26 N.E.2d 952 | NY | 1940
The Hudson-Harlem Valley Title and Mortgage Company is the owner of certain premises situate on the southwesterly corner of King street and Greeley avenue in Chappaqua, town of New Castle, Westchester county, with a frontage of 65 feet on Greeley avenue and 31.35 feet on King street. Under the zoning ordinance of the town of New Castle the property is located in the business "B" district. The ordinance requires, for any building, a setback of six feet on King street and ten feet on Greeley avenue.
Application was made to the town building inspector for permission to erect a building fronting on King street twenty-five feet in width according to plans and specifications attached to the application. A building of that width would permit of a setback of only six feet from Greeley avenue. The permit was refused. Thereupon, on September 19, 1937, the owner appealed to the zoning board of appeals of the town for a four-foot variance of the ordinance on the ground of unnecessary hardship and practical difficulty. It was alleged that, if the ordinance was enforced according to its terms, the owner would be deprived of the use of one-third of its property in any event, but, in fact and under the conditions obtaining, would be deprived of the entire use of its property since it was unable to lease a building twenty-one feet in width. After hearings, at which the petitioner had a full and fair opportunity to *403 present all of its evidence, and oral testimony had been received as well as documentary evidence and full consideration given by the board, a resolution was unanimously passed on December 6, 1937, upholding the decision of the building inspector and denying the variance on the ground that the setback requirements had been enforced on adjoining property and that the petitioner had been unable to show any unnecessary hardship or practical difficulty arising from the enforcement of the ordinance.
In accordance with and under the provisions of section
The authority for the proceedings before the Special Term is found in section
The purpose of that section, so far as it has been referred to, is to permit a review of the determination of the zoning board of appeals. It is specifically provided that testimony may be taken before the Special Term. It is, nevertheless, provided that the testimony so taken on the proceedings before the Special Term shall constitute only a part of the proceedings upon which the determination of the court shall be made. All proceedings before the zoning board of appeals still remained a necessary part of the record upon which the review of the proceedings of the board was to be had. Neither expressly nor by necessary implication may the Special Term hear, try and determine the issue de novo without regard to the proceedings had, testimony taken, or decision of the board of appeals.
Section 719-a of the Greater New York Charter (Laws of 1901, ch. 466, as amd.), in effect during the time of the proceedings in People ex rel. St. Albans-Springfield Corp. v. Connell
(
It is urged that article 78 of the Civil Practice Act, by implication, at least, repealed section
The referee found "that the proceedings before the board of appeals were regular and all parties received due and proper notice." There was adequate evidence before the board of appeals upon which it could exercise its judgment and make its determination that the enforcement of the ordinance imposed no unnecessary hardship or practical difficulty. There was no abuse of exercise of discretion; its decision was not arbitrary or capricious or contrary to law. The evidence before the board was conflicting. Evidence of a more extensive character was introduced before the official referee. Nevertheless, it all went to the same question as that before the board and presented a fair question of fact. There having been adequate opportunity for the petitioner to present all of its evidence at the hearing before the board and a fair question of fact having been presented upon which the discretion of the board was exercised, it was error for the Special Term to substitute its judgment for that of the board (Matter of Rubel Corp. v. Murdock, supra).
The order appealed from should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, SEARS, LEWIS and CONWAY, JJ., concur.
Order affirmed. *407