Opinion
March 7, 1960
Present — Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Pette, JJ.
Appeal from an order dismissing a proceeding to review a determination of the respondent. On October 21, 1958 the Town Board of the Town of Oyster Bay resolved to grant an application by Shell Oil Company for a change of zone of certain property to business "G" and for the issuance of a special use permit to erect a gasoline service station, subject to the granting by the Zoning Board of Appeals of a variance from the provisions of article XXI of the local building zone ordinance, which provides that no gasoline vending station shall be erected or altered and used within 200 feet of any premises used for a public school. On January 22, 1959 the application for the variance came on for hearing before the Zoning Board of Appeals. Appellant appeared in opposition and argued that the board was without power to grant the variance because the proposed gasoline vending station was located within 200 feet of premises used for a public school. On January 29, 1959 the board granted the variance. After the building permit had been issued pursuant to the granting of the variance, appellant demanded a revocation of the permit, appealed from the denial of the revocation to the Zoning Board of Appeals, which denied the appeal, and on June 18, 1959 commenced this proceeding to compel revocation of the permit. Order unanimously affirmed, with costs. Even though the applicant for the variance may have proved practical difficulties or unnecessary hardship, the Zoning Board of Appeals had no authority to grant the variance in view of the provisions of article XXI of the local building zone ordinance. ( Matter of Boyd v. Walsh, 217 App. Div. 461, affd. sub nom. People ex rel. Boyd v. Walsh, 244 N.Y. 512.) However, appellant was required to test that authority by instituting an article 78 proceeding within 30 days after the filing of the decision granting the variance. (Town Law, § 267, subd. 7.) Appellant could not sit idly by and extend its time to commence a proceeding for judicial review until after the building permit had been issued.