(dissenting). I vote for affirmance. To reverse the action of the board of zoning appeals and annul its determination is to say that the granting of the variance was arbitrary and capricious and constituted an abuse of discretion. This we may not do on the record before us. It is axiomatic and no longer open to doubt that where there is evidence to constitute a reasonable basis for the determination the court has no right to interfere and substitute its judgment for that of the administrative board charged with the duty of making a determination (People ex rel. Hudson-Harlem Valley Tit. & Mtge. Co. v. Walker, 282 N. Y. 400; Matter of Rubel Corp. v. Murdock, 255 App. Div. 224, affd. 280 N. Y. 839; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Nectow v. City of Cambridge, 277 U. S. 183; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73). With this I take it there is no quarrel. We should note also that no question is raised here as to *92the validity of the ordinance or that the board has the power to vary or modify its application under appropriate circumstances. Our differences arise in testing the proof adduced in light of certain elemental prerequisites deemed essential, such as proof that the land in question cannot yield a reasonable return if used only for the allowable purpose and that the required variance will not alter the essential character of the locality: here it is conceded that there is such proof. It is in consideration of the sufficiency of proof as to the third element that our difference develops which calls for a showing that the plight of the owner is due to unique circumstances and not to a general condition in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself (Matter of Otto v. Steinhilber, 282 N. Y. 71), a majority being of the view that the proof was insufficient to warrant granting a variance in the proper exercise of discretionary authority (Town Law, § 267) as the hardship, if any, was a common burden which would not be deemed unique as to this property (see Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Ernst v. Board of Appeals, 298 N. Y. 831). For convenience of discussion, I refer to certain undisputed facts:
The property upon which Mr. Barnes desires to erect and conduct a funeral parlor is situated in a residential “ B ” zone (the variances sought in both the Otto and Hickox cases, supra, were for nonconforming uses in an “ A ” zone). This parlor would be located within 300 feet of the 6-lane, highly trafficked, Hempstead Turnpike and within 150 feet of a business zone. The lot to the west of the Barnes property is vacant and its owner is not objecting. Dr. McKenna immediately to the north does not .object. Dr. Cherwin across Regent Place to the south is the only adjacent owner objecting. The object-ants Liebl who represent the property to the north of Dr. McKenna and on the corner of College Place have since sold the property to the church; the appeal should be dismissed as to them as moot. The church, rectory and parochial school directly across the street — concededly the school has been built since this variance was granted at which time that land was devoted to a public parking lot, a nonconforming use — are not averse to the Barnes proposal through its spokesman, Father Smith. In summary then, this is the physical situation *93of this particular piece of property: it is flanked on both sides by physicians’ offices and virtually surrounded — at least to the east and north — by institutional buildings. To the south is a congested business community with two gas stations, one on each corner nearest the subject property, uses which probably do more than any other to depress residential realty values. Under the existing zoning ordinance (Building Zone Ordinance of Town of Hempstead, art. 5) there is no practical conforming use to which Mr. Barnes could devote this property.
Fully aware of the elemental requirements laid down in the Otto case (supra), counsel for the applicant was very careful to adduce proof through a real estate expert to meet those tests. Material and pertinent to the sound or ‘ ‘ unique ’ ’ requirement is the following: “ Q. In your opinion, is this situation with respect to Mr. Barnes’ property unique or is it a general condition in the neighborhood? A. No, I would say it would be unique. First it is hard to classify it in a Class A when you are only 150 feet from the Business Zone, a parking field and a contemplated school and a church, and put it in the same category as you would when you get to the first block north where you are going in a high class residential property.
“ Q. In other words, in all of this Cathedral Gardens section is there any other parcel that you know of that shows the same situation, being opposite a church, a parking field, a proposed parochial school, the professional offices on both sides, and the close proximity within 150 feet of gas stations and a business area? A. No, I don’t know of anything. In fact, I would say that this is almost a perfect set up for this. One of the most important elements, I would think, would enter into this, would be the fact that being used as an undertaking establishment where the majority of cases are taken to the church, and where, if he operated elsewhere, he would have to be the same distance to the church, he would eliminate a lot of congestion, which, I believe, is one of the hazardous things.”
In addition to this testimony the record indicates that the board personally viewed the premises and surrounding neighborhood. Taken as a whole then the record contains proof substantial in character and quality, which by the standards usually applied in administrative proceedings is more than sufficient to sustain the board’s implicit finding that the plight *94of the owner is due to unique circumstances and not to a general condition in the neighborhood and this view is not contrary to the cited authorities denying relief. . In those cases — Otto, Ernst and Hickox (supra) we had no evidence of any sort and no such compelling physical circumstances as the proof here demonstrates. In the Otto case it was emphasized that a variance was not warranted upon that record. There the applicant sought a variance to erect a roller skating rink — a commercial use — upon property extending 500 to 600 feet into a residential “ A ” zone. There it was held that the record “ does not set forth any proof of the three elements constituting unnecessary hardship within the meaning of the zoning laws.” (P. 79, emphasis supplied.) I take this as a clear indication that the three tests while separately numbered are part of the same whole, the pronouncement of a standard by which the permissible but nevertheless existing discretion of the zoning board is to be guided. In the Long Island University case (Matter of Hickox v. Griffin, supra, p. 371) “ Not an item of proof * * * appears in this record ’ ’ in support of the variance there sought under the singular disadvantage test of the Otto case. Here there is no claim that the ordinance is unreasonable but where such is shown due to the imposition of restrictions which .would limit the property to a use for which it is not adapted, we have ruled that “ In such case the owner of the property cannot be required to ask as a special privilege for a variation j of the restriction ” (Dowsey v. Village of Kensington, 257 N. Y. 221, 231). The converse should be equally true. This is not a case where a claim is made that the ordinance is in general invalid and unreasonable. (Rockdale Constr. Corp. v. Incorporated Vil. of Cedarhurst, 300 N. Y. 642.) A property-owner should not be required to find his relief by a change in the statute. The framers of the zoning ordinance undoubtedly recognized that a general ordinance could not always be successfully applied according to the strict letter of its terms. To meet the unanticipated exceptional situation, the board of zoning appeals is given authority in a .reasonable exercise of discretion to afford relief (Village Law, § 179, subd. b; Town Law, § 267; General City Law, § 81). In Matter of Ernst v. Board of Appeals (supra) we declined to substitute our discretion for that of the board. I therefore feel, as did Judge (then Justice) Froessel *95at Special Term, that “ notwithstanding the fact that a different result might well have been arrived at, this Court has no right to interfere, and to substitute its judgment for that of the administrative officers ”, especially when their determination finds support in the record.
The judgment appealed from should he affirmed.
Loughran, Ch. J., Lewis and Fuld, JJ., concur with Desmond, J.; Dye, J., dissents in opinion in which Conway, J., concurs; Froessel, J., taking no part.
Orders reversed, etc. [See 301 N. Y. 681.]