Supreme Court, Queens County, New York,
Special Term, Part I.
ST. NICHOLAS RUSSIAN ORTHODOX CHURCH OF WHITESTONE, Petitioner, for a
certiorari order to review a determination of Harris H. Murdock, as Chairman,
Sean P. Keating, Edwin W. Kleinert, Max H. Foley and Harold R. Sleeper, as
Commissioners of, and constituting the Board of Standards and Appeals of the
City of New York, Respondents, and Redmont Sales Corp., Intervenor-Respondent.
April 6, 1960.
Certiorari proceedings brought by church to review determination of city board
of standards and appeals granting variance permitting sales corporation to erect
and maintain gasoline service station in retail use district. The board moved
for an order vacating order of certiorari, dismissing petition, and affirming
determination. The Supreme Court, Queens County, Special Term, Charles Margett,
J., held that board might grant a variance to enable owner of land to make
reasonable and proper use of his property if that could be done without violence
to the general zoning plan and without substantial inconvenience to the
immediate neighborhood, although no consent to such variance by adjoining
property owners had been filed, and that action of board was not unjustified as
a matter of law.
Motion granted, petition dismissed and determination confirmed.
West Headnotes
[1] Zoning and Planning 489
414k489 Most Cited Cases
City board of standards and appeals has power to vary application of zoning
resolution without a showing of unique hardship to enable an owner to make a
reasonable and profitable use of his property if that can be done without
violence to the general zoning plan and without causing substantial
inconvenience to the immediate neighborhood, although the applicant has no right
to insist upon a decision in his favor. New York City Charter, § 666, subd. 5.
[2] Zoning and Planning 506
414k506 Most Cited Cases
Where residences in affected area could not support the maintenance of large
shopping center and business already existing, so that business had to be drawn
from surrounding and outlying areas, and existing gasoline service stations were
too remote from shopping center and were inadequate for servicing vehicles of
shopping center patrons, action of city board of standards and appeals, in
granting variance permitting sales corporation to erect and maintain gasoline
service station in retail use district for limited term and subject to
safeguards, was not unjustified as a matter of law, although no consent to such
variance by adjoining property owners had been filed, and board's determination
was confirmed. Civil Practice Act, § 1283 et seq.; New York Charter, § 666,
subd. 5.
[3] Zoning and Planning 491
414k491 Most Cited Cases
Fact that city board of standards and appeals had permitted sales corporation to
withdraw an application for variance to allow gasoline service station in retail
use district did not affect validity of later action of board in granting such a
variance, where the prior application sought to erect the proposed service
station in a different location. New York Charter, § 666, subd. 5.
[4] Zoning and Planning 506
414k506 Most Cited Cases
Where city board of standards and appeals found that existing gasoline stations
were too remote and inadequate to service the vehicles of patrons of large
shopping center, the mere number of gasoline stations within and without the
affected area did not justify disturbing determination of board granting a
variance permitting sales corporation to erect and maintain a gasoline station
in retail use district, since it is not within province of the board to stifle
business competition. New York Charter, § 666, subd. 5.
**425 *381 Stephen Shostak, New York City, for petitioner.
Charles H. Tenney, Corp. Counsel, New York City, for respondents Board of
Standards and Appeals; Rose Schneph and Joseph Entel, New York City, of counsel.
**426 Dreyer & Traub, Brooklyn, for intervenor-respondent Redmont Sales Corp.;
Samuel Kirschenbaum, Brooklyn, of counsel.
CHARLES MARGETT, Justice.
In this Article 78 proceeding to review and annul a determination of
respondents granting to the intervenor-respondent a variance under subdivisions
(f) and (i) of section 7 of the Zoning Resolution of the City of New York
permitting the intervenor-respondent to erect and maintain a gasoline service
station in a retail use district, respondents move for an order vacating the
order of certiorari, dismissing the petition and affirming their determination.
The intervenor-respondent has held title to the property in question since
February 18, 1953. Said property (Lot 5, Block 4697) is located in Whitestone.
It is an unimproved, irregular plot of the following footage: 86.20 by 105.93 by
85 by 120, the latter fronting on Clintonville Street. The block in which the
site is situated is bounded on the north by 14th Road, on the east by
Clintonville Street, on the south by the Cross Island Parkway and on the west by
150th Place. Lot 5 of Block 4697 is completely surrounded by Lot 3 in the same
block, which is also undeveloped and is owned by the intervenor-respondent who
proposes to develop it as an additional free parking lot for the patrons of the
developed shopping center across the street. Abutting the south lot line of the
aforesaid Lot 3 is Lot 8, upon which the intervenor-respondent proposes to erect
an automatic auto laundry, referred to above, pursuant to a variance already
granted by the respondents. Those three lots, 3, 5 and 8, make up about one-half
of Block 4697. There are in the affected surrounding area three additional large
undeveloped plots, one on the westerly side of Clintonville Street and two on
the easterly side.
The site and the Cross Island Parkway are in a retail use, D area;
Clintonville Street is in a business and retail use, D area, and 14th Road is in
a business, retail and residence use, D area. The present zoning of the site
involved herein and the affected surrounding area resulted from an application
by the intervenor-respondent to the City Planning Commission (when said
respondent was merely the equitable owner of the greater part *382 of the
property located in the affected surrounding area, which was in the main
undeveloped) in order to erect and maintain a comprehensive shopping center,
including ample free parking facilities for tenants, employees and patrons, as
well as facilities for an automatic auto laundry and gasoline service station to
service the cars of patrons of the shopping center. Of course, the plan for the
automatic uses could not be carried out until a variance was obtained.
A large shopping center with two entrances along the easterly side of
Clintonville Street is directly across the street from the site in question and
is fully developed with three large one-story buildings and two large parking
facilities, in addition to the provision of a space for loading and **427
unloading for the supermarket located within one of said buildings. A variance
permitting the erection and maintenance of an automatic laundry on Lot 8 of
Block 4697 has already been obtained by the intervenor-respondent. When erected,
it will run the length of Block 4697, facing the entrances to the shopping
center on the easterly side of Clintonville Street and an existing gasoline
service station on the northwesterly corner of 150th Place and the Cross Island
Parkway. There are four gasoline service stations within the affected area,
almost on its perimeter, and nine others in areas abutting and surrounding the
affected area.
Clintonville Street is a heavily trafficked crosstown arterial highway linking
motor vehicle traffic with other crosstown arterial highways running south of
the site involved herein, such as the Cross Island Parkway, 154th Street, 160th
Street, 163rd Street and Francis Lewis Boulevard. Both the east and west sides
of Clintonville Street between 14th Road and 14th Avenue in the affected
surrounding area are located in a business use district and can be developed at
will for business use. The residences in the affected area cannot support the
maintenance of the large shopping center and business, therefore, must
necessarily be drawn from surrounding and outlying residential areas. In order
the attract such patrons for the shopping center, it is essential that adequate
facilities for the servicing of their vehicles be made available. The existing
gasoline service stations within and without the affected area, in addition to
being too remote from the shopping center, are also too small and inadequate.
In subparagraphs (a) through (w) of paragraph 20 of their petition,
petitioners set forth the bases for their contention that respondents'
determination was 'illegal, erroneous, arbitrary, capricious, improper, ultra
vires, inequitable and void'. To set forth each stated ground would draw this
*383 opinion out to inordinate length. In their extremely detailed return and
comprehensive memorandum of law, respondents have effectively refuted each
contention of substance, and the court finds that their determination was not
arbitrary or illegal or contrary to law.
[1] A reading of the factual summary hereinabove set forth in the light of the
following rules of law governing proceedings such as this amply supports that
conclusion. The Board of Standards and Appeals is 'made up of men with special
qualifications of training and experience' (People ex rel. Fordham Manor
Reformed Church v. Walsh, 244 N.Y. 280, 287, 155 N.E. 575, 577) with power to
vary the application of the Zoning Resolution (New York City Charter, § 666,
subd. 5). And a variance may be granted under subdivisions (f) and (i) of
section 7 of the Zoning Resolution without a showing of unique hardship (Reed v.
Board of Standards & Appeals, 255 N.Y. 126, 134-135, 174 N.E. 301; Douglaston
Civic Ass'n v. Board of Standards & Appeals, 278 App.Div. 659, 660, 102 N.Y.S.2d
582, 583, affirmed 302 N.Y. 920, 100 N.E.2d 187). 'The variation may be made to
meet the specific case in order to **428 enable the owner to make a reasonable
and profitable use of his property if it can be done without violence to the
general zoning plan and without causing substantial inconvenience to the
immediate neighborhood, although the applicant has no right to insist upon a
decision in his favor' (Reed v. Board of Standards & Appeals, supra, 255 N.Y. at
page 135, 174 N.E. at page 303).
[2] The Board complied with the requirements as to notice and was not bound to
deny the application simply because no consent thereto had been filed. The basis
for the Board's action is exhaustively stated in its return. This is sufficient
(Levy v. Board of Standards & Appeals, 267 N.Y. 347, 351, 196 N.E. 284, 285;
Reed v. Board of Standards & Appeals, supra, 255 N.E. at page 133, 174 N.E. at
page 303; Community Synagogue v. Bates, 1 N.Y.2d 445, 454, 154 N.Y.S.2d 15, 23).
The Board, which is composed of experts in zoning and related matters, after
four separate inspections of the surrounding area by its committee, unanimously
found that the erection and maintenance of the proposed modern gasoline service
station for a limited term of fifteen years, subject to conditions and
safeguards imposed by it, would not adversely affect the neighboring properties
nor be in any way detrimental to the interests of public health, safety and the
general welfare. Certainly, this court is unable to say on the record before it
that the action of respondents is unjustifiable as matter of law (Reed v. Board
of Standards & Appeals, supra, 255 N.Y. at page 136, 174 N.E. at page 304; see
also Woltman v. Murdock, 6 A.D.2d 877, 177 N.Y.S.2d 650).
[3][4] That the respondents had permitted the intervenor-respondent to withdraw
an application for like relief does not, under *384 the circumstances disclosed,
require a different result. As stated by the Court of Appeals in Reed v. Board
of Standards & Appeals, supra, 255 N.Y. at page 133, 174 N.E. at page 303, 'if
new plans materially change the aspects of the case, a new application may be
made and a new determination had.' Crucially, on the prior application by the
intervenor-respondent, it sought to erect the proposed gasoline service station
on the easterly side of Clintonville Street, thus eliminating two entrances to
the shopping center on that street and causing the station to abut the residence
dwelling to the north and the adjacent property of the petitioner to the south.
The present application was not granted for that property but for the property
across the street, a most material change. And the mere number of gasoline
service stations within and without the affected area does not justify
disturbing the determination of the Board. In the first place, the Board found
that they were too remote and inadequate to service the vehicles of patrons of
the large shopping center. In the second place, it is not within the province of
the Board to stifle **429 business competition. Blumenreich Properties, Inc. v.
Waters, 14 Misc.2d 947, 948, 178 N.Y.S.2d 905, 906.
The motion is accordingly granted, the petition dismissed and respondents'
determination confirmed.
Submit order.
201 N.Y.S.2d 424, 25 Misc.2d 380
END OF DOCUMENT