Thomas v. Bd. of Standards & Appeal of New York

• Decision Date: 04 March 1943
• Citation: 290 N.Y. 109,48 N.E.2d 284
• Court: New York Court of Appeals Court of Appeals
• Parties: THOMAS et al. v. BOARD OF STANDARDS AND APPEALS OF CITY OF NEW YORK et al.

290 N.Y. 109

48 N.E.2d 284

THOMAS et al.

v.BOARD OF STANDARDS AND APPEALS OF CITY OF NEW YORK et al.

Court of Appeals of New York.

March 4, 1943.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding by Germaine M. Thomas and others for a writ of certiorari to review a determination of the Board of Standards and Appeals of the City of New York, granting the Bay Parkway Holding Corporation a variance from a provision of the City Zoning Resolution. From an order of the Appellate Division, 263 App.Div. 352, 33 N.Y.S.2d 219, affirming an order of the Special Term, Kadien, J., confirming the determination, petitioners appeal.

Orders reversed and determination annulled, without prejudice to respondent corporation's right to invoke other provisions of the resolution. Reginald S. Hardy, of New York City, for appellants.

William C. Chanler, Corp. Counsel, of New York City (James Hall Prothero, Paxton Blair, and Raymond J. Horowitz, all of New York City, of counsel), for Board of Standards and Appeals, respondent.

Paul Friedman, of New York City, for Bay Parkway Holding Corporation, respondent.

LOUGHRAN, Judge.

On June 7, 1935, Violet Kramer became the owner of a plot of land at the southeast corner of Utica avenue and Clarendon road in the borough of Brooklyn. A little later, Bay Parkway Holding Corporation contracted with her to take the title. Bay Parkway Holding Corporation wished to erect a gasoline service station upon the property, but the district was zoned for business uses and such a structure was barred therefrom by section 4 of the Amended Building Zoning Resolution. See People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 155 N.E. 575;Young Women's Hebrew Ass'n v. Board of Standards and Appeals of City of New York, 266 N.Y. 270, 194 N.E. 751. Consequently the contract of sale contained these words: ‘It is understood and agreed that this contract is conditional upon the seller procuring a variation of the Zoning Law from the Board of Standards and Appeals so as to permit the erection and maintenance of a gasoline service station upon these premises * * * and in the event that the seller fails to procure such permit, then this contract shall be null and void.’

Pursuant to that stipulation, Kramer on October 15, 1935, petitioned the Board of Standards and Appeals so to vary the Zoning Resolution in her favor. To that end, she invoked the jurisdiction conferred upon the Board by section 21. It is thereby provided: ‘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.’ Before Kramer's invocation of this dispensing faculty came on to be considered by the Board, she withdrew her petition because, as it happened, she had previously conveyed the property to Bay Parkway Holding Corporation on October 5, 1935.

On April 21, 1936, Bay Parkway Holding Corporation, as the then owner, prevailed upon the Board to reopen the matter. A hearing ensued on May 12, 1936, with the result that objections made by owners of nearby properties were overruled, and the requested variance was allowed without limitation in point of time and subject only to ‘such conditions as the board may impose after plans are filed.’ The objectors were not content with that disposition. They pressed their protests by way of a certiorari proceeding in the Supreme Court and there the unrestricted grant of variance was annulled. See Finn v. Board of Standards and Appeals of City of New York, 163 Misc. 296, 298 N.Y.S. 256.

So the matter stood until January 30, 1940, when Bay Parkway Holding Corporation persuaded the Board to consent to a rehearing. Additional proof of the claimed unnecessary hardship having thereupon been adduced, a second grant of variance followed on April 30, 1940, though this time the exemption was limited to a term of five years and was conditioned upon compliance with detailed specifications for the erection of the proposed gasoline service station. What follows has reference only to this smaller variance.

The validity thereof was questioned by the objectors in a second certiorari proceeding commenced by them on June 6, 1940. Special Term dismissed the order of certiorari and confirmed the determination of the Board. On appeal by the objectors, the Appellate Division reversed the finding that Bay Parkway Holding Corporation had established the existence in its case of the uncommon hardship contemplated by section 21. See Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851. None the less for that, however, the variance still endured, for the Zoning Resolution had been amended (as of June 28, 1940) by the addition of a new subdivision (f) to section 7 thereof and a majority of the Appellate Division held (1) that the advantage of this amendment was open to Bay Parkway Holding Corporation; and (2) that the variance was valid thereunder on the findings of the Board. Upon this fresh basis, the erroneous determination made by the Board under section 21 was saved, and the confirmatory order of Special Term was affirmed accordingly. As appellants in this court, the objecting owners of neighboring properties now contest the result reached by the Appellate Division.

Section 7(f) provides: ‘Use District Exceptions. The Board of Standards and Appeals may, in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, determine and vary the application of the use district regulations herein established in harmony with their general purpose and intent as follows: * * * (f) Permit, for a stated term of years, in a business business-1 retail or retail-1 district, where the provisions of s...