120 Misc. 355 | N.Y. Sup. Ct. | 1923
After the superintendent of buildings had refused a permit for the erection or extension of a garage to accommodate more than five automobiles and the interveners had appealed to the board of standards and appeals, a committee of that board was appointed for the purpose of examining the premises in question. This committee reported that the appeal should not be granted. Thereafter, and on the 19th day of August, 1919, a resolution was adopted by a vote of four to three affirming the decision of the superintendent of buildings in denying a permit to the interveners. The interveners did not have the consents of the owners of eighty per cent of the frontage within the district affected by the proposed garage. On the 30th day of September, 1919, the board of appeals, upon the application of the interveners, without any reason disclosed by its records, granted permission to reopen the proceeding.
A notice was thereafter served upon the relator. It again appeared and objected to proceeding on various grounds, one of which was that there was no power in the board to reopen the proceeding after it had been closed by a denial of the application.
The matter was, however, further considered and on the 29th day of June, 1920, a resolution was passed making a variation in the application of the “ use district regulations of the building zone resolution ” and granting the application. Upon a petition setting forth all the facts a writ was issued out of this court, requiring the board of appeals to certify its proceedings to this court for review.' Thereafter the interveners applied for and received permission to intervene in this proceeding.
The premises in question are known as 157-159 Rogers avenue and are located between Sterling place and St. Johns place. The
The relator here moves for a final order sustaining the writ of certiorari and the respondents for a final order dismissing the writ.
It appears from the return that after the board granted the application it reversed the ruling of the superintendent of buildings under the discretionary powers vested in it under section 7a and section 20 of the zoning resolution.
These motions present two questions: (1) Had the board power to open and rehear the application after it had been formally denied; and (2) had the board the power under the zoning resolution, to vary the provisions thereof, in view of the situation existing here?
On the 13th day of May, 1919, the board of standards and appeals amended section 2 of article 4 of its rules, providing for the final disposition of a case. As then amended article 4, subdivision 2a, of the rules provides: “ The final disposition of any application or appeal before the Board of Appeals, shall be in the form of a resolution either reversing or modifying the order, requirement, decision or determination appealed from and granting the application or appeal or affirming the order and denying the application on appeal.” By that rule the board provided a method for the final disposition or termination of appeals pending before it.
The committee of inspection recommended that the appeal be denied for the reason that the property in question “ is situated directly opposite an extension of the Swedish Hospital and that a garage should not be permitted opposite to a ward for sick and injured people; this fact justifies this Board in withholding its approval.” But presumably the board was not led to denying the application solely for the reasons set forth in the report of the committee of inspection, as the resolution denying the application stated “ that applicant failed to prove to the satisfaction of the board that the premises in question had been used for a garage for more than five motor vehicles on and previous to July 25, 1916.”
The record before the board does not disclose any reason for reopening the proceeding, although the return seems to indicate that a reconsideration was ordered because of the use to which the neighboring property, as well as that of the property in question, had been put for some time prior to the adoption of the zoning resolution.
The question of the right of the board of appeals to rehear an application after it had once been denied is squarely presented upon these applications. This board is a quasi judicial body.
The board of appeals can in no sense act other than in a quasi judicial capacity. It does not perform á single administrative or legislative act. As its' name implies it' is an appellate tribunal. It passes upon matters formally brought to its attention much the same as courts. It hears evidence and argument and decides controversies as the evidence dictates. It cannot act without some evidence. The record here shows that it denied this application for good reason and upon sufficient evidence to sustain its conclusion. There was not a scintilla of evidence presented to the board to warrant it in changing its final disposition of this proceeding. Presumably it had thoroughly considered the matters before it. A committee of its members had viewed the premises and they had heard the parties in favor of and in opposition to the
But the board contends that it had power, not only to reopen the proceeding, but to grant the application under the provisions of section 7a and section 20 of the zoning resolution. Section 7 provides that the board may vary the application of the " use district regulations ” in permitting the extension of an existing building and the existing use thereof, upon the lot occupied by the building at the time of the passage of the resolution. There is no proof in this record to warrant the assumption that the premises in question were, prior to the passage of the zoning resolution, used for a business similar to that to which the interveners now propose to put the premises. If there was sufficient in the record to indicate that the premises were used as a garage for a limited number of cars used for hire, the operation of the garage for more than five automobiles upon the plot owned or controlled by the interveners would not be an extension of the business now or formerly conducted on the premises. There is a difference between operating a private garage for the hiring of motor vehicles and conducting a public garage for more than five motor cars. Section 20 of the zoning resolution is usually the final refuge of the board when it wants to do something for which there is no authority in law. It is claimed here that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of the zoning resolution. Such difficulties or hardships are not disclosed. They are not
Facts and circumstances sufficient to justify such variation should be shown in the record if the board intends to rely upon the provisions of section 20. None such is shown- here. The motion of the relator is, therefore, granted and that of the respondents denied.
Ordered accordingly.