Crossroads Recreation, Inc. v. Broz , 2 A.D.2d 862 ( 1956 )

Proceeding to review the determination of the board of appeals of the Village of Mount Kiseo denying petitioners’ application for a variance to demolish an existing gasoline service station, a nonconforming use, and to erect in its stead a modern and much larger service station. The proceeding has been transferred to this court (Civ. Prac. Act, § 1296). Petitioners contend that they have complied with the requirements set forth in Matter of Otto v. Steinhilber (282 N. Y. 71). Determination confirmed, with $50 costs and disbursements. (Matter of Di Bari v. Board of Stds. & Appeals of City of N. Y., 280 App. Div. 810, affd. 1 N Y 2d 756.) Wenzel, Acting P. J., Beldock and Kleinfeld, JJ., concur; Murphy and Ughetta, JJ., dissent and vote to annul the determination and to direct the granting of the application. Although offering no proof, the village, in effect, directed its board of appeals to deny the application. No other property owner objected and some affirmatively expressed their approval. Petitioners’ gasoline station is located on a narrow and isolated triangular block bounded by three streets. One of the board members conceded that “There is not much that you can do with the little triangle other than a gasoline station.” It is presently in wretched condition. All the proof in the case, including that of real estate experts, supports the application. A similar application was granted with respect to a gasoline station immediately across the street. The determination was arbitrary.