
    In the Matter of Lemir Realty Corp., Appellant, v. Edward P. Larkin et al., Constituting the Town Board of the Town of Hempstead, Respondents.
    Argued January 8, 1962;
    decided February 22, 1962.
    
      
      Arden H. Rathkopf for appellant.
    I. The Appellate Division erred in holding that there was no issue with respect to the facts stated in respondent’s answer and in the affidavit submitted in support of the same. II. The Appellate Division erred in holding that the conclusion drawn by, and the action of, the Town Board was not arbitrary and capricious. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Matter of Phinn v. Kross, 8 A D 2d 132; Matter of Newton v. County of Erie, 7 A D 2d 29; Matter of Haywood v. Craig Colony, 7 A D 2d 69; Matter of Mutual Ins. Rating Bureau v. Superintendent of Ins. of State of N. Y., 6 A D 2d 73, 5 N Y 2d 706; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164; Matter of Fink v. Cole, 1 N Y 2d 48; Matter of Kaplan v. O’Connell, 281 App. Div. 46, 305 N. Y. 850; Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Reynolds v. Triborough Bridge & Tunnel Auth., 276 App. Div. 388; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of Doca v. Federal Stevedoring Co., 308 N. Y. 44; Matter of Wulfsohn v. Burden, 241 N. Y. 288; 
      Euclid v. Ambler Co., 272 U. S. 365; Matter of Small v. Moss, 279 N. Y. 288; Matter of Rothstein v. County Operating Corp., 6 N Y 2d 728; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508; Matter of Bar Harbour Shopping Center v. Andrews, 23 Misc 2d 894; Matter of 109 Main St. Corp. v. Burns, 14 Misc 2d 1037.) III. The Appellate Division erred in weighing the action of the Town Board as an exercise of its legislative function. (Matter of Larkin Co. v. Schwab, 242 N. Y. 230; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534; Keigley v. Bench, 97 Utah 69; Kuberski v. Haussermann, 113 N. J. L. 162; Sears v. Atlantic City, 73 N. J. L. 710; Union Pacific R. R. Co. v. United States, 99 U. S. 700; Matter of Holmes & Murphy v. Bush, 6 A D 2d 200; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; Matter of Lemir Realty Corp. v. Larkin, 8 AD 2d 970.)
    
      John A. Morhous, Town Attorney, for respondents.
    The petition in this proceeding and the documents supporting it were properly dismissed because they neither allege nor establish that the Town Board’s determination was based on a reason which it might not legally consider. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534; Matter of Rothstein v. County Operating Corp., 6 N Y 2d 728; Rodgers v. Village of Tarrytown, 302 N. Y. 115.)
   Chief Judge Desmond.

Petitioner-appellant is the owner of land at the northwest corner of the intersection of Hempstead Turnpike and Division Avenue in the Town of Hempstead, Nassau County. Under the town zoning ordinance (§§ X-1.0, X-1.9) the premises are in a Business Use District and may be used for a gasoline station only when approved as a special exception by the Town Board”. Petitioner’s application for such a “ special exception ” was denied by the board and this proceeding was brought to compel the grant. The petition prayed for a “ review ” of the board’s determination and for a direction by the court that the Town Board grant it permission to construct a gasoline station (and for associated relief, which we need not separately discuss herein, of a permit to install gasoline storage tanks).

Protracted litigation followed, each party taking an extreme position. The board, citing Matter of Green Point Sav. Bank v. Board of Zoning Appeals (281 N. Y. 534), insisted that its denial was a legislative act and not subject to any court review at all. Petitioner, citing Matter of Rothstein v. County Operating Corp. (6 N Y 2d 728), pointed out that this court had held that a similar determination under the same provision of this selfsame ordinance was reviewable as to reasonableness ” in an article 78 Civil Practice Act proceeding. Since, argued petitioner, the board refused to file an answer stating its reasons, a mandamus order had to issue forthwith. Special Term directed the board to file a return. The board did so, giving these reasons for refusing the special exception: that the intersection of which plaintiff’s land forms one corner is “ one of the most heavily trafficked” in the town; that extending several hundred feet along Division Avenue (opposite the proposed gas station site) is “ a major shopping center”; that further along on that opposite side of Division Avenue is a public school; that on the northeast corner, that is, the corner east of petitioner’s land, there is a bus stop; and that to the rear of the shopping center and less than 400 feet from petitioner’s site there is now a gasoline service station. These physical facts are of course undisputed. Petitioner, however, denied the validity or reasonableness of the board’s conclusory finding that “ permission to erect and maintain a gasoline filling station upon the subject premises would increase vehicular traffic, endanger the health and safety of the public and particularly in an area wherein a heavy concentration of shoppers and school children congregate and that the use of the subject premises is not in accord with the comprehensive plan of development of the Town of Hempstead.” The Justice at Special Term, drawing on his own familiarity with the neighborhood, concluded that the board’s five reasons did not afford sufficient support for denying the gas station application and so made an order granting the petition. The Appellate Division, however, while conceding the reviewability of the board’s determination, stated as the controlling rule as to the extent of such reviewability that grant or denial of such a special exception is “ left to their [the board’s] untrammeled, but of course, not capricious discretion, with which the courts may not interfere except on proof that refusal to grant the permits was based solely on grounds which as a matter of law the board might not consider” (citing Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 335).

We read the Appellate Division’s opinion as a restatement of the settled rule that in reviewing board actions as to variances or special exceptions the courts do not make new or substitute judgments but restrict themselves to ascertaining whether there has been illegality, arbitrariness, or abuse of discretion (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; Matter of Reed v. Board of Stds. & Appeals, 255 N. Y. 126; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v. Walker, 282 N. Y. 400; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534, supra, app. dsmd. 309 U. S. 633; Matter of Douglaston Civil Assn. v. Board of Stds. & Appeals, 278 App. Div. 659, affd. 302 N. Y. 920; Matter of Di Bari v. Board of Stds. & Appeals, 280 App. Div. 810, affd. 1 N Y 2d 756; Matter of Ernst v. Board of Appeals, 274 App. Div. 809, affd. 298 N. Y. 831; Matter of Del Vecchio v. Tuomey, 283 App. Div. 955, affd. 308 N. Y. 749; Matter of Von Kohorn v. Morrell, 9 N Y 2d 27). Board action refusing to grant a “ special exception ” is by definition and in essential character discretionary and not a denial of a right (see Matter of Reed v. Board of Stds. & Appeals, 255 N. Y. 126, supra; Barkmann v. Town of Hempstead, 294 N. Y. 805). Otherwise, there would be no point in listing certain uses as the permitted ones in a use district and listing others as permissible only when specially, exceptionally and affirmatively authorized by the board.

Our memorandum decision in Matter of Rothstein v. County Operating Co. (6 N Y 2d 728, supra) meant that special exceptions grants or denials, even though by a legislative body, were for court review purposes administrative with the result that they are subject to review “as to reasonableness ” in an article 78 proceeding. But it did not mean that the bringing of such a proceeding transfers original jurisdiction of such a matter to the courts. The courts do not sit to supervise the discretionary acts of the hundreds of town boards and town zoning boards in this State.

“ The mere fact that consents were granted to owners of premises somewhat similarly situated does not in itself show that consent was arbitrarily refused to this applicant. The question is not whether someone else has been favored. The question is whether the petitioner has been illegally oppressed. Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through its exercise. Calculated failure to lay down general standards in the ordinance should not be nullified by interpretation that each case passed upon creates a standard that must be generally followed thereafter. The council may refuse to duplicate previous error; it may change its views as to what is for the best interests of the city; it may give weight to slight differences which are not easily discernible ” (Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 336, supra).

Observance of these fundamentals produces an affirmance in this ease. Under the ordinance the Town Board had the power but not the obligation to license gasoline stations in Business Use Districts. The courts have the power and duty to ask the board for its reasons, so as to determine whether they were lawful ones or such as reasonable minds could act on. The board’s reasons were forthcoming: especially heavy traffic at the point and, nearby, a shopping center, a school, a bus stop and an existing gasoline station to serve the needs of the public. For a court to say that those reasons are not good enough would mean that the Judges have taken over the duties and powers of the board. “ Special exception” disputes are to be resolved by the “ common-sense judgments ” of “ representative citizens doing their best to make accommodations between conflicting community pressures ”, and for the courts to intervene, in the absence of clear illegality, would be contrary to the settled and practical necessities of zoning procedure” (Matter of Von Kohorn v. Morrell, 9 N Y 2d 27, 33, 34, supra).

In truth, all this was spelled out as early as 1926 in the famous case of Matter of Larkin Co. v. Schwab (242 N. Y. 330, supra) and restated by this court in 1939 in Matter of Green Point Sav. Bank v. Board of Zoning Appeals (281 N. Y. 534, 538, 539, supra): “ In enacting the ordinance the Town Board might have prohibited altogether a gasoline service station in a business district. Instead, the ordinance did not prohibit, provided the use was approved by the local legislative body which enacted the ordinance. There is not presented a case for the canalization of standards to guide an administrative body, for here the power of approving the use was retained by the legislative body. Where the approval is thus lodged in the local legislative body, and where the matter is one which may endanger the safety of persons and property, there need not be formulated standards for the dispensing power, and the ordinance is constitutional. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Fischer v. City of St. Louis, 194 U. S. 361; Storer v. Downey, 215 Mass. 273. Cf. Goldstein v. Conner, 212 Mass. 57.) The Town Board must act reasonably. So long as its actions come within that scope the courts may not interfere. Obviously, in the exercise of this dispensing power, consents must be refused to those not entitled thereto. A license for a gasoline station may well be denied when next to a public school or in the heart of a business district where a fire might be most disastrous, and at the same time be granted in a suburb or in a less crowded district. The question in each case is whether the establishment of a gasoline station in the particular place or in the particular way would imperil the safety of persons and property. Such dispensing power may properly be delegated to the municipal assembly which enacted the ordinance. (Fischer v. City of St. Louis, 194 U. S. 361.) ”

The order should be affirmed, with costs.

Burke, J. (dissenting).

We dissent and vote to reverse and remit to Special Term for a hearing. The Town Board has given neither evidence to support its reasons for denying the applications, nor have such reasons been shown to relate to the public health,- safety or welfare under the particular circumstances of this case.

The issue, as we see it, is not judicial interposition but whether the review of administrative determinations, espoused by the majority, is possible on the record presented to us. We think not.

The facts assigned by the town as those on which its determination was based do not lead to its conclusion, and further fail to furnish a reviewing court with evidence in the record justifying such result. While personal knowledge of the members of the Town Board is, of course, a permissible basis for a decision, a statement of facts upon which that knowledge is founded must be furnished, so that it may be appraised (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, 287; Matter of Holmes & Murphy v. Bush, 6 A D 2d 200, 203). There is none here.

Respondent, in its answer, first states that the premises are located at one of the most heavily trafficked intersections within the confines of the town ”. This is a totally conclusory statement, and unsupported by any facts, such as a traffic count. Special Term noted that the entire length of the turnpike is extremely busy, but that nevertheless, for instance, to the east, there is at least one other intersection, where stations occupy three corners, and many crossings with two such establishments. He further found, in the absence of evidence to the contrary, that this corner is no busier than others, and is controlled by a traffic light. He concluded that [t]here is no ground to suppose that the proposed use will add in any appreciable measure to the number of cars travelling on the Turnpike ”.

Secondly, the town pointed to a shopping center in the area and claimed that the addition of the gasoline station would endanger the safety of the shoppers. Appellant demonstrated by means of an exhibit—an aerial photograph of the area — that the location of the shops is such that there is very little traffic to them from the proposed location, and that the large parking area, where most of the traffic is centered, is behind the stores, a considerable distance from the subject premises. There are, of course, no facts in the town’s answer to indicate in what manner the gasoline station would interfere with shopping plaza traffic.

The town next alleges that there is a school in the same block as the shopping’ center. The school is not in the same block, but is three tenths of a mile north of the turnpike. The appellant contends that it is well known that the pupils do not walk on the same side of the street as the proposed station. Special Term made the following finding: “ The school referred to by the respondents is a considerable distance north of the petitioner’s property * * *. It is, in fact, in much closer proximity to a very large parking field of a shopping area of some magnitude. Hundreds of cars. enter and leave this parking area hourly. It is inconceivable that the proposed use would have any particular effect on the functioning of the school or the safety of its students ”.

Respondent also relies on the presence of a bus stop on the corner opposite the property. Special Term commented that “ [t]here is absolutely no evidence that the proximity to a bus stop would create an additional traffic hazard. Throughout the Town of Hempstead there are many locations where gasoline service stations and bus stops are permitted to exist near each other, but no proof has been offered that public safety has been adversely affected by such a pattern ”.

The existence of a gasoline station less than 400 feet away, on the opposite side of the street, is given as an additional reason. We cannot conclude, without an explanation, that this proposed station would be a hazard to the shopping center or school children, because the existing station is closer to both the center and the school than the proposed station. Special Term had this to say: “ The allegation that there is another gasoline station nearby is likewise without merit. This other station is not on the Hempstead Turnpike but is 400 feet north of the subject premises on the opposite side of Division Avenue. It is highly unlikely that any appreciable number of cars will turn off the Turnpike and drive north two hundred yards or more to patronize this existing station, which is convenient rather to the residential area to the north ’ ’.

Finally, the town concludes that the use of the subject premises is not in accord with the comprehensive plan of development of the Town of Hempstead ”. Apart from being merely a conclusory statement, it is contradicted, as we shall demonstrate below, by the very nature of a special exception use. The record, as it stands, suggests caprice.

The whimsical character of the reasons alleged by the town as the basis for its decision is appropriately emphasized when we consider the -town’s brief to the Appellate Division in the case of Matter of Rothstein v. County Operating Corp. (15 Misc 2d 340, affd. without opinion 6 A D 2d 711, affd. on entry G N Y 2d 728). There this same Toavu Board, having granted a special exception to a gasoline station, and arguing in favor of that issuance, made the following argument:

“What is the nature of the area surrounding the subject parcel? Atlantic Avenue is one of the heaviest traveled roads in the Town of Hempstead. Both sides of Atlantic Avenue for several hundred feet to the east and west of the subject parcel are zoned ‘ Business ’ District to a depth of 100 feet.
“Directly opposite the subject parcel, on the north side of Atlantic Avenue, is an immense shopping center with parking facilities for hundreds of cars. On the southwesterly corner of the intersection of Kenneth Place and Atlantic Avenue, opposite the subject parcel, is a gasoline station. Under these circumstances, how can the [respondents] seriously advance the position that the permission of the Town Board to store gasoline and maintain a gasoline filling station on the subject parcel would unduly increase vehicular traffic and congestion with a subsequent danger to children and other pedestrians!
“ It is clear from the record in the Court below that the use of the subject parcel for a gasoline filling station is a logical use in keeping with the letter and spirit of the zoning powers of the Town of Hempstead.”

In its view, therefore, respondent assumes it may, without showing ‘ ‘ the manner in which such physical facts created a reasonable apprehension of danger or were otherwise justified by relation to the public health, safety, morals or general welfare ” (1 Rathkopf, Law of Zoning and Planning, ch. 54, p. 43, n. 16), reach an opposite determination, generating from the same reasons. We disagree.

As is common in modern zoning legislation, this legislative body has reserved for itself the administrative power to review and act on individual applications. Thereafter, in each case, the decision is administrative in nature, and reviewable in the same manner as any other (Matter of Rothstein v. County Operating Corp., supra; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534).

It has been aptly said that “ an exercise of such discretion may be set aside (1) if discriminatory * * *; (2) if not ‘ pursued in the mode required by law ’ * * *; (3) if based solely upon grounds which, as a matter of law, may not be considered * * *; or (4) if arbitrary or unreasonable ” (.Matter of Bar TTarbour Chopping Center v. Andrews, 33 Misc 2d 894, 899-900).

The special exception sought by appellant is not a variance. “A special exception use differs from a variance in that a variance is an authority extended to a property owner to use his property in a manner forbidden by the ordinance while a special exception allows him to put his property to a use which the ordinance expressly permits. * * * The inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district, and while a variance can be granted only with respect to particular property as to which practical difficulty and unnecessary hardship is found, the special exception permit must be granted to any and all property which meets the conditions specified”. (1 Rathkopf, Law of Zoning and Planning, ch. 54, pp. 3-5.)

Hence, when called upon by a challenge to a decision made in the case of a special exception, the town should be compelled to supply an answer containing those facts upon which it has based its conclusion. Such a return, to be other than a pretense, should enable the court reviewing the order to suitably pass on the reasonableness of the determination. Here the facts upon which the determination was made have not been shown to have a substantial relation to any criteria upon which the application could be refused. The return furnished by the Town Board, and approved by the majority, is nothing more than a stock set of phrases, designed to answer any petition. What the town has done is to list certain physical features of the area, and its conclusion that these landmarks mandate the denial of a permit. What is missing, of course, is the causal relation between them. Since the town has withheld evidence as to the causal relation between the physical features of the area and the landmarks, the courts cannot effectually review the action of the Town Board.

When, without discrimination, identical physical facts are permitted to serve as the basis for opposite conclusions, the court obviously has forsaken its function in these matters. This is tantamount to a return to a position, lately eschewed, that actions of a Town Board, in determining special exceptions, are legislative in nature, and not reviewable. (See Matter of Larkin Co. v. Schwab, 242 N. Y. 330.)

Presented with such a patently insufficient return, Special Term should have called a hearing so that the facts could be determined, and their relationship, if any, to the decision examined. As Mr. Justice Beldock stated: These matters can he determined only after a hearing before the court, and not as a matter of law ”.

Judges Dye, Fuld, Froessel and Foster concur with Chief Judge Desmond ; Judge Burke dissents in an opinion in which Judge Van Voorhis concurs.

Order affirmed.  