Lehrer v. Michaelis

Proceeding by an adjoining property owner pursuant to article 78 of the Civil Practice Act to review a determination of the Board of Zoning Appeals of the Town of Hempstead. The determination granted an owner of property (1) a variance to permit the maintenance of a “ear wash” establishment on that part of the property which is located in a business district, and (2) a variance for an accessory use on that part of the property which is located in a residence district. The Special Term granted the petition to the extent of annulling the determination concerning the property in the residence district, and in all other respects denied the petition. The board and the property owner appeal from so much of the order entered thereon as granted the petition, and the adjoining property owner appeals from so much of said order as denied the petition. Order modified by striking therefrom the ordering paragraph and by substituting in place thereof a provision that the proceeding be dismissed, without costs. As so modified, order unanimously affirmed, with one bill of costs to appellants-respondents and the intervenor-appellant-respondent, payable by the respondent-appellant. The proof set forth by the board of zoning appeals in its resolution and in its return warranted the determination (339 West 34th St. v. Board of Standards & Appeals, 279 App. Div. 1032, affd. 305 N. Y. 878; Matter of Douglaston Civic Assn. v. Board of Standards & Appeals, 278 App. Div. 659; Matter of Sima v. Board of Standards & Appeals, 278 App. Div. 785; Matter of Kelly v. Murdoch, 275 App. Div. 786.) Present — Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ. [11 Misc 2d 544.]