Summary
In Eckerman v. Murdock, 276 App.Div. 927, 928, 94 N.Y.S.2d 557 (1950), a case cited by the plaintiffs, the petitioner before the zoning authorities was the owner of the subject property.
Summary of this case from R & R Pool & Home, Inc. v. Zoning Board of AppealsOpinion
January 30, 1950.
Present — Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ.
On April 16, 1941, the intervener-respondent made an application under subdivision (f) of section 7 of the Zoning Resolution of the City of New York for a variance to erect a gasoline station on its premises, which were then zoned for business. The application was withdrawn on February 2, 1942, was reopened on December 11, 1945, and came on for hearing on June 17, 1947. By that time the zoning of the premises had been changed from business to restricted retail, so that the application could not be granted under subdivision (f) of section 7. On July 15, 1947, the application for the variance was granted. Through inadvertence, the resolution granting the variance recited the granting under subdivision (f) of section 7, which was then inapplicable. On August 15, 1947, petitioner instituted a certiorari proceeding to review the determination granting the variance. On December 29, 1947, on motion of the intervener, the matter was remitted to the board of standards and appeals. On May 25, 1948, without notice to petitioner, the board amended its resolution of July 15, 1947, to recite that the variance had been granted under subdivision (e) of section 7 and not under subdivision (f) of section 7. On July 27, 1948, the board denied petitioner's request to reopen the matter. By this certiorari proceeding, petitioner seeks to review the determination of the board of July 27, 1948. Order dismissing order of certiorari unanimously affirmed, without costs. On May 27, 1948, petitioner, the owner of a gasoline station diagonally across the street from the property for which the variance was granted, conveyed the property and took back a purchase-money mortgage. Nevertheless, petitioner is a party aggrieved and may maintain this proceeding — if not on her own behalf, she must be deemed to have acted as the agent and with the consent of the holder of the legal title. ( Matter of Hickox v. Griffin, 274 App. Div. 792, revd. on other grounds 298 N.Y. 365; cf. Siegemund v. Building Comr. of City of Boston, 263 Mass. 212, 215.) Not having raised the question in the court below of the unconstitutionality of subdivision (e) of section 7 of the zoning resolution, petitioner may not now raise that question for the first time on appeal. ( Matter of Thomas v. Board of Standards Appeals, 263 App. Div. 352; revd. on other grounds 290 N.Y. 109; Commissioner of Public Welfare v. Jackson, 265 N.Y. 469; Matter of Andersen, 178 N.Y. 416; Jahn v. Berzon, 255 App. Div. 1023.) In any event, subdivision (e) of section 7 is constitutional. ( Matter of Thomas v. Board of Standards Appeals, supra.) Subdivision (e) of section 7 authorizes the granting of a variance for a gasoline station in a restricted retail district. Petitioner was not entitled to notice of the hearing on May 25, 1948, which was merely for the purpose of correcting a clerical error. Petitioner does not argue that the facts did not warrant the granting of the variance under subdivision (e) of section 7.