141 Misc. 916 | N.Y. Sup. Ct. | 1931
By certiorari under section 349-a of the Town Law (added by Laws of 1926, chap. 714), the petitioner seeks a review of a determination of the board of appeals of the town of Ramapo. Of necessity he must have claimed that there were “ practical difficulties or unnecessary hardships in carrying out the strict letter ” of the building zone ordinance, classifying petitioner’s property as residential. Petitioner desires to use it for an amusement park in which there would be a swimming pool. He is the lessee of the property and has an option to purchase it. In effect he applied to the board for permission to violate the ordinance by using his said property — for not exceeding five
“ c. The Board of Appeals, after notice and hearing, may in a specific case, and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purpose and intent as follows:
* * * if if if if
“ 2. Grant in appropriate cases, temporary permits for not to exceed five years for non conforming uses.” (Italics mine.)
Apparently contrary to the delegation of power (Town Law, § 349-u), the part quoted purports to give to the board authority to allow temporarily in “ appropriate cases ”■— whatever that may mean — violations of the presumptively valid (Matter of Wulfsohn v. Burden, 241 N. Y. 288, 296) ordinance adopted in pursuance of sections 349-o et seq. of the Town Law (added by Laws of 1926, chap. 714).
The authority thus conferred is to do things generally in conformity with the ordinance in order that the “ spirit of the ordinance shall be observed.” Here concededly petitioner sought not an observance of such spirit, but a radical and absolute departure from it. His position is: (1) He has an interest for years in said real estate so classified as residence 0-1, the highest residential class; plus his said option to purchase. (2) He has a right to use and improve his property as permitted by law. (3) Ho desires to improve it by constructing thereon an amusement park with swimming pool — a non-conforming use, i. e., a use which (4) would contravene the building zone ordinance. (5) Mistakenly taking the ordinance at its face, the petitioner, seeking relief from what he contends to be an unreasonable ordinance, requested the board
The order of certiorari is dismissed and the determination of the board of appeals is affirmed (Matter of Dillon, supra), without costs and also without prejudice to petitioner’s remedy by mandamus. Settle final order accordingly, on notice.
See, also, Laws of 1931, chaps. 235, 559.— [Rep.