Tenlan Reality Corp. v. Board of Standards & Appeals

Callahan, J.

(dissenting). The court at Special Term upheld the board’s determination on the ground that, even though the court might not itself believe the changes since 1927 to be substantial, the issue was “ whether there was any basis for the exercise of judgment.” It found no adequate ground for denouncing the board’s action as arbitrary, oppressive or unfair and accordingly upheld it. I think that the court below was correct.

It has been said that the power of review in zoning law cases should be exercised cautiously by the court at Special Term and it “is not to substitute its own discretion for that of the admiras*315trative agency established by the statute in a situation where the exercise of discretion is possible.” (People ex rel. St. Albans-S. Corp. v. Connell, 257 N. Y. 73, 80, 81.) The court will not interfere with the discretion of the board, but the return must show a basis for exercise of judgment. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347.)

It is undisputed that in 1927 the board granted a variation of the Amended Building Zone Resolution permitting the erection of a two-story building with business use in the street floor, but providing that there shall be no roof signs on the building. However, a building of only one story was erected and the board now certifies that a roof sign will occupy less space than a second story and should be permitted. The original variance was under the hardship ” section, and the determination of the board has never been reviewed upon certiorari. It must be assumed that the variance granted in 1927 was based on proof of unnecessary hardship, and within the power of the board of standards and appeals. (People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484.) The board having already sanctioned a non-conforming use, it seems to have been the proper procedure to ask that body to alter one of their conditions rather than to have the board of estimate reclassify the neighborhood. In Matter of Reed v. Board of Standards & Appeals (255 N. Y. 126) the point was raised that the board had no jurisdiction to entertain an application because it had previously denied the application upon the same state of facts and that such decision was final, and not subject to review by the board itself. The court said (at p. 133): Whether or not the function of the Board is to decide cases with finality on the same facts once presented for its consideration, if new plans materially change the aspects of the case, a new application may be made and a new determination had. (See Matter of Riker v. Board of Standards & Appeals, 225 App. Div. 570.) ”

In the instant case the unnecessary hardship ” was established in 1927, and under the amendment sought in 1936, new proof of “ unnecessary hardship ” was unnecessary. There was sufficient proof to show that conditions in the neighborhood had changed so as to justify the amendment by the board of standards and appeals of its prior determination in respect to the detail involved herein.

The order appealed from should be affirmed.

Order reversed, with twenty dollars costs and disbursements to the appellants against the intervenor, respondent, the order of certiorari sustained and the determination of the board of standards and appeals annulled.