129 Misc. 676 | N.Y. Sup. Ct. | 1927
This is a review by certiorari- of a determination of the board of standards and appeals which reversed an order of the tenement house commissioner and granted the appeal of the defendant J. P. C. Realty Corporation, the owner of the northeast corner of East Eighteenth street and Cortelyou road, so as to permit the erection upon such corner of an apartment house which would not meet the requirements established for E area districts, but which would be permissible only in a C area district, where there are no such requirements. The property in question is located in a district which lies between Beverly road on the north and Cortelyou road on the south. Its westerly boundary is midway between Coney Island avenue and Stratford road, and its easterly boundary is 100 feet east of East Nineteenth street. Immediately adjoining this district on the north is an F district,
As a matter of fact no testimony seems to have been taken at the hearing conducted by the board of standards and appeals which would indicate the practical difficulties or unnecessary hardships of which the owner complains. On the contrary, the record of the so-called hearing reads more like the transcript of a debate in which the chairman of the board and the representative of the property owner held the affirmative on the proposition that the district involved in the proceeding was incorrectly zoned in the first instance by the board of estimate and apportionment. For instance, Mr. Doyle, who represented the property owner in contending that the Zoning Resolution is not correct,, said: “ The Board of Estimate and Apportionment, or those who have to do with the layout of area districts, have created an unnatural condition in this street. It is unnatural' if the area district counts for anything * * * so that the object of taking these two blocks out, penalizing the owners of these two blocks, to my mind is not sound * * *. And so this zoning is a selfish matter and the Board of Estimate did create a condition that is discriminating. ’ ’
And on the same subject the chairman of the board said: “ I still
It will thus be seen that the board of standards and appeals was not concerned with granting relief in a “ specific case,” but being in disagreement with the action of the board of estimate and apportionment, it attempted to amend the Building Zone Resolution. It has, however, no such power, and, as the court said in Matter of Stevens v. Clarice (216 App. Div. 351, 354): “ If their action in the matter was lawful, there is nothing to prevent them from nullifying the entire Zoning Ordinance as a matter of favor to an applicant.” Notwithstanding the statement that the locality was placed in a restricted zone as the result of the efforts of an objector in this proceeding when he was a member of the board of estimate and apportionment, the fact remains that the locality in question was highly restricted and devoted exclusively to residential purposes for many years before the Building Zone Resolution was adopted. In reply to the assertion that the action of the board of estimate and apportionment was unduly influenced by one of its members, Mr. Pounds, who was formerly president of the borough of Brooklyn and a member of the board of estimate and apportionment, said: “ I purchased this property between Beverly Road and Cortelyou Road, I think, in June, 1898. We laid out this section and made it a high class restricted neighborhood. It was built up at the same time that Dean Alvord developed Prospect Park South. Mr. Alvord and myself collaborated on what has been the most complete private restrictions on property in our day. Later on I developed Ditmars Park. I built my home in 1898. In 1899 I moved in and lived there continuously ever since, lived there and brought up my family there. Several of those who went in at that time as pioneers (at that time it was very rough) are living there to-day. Now, a few of us original people sought to find a place where we could bring up our families under detached house conditions, with as much freedom and light and air as it was possible to obtain, and the restrictions were placed with that in mind. It was built up within a few years, and, as I say, several who went in originally with no idea of speculation, with no idea of profit * * *.”
At this point in the record Mr. Pounds was interrupted by the chairman of the board, but so much of his statement as is quoted is sufficient to show the character of the locality in which the board of standards and appeals authorized the erection of a multi-family house which would be built in accordance with specifications which the present building zone restrictions do not warrant. It is clear that the preservation of the E districts, where detached