Matter of Selleck v. Waterbury

Full title: In the Matter of the Application of FRANK SELLECK, Respondent, for a…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 7, 1939

257 App. Div. 1049 (N.Y. App. Div. 1939)

Opinion

July 7, 1939.

Proceeding to review the determination of a zoning board of appeals. If this application be considered as one to review the denial by the board of appeals of an application to permit a variance of a zoning ordinance, the determination of the board would have to be affirmed upon the grounds (1) that no notice of a public hearing was published; (2) there were no facts submitted to the board of appeals upon which a variance of use could be granted. In this certiorari proceeding the learned official referee, before whom by consent the proceedings were heard and determined, concluded that the zoning ordinance under consideration was void on the ground that it was arbitrary and unreasonable. In view of the fact that the zoning board had no power to declare the ordinance void ( Matter of Cherry v. Brumbaugh, 255 App. Div. 880), the referee, in reviewing its action, had no power to make a determination to that effect. The power of the board of appeals was invoked in connection with an order of the enforcement officer directing the petitioner herein to discontinue a certain building operation on the ground that it was in violation of an ordinance. The board had no power, as stated, to determine that the ordinance, which the enforcement officer sought to enforce, was void, and, therefore, neither the board nor the enforcement officer, who is not a party herein, could be stayed in this proceeding from enforcing the ordinance. These conclusions are reached although the court agrees with the learned referee that the ordinance is arbitrary and unreasonable. Order sustaining the order to review the determination of the board of appeals reversed on the law, with costs, and the proceedings dismissed, without prejudice to such proceedings or action as the petitioner may be advised to bring.

Lazansky, P.J., Hagarty and Taylor, JJ., concur; Carswell, J., concurs in result; Close, J., dissents, with the following memorandum:

I dissent and vote to affirm on the ground that the matter was treated by the board of appeals as an application for a variance. The facts establish that its refusal to grant such a variance is unjust, unreasonable and capricious. The board may not on its own motion take advantage of its neglect to give the notice required by law.