People ex rel. Fordham Manor Reformed Church v. Walsh

• Decision Date: 23 February 1927
• Parties: PEOPLE ex rel. FORDHAM MANOR REFORMED CHURCH et al. v. WALSH et al.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 280

155 N.E. 575

PEOPLE ex rel. FORDHAM MANOR REFORMED CHURCH et al.

v.WALSH et al.

Court of Appeals of New York.

Feb. 23, 1927.

Application for certiorari by the Fordham Manor Reformed Church and others against William E. Walsh and others, constituting the Board of Appeals of the City of New York, wherein Samuel Marer intervened. From an order of the Appellate Division (217 App. Div. 177, 216 N. Y. S. 260), reversing by a divided court an order of the Special Term of the Supreme Court, which annulled a determination of the Board of Appeals of the City of New York, and confirming said determination, the People, on the relation of Fordham Manor Reformed Church and others, appeal.

Order of the Appellate Division reversed, and that of Special Term affirmed, without prejudice to renewal of application to the Board.

Appeal from Supreme Court, Appellate Division, First Department.

Abel E. Blackmar and John N. Regan, both of New York City, for appellants.

George P. Nicholson, Corporation Counsel, of New York City (John F. O'Brien, J. Joseph Lilly, and William T. Kennedy, all of New York City, of counsel), for respondent Board of Appeals.

Monroe Goldwater and Norman B. Kuklin, both of New York City, for respondent Marer.

CARDOZO, C. J.

The city of New York has been divided by its board of estimate and apportionment into zones or districts of three classes: Residence districts, business districts, and unrestricted districts. Ordinances New York City, Zoning Resolution, §§ 2, 3, 4, 5. In residence districts, buildings may be used for dwellings, clubs, churches, schools, hospitals, railroad passenger stations, and a few other kindred purposes. In business districts, enumerated forms of trade and industry, 45 in number, are prohibited. Garages for more than five motor vehicles are among the buildings barred. In unrestricted districts, there are not restraints upon use.

The Board of Appeals, after public notice and hearing, may permit in a business district the erection of a garage ‘in any portion of a street between two intersecting streets in which portion there exists a garage for more than five motor vehicles * * * which existed on July 25, 1916.’ Zoning Resolution, § 7, subd. (e). No provision is made for a like variation in residence districts. The board may also permit the erection of a garage in either a business or a residence district if ‘the petitioner files the consents duly acknowledged of the owners of 80 per cent. of the frontage deemed by the board to be immediately affected by the proposed garage.’ Section 7(g). finally, ‘where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution, the Board of Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secured and substantial justice done.’ Zoning Resolution, § 21. Cf. Greater New York Charter, § 242-b.

One Samuel Marer was the owner in May, 1925, of a plot of land, 150 feet in width, fronting on the west side of Aqueduct avenue, between Kingsbridge road and 192d street, in the borough of the Bronx. He owned also at this time a plot to the north, extending to Kingsbridge road, about 86 feet in width. Kingsbridge road, together with a strip of land 100 feet along it, is in a businesss district. Aqueduct avenue except for this strip of 100 feet is in a residence district. Marer wished to build a garage upon the southerly 150 feet of his total plottage, but the zoning law forbade. The greater part of the 150 feet was in a district classified as residence. His plans being rejected by the superintendent of buildings, he petitioned the Board of Appeals to vary the zoning regulations in his case. He could not bring himself within Zoning Resolution, § 7-e. There was, it is true, another garage on the same block, immediately to the south, a garage erected before July 25, 1916, when the zoning law took effect. The presence of such a garage, without more, permits the board, in its discretion, to authorize a new garage in a business district. It has no such effect in a residence district. He could not bring himself within section 7(b), which prescribes the powers of the board ‘where a use district boundary line divides a lot in a single ownership.’ ‘A use authorized on either portion of such lot’ may then be extended ‘to the entire lot, but not more then 25 feet beyond the boundary line of the district in which such use is authorized.’ Besides, there is nothing to show that the northerly 14 feet of the land to be used for the proposed garage could not have been combined in some appropriate use with the 86 feet, vacant and in the same ownership, extending to Kingsbridge road. He could not bring himself within section 7(g), for he did not file the consents of the owners of 80 per. cent. of the frontage affected by the change. His right to relief, if it exists at all, must have its foundation in section 21, whereby the Board of Appeals is invested with dispensing power ‘where there are practical difficulties or unnecessary hardships' in the way of carrying out the strict letter of the law. Practical difficulties there obviously are none. The inquiry is thus reduced to this, whether there is any support for a finding of unnecessary hardship.

We have seen that the plot immediately adjoining to the south is already occupied by a garage. The existence of this garage was known presumably to the board of estimate and apportionment when it adopted the zoning map. None the less, it placed the street within the boundaries of a residence district. This was a manifestation of its will that the residence use should be maintained unless unnecessary hardship in individual or peculiar cases would otherwise result. The section is a growing one, as yet but sparsely settled. The use to be made of Marer's lot, with its frontage of 150 feet, will fix for years to come the quality of the street. Next to the old garage, on the south, there is a lot still vacant, 62 1/2 feet wide. Its owner has appeared in this proceeding and protests against the change. Next is an apartment house. The owner of that lot consents. On the same side of Aqueduct avenue, but across 192d street is another apartment house. The owner of that lot protests. On the other side of Aqueduct avenue, between Kingsbridge road and 192d street, is a strip of land belonging to the City of New York, laid out as a park. Many children play there. Its attractiveness as a playground will be impaired, at least in some degree, by the multiplication of garages. The next street to the east, Grant avenue, also in a residence district, is occupied by dwellings. The rear windows of these dwellings look out across the strip of park upon the site of the proposed garage. Many of the owners protest against the change. The next street to the west, University avenue, also in a residence district, is occupied chiefly by dwellings, though there are some lots in use for business. The rear of the proposed garage will be contiguous to the rear of one of these dwellings, an apartment house. Its owner has not consented to a variation of the use.

Upon a record made up for the most part of informal colloquy with counsel, the board granted the petition, one member dissenting. Owners of nearby property, conceiving themselves aggrieved, sued out a writ of certiorari, under Greater New York Charter, § 719-a. By the terms of the statute, the return is to contain a copy of any paper acted upon by the board, and ‘must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision.’ The court may take evidence either through a referee or otherwise, ‘if, upon the hearing, it shall appear * * * that testimony is necessary for the proper disposition of the matter.’ Cf. People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, 430, 431,46 N. E. 875. The return to this writ annexes a copy of the proceedings at the hearing, and states the following reasons for the action of the board:

‘(1) There is an existing one-story garage immediately adjoining the proposed garage, which has a frontage on Aqueduct avenue of 67 feet 5 inches and runs through the entire block from Aqueduct avenue to University avenue, as shown on the blueprint plan. The existence of said garage, which accommodates approximately 180 cars, is sufficient justification to permit another garage next door. This is precisely what the board has done by its decision herein.

‘(2) The Board of Appeals is of the opinion that a real hardship would be imposed on the owner of said property if prevented from using it for garage purposes.

‘(3) The public health, safety, and general welfare is secured and substantial justice done to all the parties interested by the decision of the Board of Appeals in view of the character of the neighborhood and the existing garage next door....