Hamlett v. Snedeker , 246 A.D. 758 ( 1935 )

The petitioner made application to the town board of the town of North Hempstead for a change of the zoning ordinance, pertaining to petitioner’s property located in the village of Manhasset, from a business zone to an industrial zone. It does not appear that there had been any such industrial zone established. It was, in effect, a petition for new legislation. There was no application for variance because of practical difficulties and unnecessary hardships. A hearing was granted before the town board and substantial opposition developed to any such change. No proof was offered by the petitioner and nothing appeared in her application indicating that the property could not be utilized in a conforming use. The application was denied and the petitioner sought review by a certiorari order. It appeared that It was proposed to erect a saw mill on this property in the neighborhood of residences; and for the first time it was alleged in any sworn statement that the value of the property of the petitioner was impaired by reason of the ordinance. The answer and the return of the town board indicated that the denial of the application was based on the showing made in opposition and the personal knowledge of the members of the board and was denied as an act of discretion vested in them in the interest of the public health, safety and welfare —■ after the matter had been referred to the town planning board and zoning commission, which had recommended that no change be made. There was no hearing and no evidence taken at Special Term. This record does not present any facts showing that the zoning ordinance in its present form is unreasonable and thereby illegal and void. Order sustaining the certiorari order and annulling the determination of the town board reversed on the law and the facts, with costs, certiorari proceeding dismissed and the determination of the town board reinstated and confirmed. Lazansky, P. J., Young, Hagarty, Dams and Johnston, JJ., concur.