Opinion
December 17, 1951.
Present — Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ.
This proceeding under article 78 of the Civil Practice Act to review the determination of the zoning board of appeals of the village of Larchmont, Westchester County, denying petitioner's application for a variation of the zoning ordinance of that village to permit the construction of a business building in a Class B Multiple Dwelling District, where under the ordinance that use is not permitted, and for an order directing the building inspector of said village to issue a permit for such construction, has been transferred to this court pursuant to section 1296 of the Civil Practice Act. Determination of the zoning board of appeals of the village of Larchmont unanimously confirmed, with $50 costs and disbursements, and petition dismissed, without costs. In our opinion there was substantial evidence before the board of appeals to constitute a reasonable basis for its findings that the hardship of which petitioner complains was self-created ( Matter of Thomas v. Board of Standards Appeals, 263 App. Div. 352, 355, revd. on other grounds, 290 N.Y. 109; Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86, 89; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N.Y. 280, 288; Matter of Holy Sepulchre Cemetery v. Board of Appeals, Town of Greece, 271 App. Div. 33, 41); that the construction of the building for which petitioner sought a permit, as shown on petitioner's submitted plans, would have created a traffic congestion hazard dangerous to the residents of the village; that the plan of said building as filed with petitioner's application for a permit did not comply with the requirements of the zoning ordinance. Petitioner failed to sustain his burden of showing that the applicable provisions of the ordinance were not reasonable and justified under the police power of the State ( Shepard v. Village of Skaneateles, 300 N.Y. 115, 118, and cases there cited); or that the determination of respondents was arbitrary or contrary to law. This court may not substitute its judgment for that of the board of appeals. ( People ex rel. Hudson-Harlem Co. v. Walker, 282 N.Y. 400, 405; Matter of Rubel Corp. v. Murdock, 255 App. Div. 224, affd. 280 N.Y. 839; People ex rel. Sullivan v. McLaughlin, 266 N.Y. 519.)