Socha v. Smith
| Decision Date | 23 April 1970 |
| Citation | 26 N.Y.2d 1005,259 N.E.2d 738,311 N.Y.S.2d 306 |
| Parties | , 259 N.E.2d 738 Walter J. SOCHA, Respondent, v. Gilbert E. SMITH et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Third Department, 33 A.D.2d 835, 306 N.Y.S.2d 551.
Higgins, Roberts, Beyerl & Coan, Schenectady, of counsel for respondents-appellants.
George R. Mills, Jr., Scotia, of record for respondents-appellants.
John L. Desmond, Scotia, for petitioner-respondent.
Landowner brought an Article 78 proceeding against members of Town Board to compel them to grant landowner's application for a zoning change from R--1--15 (single-family residences) to R--3 (multiple dwellings).
The Supreme Court, Schenectady County, rendered judgment for the landowner, and the members of the Town Board appealed.
The Appellate Division, Staley, J., affirmed the judgment and held that in absence of evidence that public health, safety, and welfare would be served by upholding ordinance zoning landowner's realty for single-family residence and in absence of evidence that a multiple-family use would affect adversely value of other premises in area, and in view of evidence showing that realty was unadaptable for single family residential use, landowner was entitled to succeed on his application for a zoning change. Herlihy, P.J., dissented. He was of the opinion that landowner had failed to overcome the presumption of the constitutionality of the zoning ordinance and that the record affirmatively established the propriety of the zoning and that the action of members of the Town Board was neither unreasonable nor arbitrary.
The members of the Town Board appealed to the Court of Appeals, contending that they were under no burden of proving that zoning ordinance was reasonably related to a public purpose, and that the case of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, does not dictate result reached by court, and that landowner failed to carry his burden of proof, and that record contained adequate proof to sustain the reasonable and essential relation between the zoning ordinance and the public purposes which it was designed to accomplish.
Order affirmed, without costs, in the following memorandum: The existence of a commercial storage business on the subject property and the proximity of other businesses on a nearby state highway indicate that the construction of apartments would actually upgrade the area and that the refusal of the ...
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...and welfare of the community is threatened if existing zoning regulations fall". Nor should our affirmance in Socha v. Smith, 26 N.Y.2d 1005, 311 N.Y.S.2d 306, 259 N.E.2d 738, or our decisions in Salamar Bldrs. Corp. v. Tuttle, 29 N.Y.2d 221, 325 N.Y.S.2d 933, 275 N.E.2d 585 or Stevens v. T......
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Humble Oil & Refining Co. v. Dekdebrun
...as exist in this case (Salamar Builders Corp. v. Tuttle, Supra; Socha v. Smith, 33 A.D.2d 835, 306 N.Y.S.2d 551 affd. 26 N.Y.2d 1005, 311 N.Y.S.2d 306, 259 N.E.2d 738). Thus, on the facts the board could not lawfully deny the application without a showing that their action would serve the p......
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Todd Mart, Inc. v. Town Bd. of Town of Webster
...in violation of the Fifth and Fourteenth Amendments (cf. Socha v. Smith, 33 A.D.2d 835, 306 N.Y.S.2d 551, affd. 26 N.Y.2d 1005, 311 N.Y.S.2d 306, 259 N.E.2d 738). Therefore, the remaining issue is whether the Board's determination deprives petitioner of due process of law, that is, whether ......
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North Shore Steak House, Inc. v. Board of Appeals of Incorporated Village of Thomaston, Nassau County
...Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, although Socha v. Smith, 33 A.D.2d 835, 306 N.Y.S.2d 551, affd. 26 N.Y.2d 1005, 311 N.Y.S.2d 306, 259 N.E.2d 738, may cast some doubt on the proposition that the Fulling doctrine does not apply to 'use' variances. There, a change in z......