Citation Numbers: 39 Misc. 2d 1071
Judges: Elsworth
Filed Date: 8/21/1963
Status: Precedential
Modified Date: 2/5/2022
In this article 78 proceeding petitioners seek to review a resolution of the Zoning Board of Appeals allowing Fleahman-Rice Enterprises, Inc., to construct an automatic car wash in the Town of Bethlehem. Subsidiary motions of petitioners to amend their petition and of FleahmanRice Enterprises, Inc., to intervene are granted. The motion of respondents to strike paragraphs 5 and 6 from the petition as irrelevant and paragraphs 18 and 19 as argumentative is granted. The motion to strike paragraphs 7 and 8 is denied. Exhibits B, C, D and E attached to the petition are stricken on respondents’ motion.
Permission for the car wash was granted as a special exception pursuant to article XVIII of the Zoning Ordinance which allows the Board of Appeals to permit in any district any modification of limitation as to use, when in its judgment the public convenience and welfare shall be substantially served and the appropriate use of neighboring property will not be substantially or permanently injured. The ordinance itself divides the Town of Bethlehem into various districts including residence districts of varying restrictions, business districts, industrial districts and rural districts, some of the latter of which are zoned and some unzoned. Most of the lands for which permission was sought for the car wash are. in a business district, but a small part are in a residential district. The building itself and the blacktop would be located entirely in the business zone.
The Zoning Ordinance of the Town of Bethlehem narrowly confines the uses in a business district to the following: store, office, bank, studio, theatre or motion picture house, restaurant or lunchroom, mortuary or undertaking parlor, bathhouses, boathouses, broadcasting station, motor vehicle salesroom with service and repair in the rear, printing plant, aviation field or airport, cemetery, dock, wharf, shipyard, boat repair yard, boat storage, net storage, shop for making articles sold at retail on the premises, bowling alleys and commercial recreation buildings. Certain other uses such as a gasoline station cannot be had in any zone without a special permit. Many other uses are specifically prohibited in any part of the town by the last subdivision of article V of the Zoning Ordinance. A car wash is not mentioned at all in the ordinance and is neither a permitted nor a prohibited use.
Petitioners argue that the Zoning Board of Appeals has no power to approve a use not permitted under the ordinance and if paragraph 8 of article XVIII of the Zoning Ordinance gives such power it is unconstitutional. This court cannot agree with either contention. The language of the ordinance expressly permits a modification as to use. A modification of use sanctions an alteration of use. Here the modification to allow a car wash on lands which are substantially all in a business district with
The power to modify cannot here be construed as an unlawful delegation of legislative power since the ordinance specifies as standards for its exercise a finding that (1) public convenience and welfare shall be substantially served and (2) that the appropriate use of a neighboring property will not be substantially or permanently injured.
Nor can the determination here of the Board of Appeals be found to be arbitrary and capricious. There was sufficient evidence of the serving of public convenience and the lack of injury to neighboring properties. The evidence to the contrary created a question of fact, but the resolution of such question cannot be disturbed by this court since justification for the determination arrived at may be found in the record.
Accordingly, the petition is dismissed.