5 Misc. 2d 20 | N.Y. Sup. Ct. | 1957
This is an application under article 78 of the Civil Practice Act for review of the proceedings before the respondent Board of Appeals of the City of Rochester in which the board granted a variance to Loblaw Inc., intervenorrespondent, to erect a supermarket with parking areas in an
A description of the property involved is essential for a discussion of the problem. It is difficult to describe the property without visual reference to a map. For the most part it is located at the rear of lots at the northwest corner of Winton Road North and Merchants Road. Beginning at a point about 182 feet west of the intersection, the property has a frontage on Merchants Road of about 145 feet, and extends westerly behind (north of) three lots next west of the said frontage. Beginning at a point about 460 feet north of the intersection, the property has a frontage on Winton Road North of about 265 feet. The north 200 feet of such frontage is quite shallow, varying from about 50 feet to 125 feet in depth. These frontages afford entrances to intervenor’s property to the rear of lots on the west side of Winton Road North and north of the three lots next west of intervenor’s Merchants Road frontage. The west line of intervenor’s property is in line with the west line of the most westerly of said three Merchants Road lots and is part of the east line of a dedicated but unopened street, designated McDonald Street, running northerly from Merchants Road, by intervenor’s property, to a proposed Royleston Road. One of petitioners is in the process of opening said Royleston Road in connection with the proposed construction of many homes adjacent to the subject property. Royleston Road as laid out intersects with Winton Road North, adjacent to the north line of intervenor’s frontag’e thereon, and at the other end it intersects with Merchants Road at a point about 11 lots west of unopened McDonald Street.
Intervenor has options to buy said property on the east side of McDonald Street from persons who joined in the petition for variance, and said owners also own a block of land of almost equal size on the west side of McDonald Street. The north side of Merchants Road to a depth of about 120 feet is zoned “ D ” commercial. All of the above-described property, except the frontage on Merchants Road, is in an area zoned 11E ” residential.
Since an application for variance may be renewed on a new petition, it may be well for the court to make some additional observations relating to petitioners’ second objection, to wit, that the return does not reveal evidence before the board sufficient to support the findings, as required by law. (See Matter of Hopkins v. Board of Appeals, 178 Misc. 186.)
At the outset it is noted that the application for variance was not made under section 91-37 of the Planning and Zoning Ordinance of Rochester (see Matter of Vella v. Zoning Bd. of Appeals, 206 Misc. 941), but was made under section 91-38 thereof, where practical difficulties or unnecessary hardship are the grounds for variance. Although a small segment of the premises is within a “ D ” commercial district, this is not a case in which the board may grant an extension from one district into a more restricted district, as was done in Matter of Magde v. Crowley (200 Misc. 109). (And see Matter of Hickox v.
Findings of fact, numbered 9 through 12, made by the Board of Appeals contain principally conclusions of law, in the language of the decisions under the “unnecessary hardship” provisions. (See Matter of Otto v. Steinhilber, 282 N. Y. 71, 76.) The only real findings of fact of consequence are (1) that the owners could not sell the property, (2) that they could not use it otherwise than as proposed, because it is landlocked, and (3) that the proposed use will not alter the essential character of the area, because "it is largely commercial now. These findings must necessarily relate to that part of the subject premises not owned by the city.
The evidence is that the owners never advertised their property for sale. There is no factual basis to support the finding that the owners cannot sell the property for residential purposes. The evidence is all the other way. Petitioners are about to develop the immediately adjoining area for residences, and no reason is advanced why this property may not be similarly used. (Matter of Taxpayers’ Assn. v. Board of Appeals, 301 N. Y. 215, supra; Matter of Ryback v. Murdock, 1 A D 2d 132.) In the Taxpayers’ Assn, case (supra) the court said at page 218; ‘ ‘ There was no proof that the property could not be adapted to conforming uses. No attempt was made to sell or utilize the property for residential purposes, although it was as suitable for residential purposes as other land in the immediate vicinity upon which a number of homes had recently been constructed. Moreover, the record does not show that the property suffers a unique or singular disadvantage, not common to other property in the district, through the operation of the zoning ordinance. Here, the hardship, if any, is general and characteristic of the entire area, and the remedy lies in a revision of the zoning ordinance through legislative action, not by the granting of a variance to a single property owner.”
The findings that the property is landlocked is equally without factual basis. The whole west side of it, over 300 feet, fronts
In granting the variance the Board of Appeals has undertaken in effect to amend the zoning ordinance and change the character of the area involved (People ex rel. Fordham Manor Ref. Church v. Walsh, supra, p. 289), and that it may not do. (Matter of Taxpayers’ Assn. v. Board of Appeals, 301 N. Y. 215, 218, supra; Matter of Levy v. Board of Stds. & Appeals, 267 N. Y. 347, 353). In this connection it is noteworthy that one of the maps in Exhibit 17, to wit, the one dated May 3, 1956, pictures a ‘ ‘ Future Stores ” development on the west side of McDonald Street, next west of where intervenor proposes to erect its supermarket — all now in the “E” residential district. This accentuates the point that whether this area should be made a commercial district is a legislative matter and not within the province of the Board of Appeals.
The decision of the Board of Appeals granting the variance is, therefore, annulled and vacated, and the application therefor is denied.
Submit order accordingly.