In the Matter of Jack C. Rosenstein, Appellant, v. Richard Curran et al., Constituting the Board of Zoning Appeals of the Incorporated Village of Freeport, Respondents, 21 A.D.2d 802

In a proceeding pursuant to

article 78 of the former Civil Practice Act, to direct the Board of Zoning Appeals of the Incorporated Village of Freeport to grant to petitioner a variance, the petitioner appeals from an order of the Supreme Court, Nassau County, entered February 20, 1963, which denied the application. Order affirmed, without costs. In effect, the petitioner sought permission to vary the application of the local Building Code to his newly completed building. The building violated a provision of this code, and not any provision of the local Zoning Ordinance. Neither the statute (Village Law, § 179-

b) nor the Building Code vested authority in the Board of Zoning Appeals to vary the application of the Building Code (cf. Matter of Cassety [Dobson], 255 App. Div. 928; Matter of Village of Is. Park v. Bulk Plants, 258 App. Div. 185). In any event, the record discloses that petitioner’s proof was not sufficient to sustain granting of the variance sought and that the action of the Board of Zoning Appeals in denying such relief was neither arbitrary nor capricious. Beldock, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.