16 Misc. 2d 1001 | N.Y. Sup. Ct. | 1958
This is an article 78 (Civ. Prac. Act) proceeding brought to review and annul a zoning board determination which granted to the intervenor-respondent a variance to permit the extension partly into a residential district of a proposed modern A&P supermarket building. Said respondent, Silver Distributing Company of New York, Inc. (hereinafter referred to as Silver), has contracted to purchase Lots 1 to 8, Block 134, which front on Riverdale Avenue in the City of Yonkers. Lots 1 to 4 are in a business district in which the proposed building is a permitted use. Lots 5 to 8 are in a residence district restricted against this type of building. Silver proposes to erect the building on Lots 1 to 4 and extending 21 feet onto Lot 5, and the determination of the Zoning Board grants a variance so that the building may be extended the 21 feet into Lot 5.
Under the provisions of the local ordinance, the Zoning Board here unquestionably had the jurisdiction to entertain application for and to grant a variance to permit extension into the residence district of this building, which was to be erected principally on adjoining lots in a business district. It appears that the board, thus having the power to act under the circumstances here, proceeded with the holding of a public hearing, the receiving of affidavits and arguments from interested parties, and the personal inspection of the subject premises and surrounding area. The findings thereafter made ■ by the board and its reasoning thereon tend to support its determination and, therefore, any contention that the determination is arbitrary or capricious is ruled out.
Noted, of course, is the petitioner’s contention that the granting of the variance was contrary to law in that Silver was bound to establish unnecessary hardship and in that its hardship here is self-imposed. In my opinion, however, particularly bearing in mind the provisions of the local ordinance, the establishment of unnecessary or special hardship upon the present property owner was not essential to the obtaining of this type of variance, namely, a variance permitting the extension for a short distance into a residence district of a business building to be lawfully erected in a business district. According to the findings of the board, read as a whole, the situation requiring the variance had to do with the unique character of the particular property, considered together with its surround
Zoning boards are close to the local situation and the presumption is that they act honestly with public welfare in mind. The discretion and judgment of such a board in granting or denying a particular variance, where it has jurisdiction, should be respected by the courts unless clearly arbitrary or capricious. Therefore, under the circumstances here, the petition herein and this proceeding is dismissed.
Settle order on notice. No costs.