121 Misc. 631 | N.Y. Sup. Ct. | 1923
The relators seek to build a public garage in an area restricted to business uses and their application has been denied by the respondents constituting the board of appeals. The latter has the right to permit the erection of the contemplated garage if it sees fit to exercise it. The respondents in their return to the writ of certiorari state that their reason for denying the application was “ the best interests of the community ” and to prevent “ the desecration of the community.” The character of the community can be gathered from the character of the improvements now there. On one corner opposite the applicant's site are the car barns of the Coney Island and Brooklyn railroad. On the other corner opposite is a stable, habitually used for about
It will be seen therefrom that the character of the neighborhood is quite well established and while there is a possibility that the remaining unimproved land might be improved by the erection of high class residences, the probability of such an occurrence is so remote that the erection of applicant’s garage could have little or no effect thereon. All the objections filed with the board of appeals are identical in language and were taken before the same notary public and otherwise indicate that they emanated from a common source. The hearing had before the board was the usual cursory proceeding commonly had there with little regard for the real essentials or merits involved in the controversy. Some discussion was indulged in there over the alleged fact that the relator Parry was acting under an option to purchase from the owners and as agent for them. The owners have owned the site in question for many years and the fact that the relator Parry may buy the premises provided he can erect a garage thereon does not appear to the court to have any material bearing upon the issues.
The question, therefore, is whether or not it can be said that the board of appeals in denying the appeal was really acting for the best interests of the community, bearing in mind that the relators are also part of that community as well as the rightful objectors. Can it be said that a neighborhood of this character would suffer a detriment from the erection thereon of a public garage of the character contemplated? It does not seem that any rightful interest of this community has been served by their action, however good their intentions may have been. Much might be done for the benefit of this community, but in view of the fact that all the factories, stables, laundries and car barns are permanently estab
What the board of appeals had decided was whether or not there were any practical difficulties or unnecessary hardship in carrying out the strict letter of the law which would justify it in varying the law. The petition herein fully recites in what respects it is claimed that the action of the board was erroneous, illegal, biased, discriminatory, prejudicial and created undue hardship. The statute (Laws of 1916, chap. 503, § 719a) requires that the return “ must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified.” The return made here wholly fails to satisfy the requirements of the statute. The decision of the board is likewise defective. In this case it does not appear that the board determined the only question it had before it to decide, to wit, whether or not there were practical difficulties or unnecessary hardship in carrying out the strict letter of the law. The determination, therefore, on whatever ground it was made, was illegal within the meaning of the statute. Consequently the matter is before this court on the merits and this court finds that the decision rendered by the board was contrary to the weight of the evidence. The writ is sustained, the determination of the board reversed and the permit applied for will be ordered issued.
Ordered accordingly.