Levy v. Bd. of Standards & Appeals of City of New York
| Decision Date | 21 May 1935 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | LEVY v. BOARD OF STANDARDS AND APPEALS OF CITY OF NEW YORK et al. |
OPINION TEXT STARTS HERE
Proceeding in the matter of the application of Tilly Levy against the Board of Standards and Appeals of the City of New York and others, to review a determination of the Board of Standards and Appeals granting the application of T. H. Fraser Mortgage Corporation for a variance in a building zone resolution so as to permit the erection and maintenance of a gasoline service station at Atlantic avenue and Boerum place in the borough of Brooklyn. From an order of the Appellate Division, Second Department, which reversed on the law and facts, order of Special Term, dismissed certiorari proceedings and reinstated determination of Board of Standards and Appeals (243 App. Div. 609, 276 N. Y. S. 370), petitioner appeals.
Order of Appellate Division reversed, and that of Special Term affirmed.Appeal from Supreme Court, Appellate Division, Second Department.
Reginald S. Hardy, Gardiner Conroy, and Murray Riskin, all of Brooklyn, for appellant.
Henry F. Cochrane, of New York City, for respondent T. H. Fraser Mortgage Corporation.
Paul Windels, Corp. Counsel, of New York City (Paxton Blair, of New York City, of counsel), for respondents Board of Standards and Appeals and others.
The owner of a vacant lot at the southwest corner of Atlantic avenue and Boerum place in the borough of Brooklyn applied to the Board of Standards and Appeals for permission to erect and maintain a gasoline service station. The premises have a frontage of 57 feet on Atlantic avenue and approximately eighty feet on Boerum place. The rear 25 feet of the premises is in an unrestricted district; all the remainder of the premises is in a business district, and, under the restrictions imposed by the zoning ordinance, no gasoline service station may be erected or maintained there. The Board of Standards and Appeals, after a hearing and personal inspection of the premises, has granted the application for a variation from the general restrictions.
The present owner purchased the premises in 1931. The owner tore down three old buildings then on the premises. The rental which could be obtained from these buildings was too small to cover repairs, taxes, and other carrying charges. Probably it was good business judgment to tear down these buildings. The Board of Standards and Appeals in their return state that a committee of the board reported that ‘After a careful survey of the neighborhood, the Committee is of the opinion that the petitioner has justified his basis of hardship, both Atlantic avenue and Boerum place being heavily trafficked streets, with trolley tracks on each street and that a commercial use of this corner would not be good judgment.’ We assume that the survey by the board, supplementing the photographs and other evidence produced at the hearing, justify the finding that ‘a commercial use of this corner would not be good judgment.’ We assume also that upon this record the board could find that the most profitable improvement of these premises would be the erection of a gas station. Indeed, it may be that the premises cannot at present be profitably put to any other use. The question remains whether, upon such findings, the Board of Standards and Appeals had power to grant the desired variation.
The board may act upon its own knowledge of conditions or may make its own survey. ‘In that event, however, it must set forth in its return the facts known to its members, but not otherwise disclosed.’ People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280, 287, 155 N. E. 575, 577. The court will not interfere with the exercise of judgment by the board where the record discloses a basis for the exercise of judgment, but in the return there must be disclosure of facts upon which a reviewing court can determine that, under the statute, the board had power to grant a variation, and that there was scope for the exercise of such judgment.
The only facts disclosed by this record relate to the conditions in the district where the property is situated. So far as appears, they apply to all pieces of property in the neighborhood which front on Atlantic avenue and which are subject to the general rules restricting the use of premises in a business district. True, the premises for which a variation of the general restrictions is asked lie partly in an unrestricted district, but it is not shown, and the board has not found, that this circumstance adds to the hardship under which all the owners of property in that neighborhood, subject to the same restrictions, labor.
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