278 A.D. 962 | N.Y. App. Div. | 1951
The building inspector of the Town of Bedford, Westchester County, issued a permit for construction of a building and operation of a commercial sand and gravel pit on land situated within a district designated for residence use under the local zoning ordinance. On appeal to the zoning board of appeals the action of the building inspector was approved. In this proceeding under article 78, to review the determination of the zoning board of appeals and revoke the permit, such determination was affirmed and the petition was dismissed. Order reversed on the law, with $50 costs and disbursements, appellants’ motion for relief granted, the determination of the zoning board of appeals annulled and the permit revoked and cancelled, without prejudice to any application to the board for relief that may be advised under the local zoning ordinance. A commercial sand and gravel pit is not a conforming use in a residence district described in the ordinance (art. IV, § 1). The confusing language of subdivision A of section 16 of article V of the ordinance makes interpretation difficult but not impossible. The section does not provide that the issuance of an excavation permit by the building inspector authorizes either a variance in the use of the land districted for residence or an extension of a nonconforming use. Such functions are assigned to the zoning board of appeals (art. I, § 5). In affirming the building inspector’s determination, the board of appeals acted on its erroneous legal interpretation of the provisions of the ordinance and not in the exercise of its discretion as on an application for a variance or similar relief. For that reason the hearing on appeal from the building inspector’s determination cannot be considered to have been a hearing on an application for a variance or the like. (Cf. Kenny v. Valentine, 276 N. V. 381.) Johnston, Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P. J., concurs in result.