Dunne v. Walsh

Sherman, J. Petitioner, the owner of premises in the borough of The Bronx on the westerly side of Webster avenue south of One Hundred and Ninety-seventh street, applied to the superintendent of buildings for permission to erect on her land a public garage. That application was denied, the land being located in a district zoned for business in which that use was prohibited by the provisions of the Building Zone Resolution. An appeal was taken to the board of standards and appeals and the determination of the superintendent of buildings was upheld after a full hearing. Thereupon petitioner asked an order of certiorari and the learned Special Term directed that further testimony be taken before that court. This was done and after such hearing the court sustained the certiorari order, annulled the determination of the board of standards and appeals and directed the superintendent of buildings of the borough of The Bronx to issue to petitioner a permit for the erection of the garage. The application before the board of standards and appeals was for a variance under section 21, article 5, of the Building Zone Resolution, which grants to the board of standards and appeals the right to vary the provisions of the resolution where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of the resolution. The block in which petitioner’s realty is located is a long one extending from One Hundred and Ninety-fifth street to One Hundred and Ninety-seventh street, containing no garages. But the frontage embraces stores, a theatre and an apartment house. The elevated railway structure is located on Webster avenue in front of the premises; and the easterly side of the avenue is used for a coal and wood yard, extending from the easterly fine of the avenue to the railroad tracks of the New York Central railroad. Decatur avenue runs parallel with Webster and contains apartment houses abutting in the rear on the petitioner’s premises, so that if the proposed garage were built, its rear wall would be contiguous to the premises fronting on Decatur avenue. Upon the hearing at Special Term, very little if any new evidence [74] was introduced to supplement the facts upon which the board of standards and appeals acted, and such evidence as was introduced, designed to show that petitioner’s property could best be improved by the erection of a garage, instead of an apartment house, stores or warehouse, was contradicted by several witnesses called on behalf of the intervenors, some of whom, being property owners in the immediate neighborhood, protested against the issuance of the building permit sought by petitioner and the erection of a garage, as injurious to their realty which is devoted to uses authorized by the resolution. The board of standards and appeals objected to the taking of any evidence at Special Term, asserting that there had been a full hearing before said board, and that, no question having been raised as to the power of that board to entertain and determine the matter in controversy, the Special Term was without power to open the proceeding for further evidence, since that would be in effect the usurpation by the court of the province of the board of standards and appeals, for the additional evidence could be of no service except as a basis for the exercise by the court of the discretion confided to the board of standards and appeals. Petitioner asserts that because of the presence of the elevated railway structure in front of these premises and the railroad tracks opposite them, and because of the existence of garages in blocks to the north and south of the block, there should be no objection to the relief sought, for a garage would be the best kind of an improvement and the most profitable one to be made upon her land. We must not, however, lose sight of the fact that the court may not legislate. The area having been restricted for business by the municipality, it is not the function of the court in anywise to inquire into the wisdom of, or to alter, that determination. Nor may the court overrule the exercise by the board of standards and appeals of its powers in that field unless there be clear abuse of discretion or the assumption of a power beyond the scope defined by law. Such was the view indicated by the Court of Appeals in Matter of Goldenberg v. Walsh (242 N. Y. 576), where the decision of the Appellate Division was reversed on the dissenting opinion of Mr. Justice McAvoy (215 App. Div. 396, 400). There it was sought to erect a garage on the west side of Webster avenue in the block south of One Hundred and Ninety-fifth street, and the board of standards and appeals denied the appeal, which was based upon alleged hardship. The physical conditions of that neighborhood were substantially like those which obtain in the neighborhood of petitioner’s premises. In addition, when the application was made [75] by Goldenberg, two garages existed in the block in which his premises were located. The determination of the board of standards and appeals having been upheld in that case, we are bound to hold that there is no evidence in the record here which would indicate that the board of standards and appeals abused their discretion in denying the petitioner’s application. Furthermore, we are of the opinion that the situation as presented to the Special Term did not warrant the taking of further testimony under the provisions of section 719-a of the Greater New York Charter (added by Laws of 1916, chap. 503, as amd. by N. Y. Local Laws of 1925, No. 13). In People ex rel. St. Albans-Springfield Corporation v. Connell (257 N. Y. 73) the Court of Appeals laid down the rule (p. 80): “A Special Term of the Supreme Court having this rather wide power to supplement the record is not supposed to exercise it as though it were the Board of Standards and Appeals. The power is to be used cautiously, with extreme care where there appears to be a probability that the effect of the additional testimony, if it is received, will be to show the ruling complained of to be wrong; and when the whole case comes to be decided upon the new testimony and the old, the court, even then, is not to put itself in the position of the Board, is not to substitute its own discretion for that of the administrative agency established by the statute in a situation where the exercise of discretion is possible. The necessity for a variance is to be determined under section 21 of the Amended Building Zone Resolution by the Board of Standards and Appeals. Its judgment should be final unless it clearly appears to be arbitrary or contrary to the law. The powers of the Board, as outlined in section 719, are very largely administrative, including much that has to do with the zoning situation. The courts must not trespass upon this administrative work, but confine their review to correcting legal errors. (Zahn v. Board of Public Works, 195 Cal. 497; Sundlun v. Zoning Board of Pawtucket, 50 R. I. 108.) ” The order appealed from should be reversed, with ten dollars costs and disbursements, the certiorari proceedings dismissed and the determination of the board of standards and appeals reinstated and confirmed, with fifty dollars costs. Finch, P. J., Merrell and McAvoy, JJ., concur; Martin, J., dissents.