The opinion
Benjamin, J. (dissenting).
Section 504.3 of the New Rochelle Building Code prohibits the use of a frame structure as a place of public assemblage or a place of worship. Section 109.1 of that code empowers the Board of Standards and Appeals to grant variances “ when there are practical difficulties involved in carrying out structural or mechanical provisions of this Code.”
The building here involved is a frame structure and the variance originally granted by the Board would have permitted its use as a place of worship in violation of section 504.3. Clearly, the prohibition against use of a frame building (neither fireproof nor fire-resistant) as a place of worship or public assemblage was aimed at public safety and the protection of gatherings of people from the hazards of fire in a highly flammable structure. Clearly, this prohibition involves a much greater peril to public safety and welfare than the mere “ structural or mechanical ” requirements of the code which the Board is authorized to vary. No matter what modifications of the building were required by the Board as a condition for the grant of the subject variance, it would still remain a flammable frame building and a danger to public safety if used as a place of worship wherein groups of people would congregate.
In my view, the prohibition against use of a frame building as a place of worship is much more than a “ structural ” requirement of the code which the Board can vary. It is a flat outlawing of such use, which the Board may not permit to be violated through the device of a variance. Hence, the original grant of a variance for such use was beyond the Board’s jurisdiction; the Board consequently had the power thereafter to *56 rescind that variance; and its determination to rescind was proper.
Accordingly, the Special Term correctly denied the petition and its judgment should be affirmed.
Munder, Acting P. J., and Martuscello, J., concur with Shapiro, J.; Benjamin, J., dissents and votes to affirm, in an opinion, in which Christ, J., concurs.
Judgment reversed, on the law, without costs, petition granted; determination of respondent Board of Standards and Appeals, dated August 24,1971, annulled; and respondent Building Regulations Administrator directed to issue a certificate of occupancy to petitioner.