MATTER OF CHIZNER v. WALSH

Order sustaining certiorari order and annulling the determination of the board of standards and appeals reversed on the law and the facts, with costs, certiorari proceeding dismissed, and the determination reinstated and confirmed. In our opinion the record does not establish that the site, if devoted to conforming uses, would not yield a fair or proper return on the investment. The board of standards and appeals had a discretionary duty in the matter and there is no warrant in the record to ascribe to it an arbitrary determination. The mere fact that variances were granted in other instances in the locality "affords no valid reason" for insisting on a variance in the present case. ( People ex rel. Werner v. Walsh, 212 App. Div. 635; affd., 240 N.Y. 689.) (See, also, Matter of Goldenberg v. Walsh, 215 App. Div. 396, at p. 401; revd., on dissenting opinion, in 242 N.Y. 576.) Lazansky, P.J., Kapper, Hagarty, Scudder and Davis, JJ., concur.