretion is conferred upon it by the ordinance, and therefore by making the application the petitioner necessarily concedes, for the purpose of the application, the validity and constitutionality of the ordinance.' Matter of Diocese of Rochester v. Planning Bd., 1 N.Y.2d 508, 520, 154 N.Y.S.2d 849, 856, 136 N.E.2d 827, 832).

Therefore, the contention that the ordinance itself is unconstitutional must be disregarded.

The question remains whether or not the respondents' determination upon the facts presented to it was arbitrary and unreasonable.

The ordinance (section 109.1) of which a variance is sought requires 'two (2) square feet of parking space for each square foot of floor space used for commercial purposes within the main building.'

In its application for the variance the petitioner urged as a basis for relief that, 'It is economically and practically impossible to construct a building which will afford parking as required by the Ordinance, and applicant will suffered...