Young Women's Hebrew Ass'n v. Bd. of Standards

• Decision Date: 26 February 1935
• Parties: YOUNG WOMEN'S HEBREW ASS'N et al. v. BOARD OF STANDARDS AND APPEALS OF CITY OF NEW YORK et al. (GELKOM REALTY CORPORATION, Intervener).
• Court: New York Court of Appeals Court of Appeals

266 N.Y. 270

194 N.E. 751

YOUNG WOMEN'S HEBREW ASS'N et al.

v.BOARD OF STANDARDS AND APPEALS OF CITY OF NEW YORK et al. (GELKOM REALTY CORPORATION, Intervener).

Court of Appeals of New York.

Feb. 26, 1935.

Proceeding by the Young Women's Hebrew Association and others for an order of certiorari against the Board of Standards and Appeals of the City of New York and others, in which the Gelkom Realty Corporation intervened. From an order of the Appellate Division, First Department (242 App. Div. 626, 271 N. Y. S. 1104), entered June 21, 1934, affirming an order of the Special Term confirming a determination of the Board of Standards and Appeals of the City of New York, petitioners appeal by permission.

Reversed, and determination of Board of Standards and Appeals annulled.

Appeal from Supreme Court, Appellate Division, First department.

Harold H. Levin, of New York City, for appellants.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Seymour B. Quel, both of New York City, of counsel), for respondent.

Gustavus A. Rogers, of New York City, for intervener.

LOUGHRAN, Judge.

The intervener respondent is the owner of premises at the northwest corner of Fifth avenue and 110th street, Manhattan, city of New York. The property is wholly within a district zoned for business. ‘In a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the following specified trades, industries or uses: * * * (46) Gasoline service station.’ Amended Building Zone Resolution, § 4; see New York Code of Ordinances, Appendix B.

The Board of Standards and Appeals is empowered in a specific case to vary any provision of the zoning resolution, when the variation is in harmony with the general purpose and intent to secure the public health, safety, and general welfare, and does substantial justice, and the case is one ‘where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution.’ Amended Building Zone Resolution, § 21. Pursuant to the power so conferred in a case of unnecessary hardship, the board, on November 8, 1933, granted to the intervener respondent permission to convert its property into a gasoline service station. This action was reviewed by certiorari (Charter of the City of New York, § 719-a; Laws 1901, c. 466, added by Laws 1916, c. 503, § 6, as amended by Loc. Laws 1925, city of New York, No. 13, § 6) upon the petition of the appellants, owners of properties in the neighborhood. The decision of the board was confirmed at Special Term. The order of confirmation has been affirmed by the Appellate Division. We allowed this appeal so that we might review the question whether the finding of unnecessary hardship has any support in the record.

Conformably to the requirement that ‘the hardship and its occasion must be exhibited fully and at large’ (People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280, 290, 155 N. E. 575, 578; Charter of the City of New York, § 719-a), the return of the board includes its proceedings, and sets forth the following facts to show the grounds of its decision:

‘1. That the particular locality, 110th Street and 5th Avenue, has, at the present day, a gasoline service station on the northeast corner, a gasoline service station on the southeast corner, the applicant's corner on the northwest corner [being] at present occupied by a moving picture theatre, and on the southwest corner Central Park.

‘2. That the inspection further disclosed the fact that no gasoline service station existed on the west side of 5th Avenue from Harlem down to Lafayette Street. That as a result of that condition south-bound traffic in order to obtain gasoline along such thoroughfare necessarily caused traffic congestion by vehicles being compelled to make a complete round-about turn in order to cross over to the east side of the thoroughfare where gasoline stations were located. The Board of Standards and Appeals found that a gasoline service station located on the premises of the applicant would, under such conditions, fill a public need by obviating the dangers of such traffic congestion caused by the crossing of vehicles from the west side to the east side.

‘3. That the hearing further disclosed the fact that the applicant was suffering real hardship within the meaning and purview of Section 21 of the zoning restrictions. That the use for conforming purposes of that particular locality would not only cause failure to bring a proper return on the investment of the applicant, but would actually amount to a weekly loss of from $200 to $300. In other words, if compelled to use the premises for conforming purposes, the applicant clearly proved to the Board of Standards and Appeals that such use would be tantamount to confiscation.

‘4. That the neighborhood in question, which at one time had been of a substantial residence and business character, had deteriorated within the past fifteen years. The Board of Standards and Appeals was fully satisfied that the construction of an apartment house on such premises would not rent for a sufficient amount to bring any return to the applicant due to the character of the neighborhood at the present day.’

Little need be said respecting the first or the second reason assigned by the board for its action. The nearby gasoline service stations were existent when such a use of premises in a business district was prescribed in 1925. The...