Mandelbaum v. Sahm , 1 A.D.2d 841 ( 1956 )

Proceeding, pursuant to section 267 of the Town Law and article 78 of the Civil Practice Act, to review a determination of the board of zoning and appeals of the Town of North Hempstead, Nassau County, granting a variance to use a store, upon certain conditions, for the assembly of small devices for wholesale purposes, under article S of the town building zone ordinance. The appeal is from the order dismissing the petition. Order affirmed, without costs. No opinion. Wenzel, Acting P. J., Beldoek, Ughetta and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the order and to grant the application to annul the determination of the zoning board, with the following memorandum: The applicant invoked, and the board granted, the proposed use as a conditional one within the purview of section 102.2% of the ordinance. That section is inapplicable as the proposed use is not one for “storage and sale of materials”. It is a prohibited industry (see § 103.2 of the ordinance). Nor can the application be justified under section 102.11 which permits the board to grant as a conditional use “ Any use of the same general character ”, Section 102.11 is part of and relates only to the conditional uses specified in section 102.0. The proposed use claimed to be of the same general character is not within the scope of section 102.0, et seq. Furthermore, the board has not had an opportunity to determine this question. (Matter of Thomas v. Board of Standards & Appeals, 290 N. Y. 109, 116.)