Clark v. Board of Zoning Appeals of the Hempstead

Desmond, J.

This proceeding was brought, under article 78 of the Civil Practice Act, to review a determination by respondent board of zoning appeals of the town of Hempstead, Nassau County, by which determination the board had granted to intervener-respondent Barnes, a variance of the town zoning ordinance, so as to permit Barnes to erect, on a lot owned by him in a “ B Residence District,” a building to be used as a combined residence and funeral home. Petitioners-appellants ' are a few of the more than two hundred nearby residents who objected, before the board, to the application for this variance. Petitioners were defeated in the courts below, but we granted them leave to come here.

We hold that the board’s action in authorizing this variance was without legal basis. The premises of intervener-respondent, as to which the variance was granted, is a vacant lot, 100 feet wide, on the west side of Westminster Road, in a section of the town of Hempstead known as Cathedral Gardens. When intervener-respondent bought that lot, in 1945, it was, and for some years had been, in a ‘ ‘ B Residence District ‘ ‘ under the town building zone ordinance. In such B residence zones, the permitted uses, under the ordinance, are: single residences, clubhouses, schools, churches, professional offices in dwellings, and some others. A funeral home, or undertaker’s establishment, is not such a lawful use. Nevertheless, intervener Barnes purchased the lot, then applied for a variance. We could end this opinion at this point by saying that one who thus knowingly acquires land for a prohibited use, cannot thereafter have a variance on the ground of “ special hardship ” (Matter of Henry Steers, Inc., v. Rembaugh, 259 App. Div. 908, 909, affd. 284 N. Y. 621). But beyond that, we hold that the proof here made out, under applicable rules of law, no case for a variance.

At the hearing before the zoning board of appeals, intervener called witnesses to show that, about 260 feet south of his property, Westminster Road, on which his lot fronts, intersects the wide, much-traveled Hempstead Turnpike, that the lands along the turnpike are zoned for business, that on the corner lots at that Westminster-Hempstead intersection there are two gas stations, that the parcels nearest to intervener’s, on the west side of Westminster Road, are both used for physicians’ homes and offices, and that, just opposite to Barnes’ lot on Westminster Road, the frontage, for 600 feet north from the gas stations, is owned by a church corporation, on it being a church, a rectory, and (erected after the hearing) a parish school. All of these are, of course, specifically permitted uses, under the zoning ordinance, and there are no unauthorized uses anywhere in the vicinity. A real estate broker called by intervener testified, before the board, that intervener’s parcel could not yield a reasonable profit if used only for purposes allowed under the ordinance. However, it is clear that the only basis for that conclusion was the witness’ opinion that no one would be likely to buy that lot as the site for a fine residence, and it was not claimed that any effort had been made to sell the premises for any of the authorized uses. There was dispute, in the testimony heard by the board, as to whether the presence of a funeral parlor would depreciate values in the neighborhood. It was brought out, also, at the hearing, that intervener was then conducting his funeral establishment in a store around the corner on Hempstead. Turnpike, but wished to move his business onto Westminster Road.

The proof just above summarized was insufficient for a variance. Section 267 of the Town Law empowers boards of appeals to vary the application of town zoning ordinances (subd. 5) “ Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances ’ ’. But, as was recently held in Matter of Hickox v. Griffin (298 N. Y. 365, 370-371): “ There must at least be proof that a particular property suffers a singular disadvantage through the operation of a zoning regulation before a variance thereof can be allowed on the ground of ‘ unnecessary hardship ’ ”. Most frequently cited for that proposition is Matter of Otto v. Steinhilber (282 N. Y. 71, 76) where it is written that, before the board may vote a variance, there must be shown, among other things, “ that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself ”. The board, being an administrative and not a legislative body, may not review or amend the legislatively enacted rules as to uses, or amend the ordinance under the guise of a variance (Dowsey v. Village of Kensington, 257 N. Y. 221, 227), or determine that the ordinance itself is arbitrary or unreasonable (Matter of Otto v. Steinhilber, supra). If there be a hardship, which, like the alleged hardship here, is common to the whole neighborhood, the remedy is to seek a change in the zoning ordinance itself (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 233; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347). Nothing less than a showing of hardship special and peculiar to the applicant’s property will empower the board to allow a variance (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270, appeal dismissed 296 U. S. 537; Matter of Levy v. Board of Standards & Appeals, supra; People ex rel. Arverne Bay Constr. Co. v. Murdock, 247 App. Div. 889, affd. 271 N. Y. 631; Matter of Halpert v. Murdock, 249 App. Div. 777, affd. 274 N. Y. 523; Matter of Otto v. Steinhilber, supra; Matter of Hickox v. Griffin, supra). The substance of all these holdings is that no administrative body may destroy the general scheme of a zoning law by granting special exemption from hardships common to all.

The orders below should be reversed and the determination of the zoning board of appeals annulled, with costs in all courts.