124 Misc. 886 | N.Y. Sup. Ct. | 1924
The petitioner is not in a position to raise the question of his right to have his particular apartment house excepted from the zoning rules. No application was made for such an exception. The action of the superintendent of city planning and the advisory board anticipating such an application was ineffectual. The petitioner had the right to be heard on the question of the exception and has not waived his right. There would be no record to review without such hearing. His position is the same as if no application for an exception had been made. On this assumption he is not in a position to review the premature action of the superintendent of city planning and the advisory board. The procedure of a hearing is one to protect the applicant as well as the city. The application for an alternative order of mandamus, therefore, must be passed on as though no action had been taken by the superintendent of city planning and the advisory board. The petitioner, therefore, is merely in a position to'- question the zoning legislation so far as it prohibits the erection of apartment houses generally in the portion of East avenue in question. There is no claim that the petitioner owned his property prior to the passage of the rules prohibiting the erection of apartment houses and it must be assumed that he was not such owner. Nor is there any claim that any of the uses of other property referred to in the petition were excepted from the restrictions and it must be assumed that
The superintendent of city planning is not a proper party defendant, no application having been made to him for an exception to the zoning restrictions and the application is denied as to the superintendent of buildings on the ground that the statutes and rules applicable here are constitutional and that no consent had been obtained from the superintendent of city planning and the advisory board. Ten dollars costs.