future development of the neighborhood' than would the use for office building purposes of those where permission has been granted. Indeed it is the present use of the plaintiffs' building for apartment house purposes that is chiefly relied upon by the defendants in the present proceeding to justify the refusal of permission to the plaintiffs to use such property for office building purposes. It is insisted before this Court that Regulation 30, read in connection with the preamble, in effect precludes the Board of Zoning Adjustment from authorizing the change of use from a well equipped apartment house to an office building. To do so, it is urged, would not be in harmony with the general purpose and intent of the zoning regulations and maps, and the only relief available to the plaintiffs is a change of the zoning and maps of the area by the Zoning Commission. In this, I believe the Board of Zoning Adjustment has made a mistake of law. Reading the preamble together with Regulation 30, it seems clear that the limitations on using the property in the area here in question for office building purposes are that such use will not render less desirable for residential purposes other property in the neighborhood used as such. It is reasonable to assume that the Zoning Commission has, by the regulation here in question, made legislative determination that the change from the use of a building as an apartment house to one for office building purposes, or banks, does not in and of itself, and without more, constitute a use not in harmony with the general purpose and intent of the zoning regulations and maps, nor affect adversely the present character and future development of the neighborhood.
It is urged by the Board of Zoning Adjustment in these proceedings that the granting of a special exception is a matter of grace, or favor, and not one of right. There can be no question that there is discretion in the Board within the latitude fixed by the regulations, and that a court should not usurp the function of the Board in exercising that discretion, but, however it may be phrased, every one upon whom any organ of government acts has a right to have that agency make its decision upon evidence, which is open to question and correction, and the exercise of discretion and the consequent judgment of the agency must be controlled by the same principles that control such agency's action in its dealings with others. If there be facts within the expert knowledge of the members of the Board, or acquired by personal inspection of the premises, these should be revealed at the hearing so that opportunity may be afforded to meet them by evidence or argument. There is no room for arbitrary action or unjust discrimination in our form of government by any of its agencies.
The very great importance that zoning laws and regulations have had, and will undoubtedly continue to have, in the development and growth of this great city, as well as other cities throughout the nation, must be recognized and their effectiveness protected. The very existence, however, of these laws and regulations recognize the absolute necessity to avoid working grave hardship in some instances, which would draw into question the validity of the laws themselves, by allowing variances within an established zone. Such variances arise out of the need to alleviate grave and unwarranted hardship, and the granting of relief by permitting a nonconforming use in such instances does not, of course, establish a right in others to demand a variance also. But the special exception here involved is not that kind of a variance, and there is no need here to show a hardship in order to warrant the use authorized by the regulation, as seemed to be the premise of the argument before this Court in this case.
While the conclusion of this Court is that the order of the Board of Zoning Adjustment here involved is invalid in that it is not supported by any substantial evidence, and the discretion exercised by the Board in so far as disclosed by the record was arbitrary and capricious, and said order was made under a mistaken construction of the law and regulation and, therefore, said order must be vacated and set aside, the Court will not usurp the function of the Board, but will, by an appropriate decree, direct that the Board open the hearing in which the vacated order was entered, proceed to take such evidence as may be properly offered, and thereupon make findings supported by such evidence in accordance with the proper exercise of discretion and applicable law. The Court assumes that the Board will follow the construction of the applicable law determined in these proceedings, unless modified on appeal by an appropriate court of review. In this posture of the case, the mandatory injunction directed to the Building Inspector is denied.
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