Supreme Court, Appellate Division, Second Department, New York.
In the Matter of Frederick M. FREESE, et al., Appellants,
v.
David LEVITAN, etc., et al., Respondents.
Feb. 24, 1986.
Property owners brought Article 78 proceeding to review determination of zoning
board of appeals that granted application for area variances for adjacent
property. The Supreme Court, Nassau County, McCaffrey, J., dismissed the
petition, and property owners appealed. The Supreme Court, Appellate Division,
held that: (1) zoning board's grant of variances would be sustained, and (2)
fact that part of subdivider's practical difficulties in complying with zoning
ordinances had been created by desire to maximize number of buildable plots was
one factor that could be considered in area variance case, but was not by itself
determinative, and did not foreclose approval of area variance.
Affirmed.
West Headnotes
[1] Zoning and Planning 542.1
414k542.1 Most Cited Cases
(Formerly 414k542)
Determination of zoning board of appeals to grant area variances would be
sustained, where board granted variances after a careful review of the evidence,
its determination was not arbitrary, illegal, or an abuse of discretion, and the
decision had a rational basis and was supported by substantial evidence in the
record.
[2] Zoning and Planning 503
414k503 Most Cited Cases
Fact that practical difficulties in complying with zoning ordinance is created
by subdivider's desire to maximize the number of buildable plots is one factor
that may be considered in determining whether to grant area variance, but is not
determinative by itself, and does not foreclose zoning board approval of area
variance.
**129 Costigan, Hyman, Hyman & Martone, P.C., Mineola (Dale Allinson, on
brief), for appellants.
Farrell, Fritz, Caemmerer, Cleary, Baronsky & Armentano, P.C., Mineola (Igor
Bilewich and Dolores Fredrich, of counsel), for respondent Members of the Bd. of
Zoning Appeals of the Inc. Village of Roslyn Harbor.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum, of
counsel), for respondent David Minkin.
Before LAZER, J.P., and GIBBONS, THOMPSON and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the
respondent zoning board of appeals, dated June 6, 1984, which, subject to
specified conditions of the Incorporated Village of Roslyn Harbor granted the
application of the respondent David Minkin for certain variances, the
petitioners appeal from a judgment of the Supreme Court, Nassau County
(McCaffrey, J.), dated December 12, 1984, which dismissed the petition.
Judgment affirmed, with one bill of costs to respondents appearing separately
and filing separate briefs.
David Minkin sought area variances with respect to a proposed subdivision that
had been conditionally approved by the village planning board. To obtain area
variances he presented considerable evidence that compliance with the zoning
ordinance will result in practical difficulties (see, Matter of Vil. of
Bronxville v. Francis, 1 A.D.2d 236, 238, 150 N.Y.S.2d 906, affd. 1 N.Y.2d 839,
153 N.Y.S.2d 220, 135 N.E.2d 724; Matter of Hoffman v. Harris, 17 N.Y.2d 138,
144, 269 N.Y.S.2d 119, 216 N.E.2d 326; Dauernheim, Inc. v. Town Bd. of Town of
Hempstead, 33 N.Y.2d 468, 471, 354 N.Y.S.2d 909, 310 N.E.2d 516; Matter of
Cowan v. Kern, 41 N.Y.2d 591, 598, 394 N.Y.S.2d 579, 363 N.E.2d 305; Matter of
Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598, 606, 403 N.Y.S.2d
193, 374 N.E.2d 105). The respondent zoning board of appeals found that "the
exceptional topography of the property in question and the irregular
configuration of the property has created many of the hardships and practical
difficulties experienced by the Applicant thereby necessitating the variances
sought herein". In dismissing the CPLR article 78 petition of the appellants
(adjacent property owners), Special Term concluded that the board's decision
"has a reasonable basis and is supported by substantial evidence". We agree.
[1][2] The board granted the variances after a careful review of *806 the
evidence. Its determination was not arbitrary, illegal, or an abuse of
discretion and the evidence shows that the decision has a rational basis and is
supported by substantial evidence in the record (see, Matter of Cowan v. Kern,
supra ). Although the petitioners contend that Minkin's difficulties were
self-created, in that their source was his desire to maximize the number of
buildable plots, we find that the record does not sustain that claim. In any
event, that factor, in this area variance case, "is one factor that may be
considered, but by itself, is not determinative" (Conley v. Town of Brookhaven
Zoning Bd. of Appeals, 40 N.Y.2d 309, 315, 386 N.Y.S.2d 681, 353 N.E.2d 594) and
"does not foreclose board approval of an area variance" (Matter of National
Merritt, Inc. v. Weist, 41 N.Y.2d 438, 442, 393 N.Y.S.2d 379, 361 N.E.2d 1028).
499 N.Y.S.2d 128, 117 A.D.2d 805
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.In the Matter of Frederick M. FREESE, et al., Appellants,v.David LEVITAN, etc., et al., Respondents.
Feb. 24, 1986.
Property owners brought Article 78 proceeding to review determination of zoning board of appeals that granted application for area variances for adjacent property. The Supreme Court, Nassau County, McCaffrey, J., dismissed the petition, and property owners appealed. The Supreme Court, Appellate Division, held that: (1) zoning board's grant of variances would be sustained, and (2) fact that part of subdivider's practical difficulties in complying with zoning ordinances had been created by desire to maximize number of buildable plots was one factor that could be considered in area variance case, but was not by itself determinative, and did not foreclose approval of area variance.
Affirmed.
West Headnotes
[1] Zoning and Planning 542.1414k542.1 Most Cited Cases (Formerly 414k542)
Determination of zoning board of appeals to grant area variances would be sustained, where board granted variances after a careful review of the evidence, its determination was not arbitrary, illegal, or an abuse of discretion, and the decision had a rational basis and was supported by substantial evidence in the record.
[2] Zoning and Planning 503414k503 Most Cited Cases
Fact that practical difficulties in complying with zoning ordinance is created by subdivider's desire to maximize the number of buildable plots is one factor that may be considered in determining whether to grant area variance, but is not determinative by itself, and does not foreclose zoning board approval of area variance. **129 Costigan, Hyman, Hyman & Martone, P.C., Mineola (Dale Allinson, on brief), for appellants.
Farrell, Fritz, Caemmerer, Cleary, Baronsky & Armentano, P.C., Mineola (Igor Bilewich and Dolores Fredrich, of counsel), for respondent Members of the Bd. of Zoning Appeals of the Inc. Village of Roslyn Harbor.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum, of counsel), for respondent David Minkin.
Before LAZER, J.P., and GIBBONS, THOMPSON and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent zoning board of appeals, dated June 6, 1984, which, subject to specified conditions of the Incorporated Village of Roslyn Harbor granted the application of the respondent David Minkin for certain variances, the petitioners appeal from a judgment of the Supreme Court, Nassau County (McCaffrey, J.), dated December 12, 1984, which dismissed the petition.
Judgment affirmed, with one bill of costs to respondents appearing separately and filing separate briefs.
David Minkin sought area variances with respect to a proposed subdivision that had been conditionally approved by the village planning board. To obtain area variances he presented considerable evidence that compliance with the zoning ordinance will result in practical difficulties (see, Matter of Vil. of Bronxville v. Francis, 1 A.D.2d 236, 238, 150 N.Y.S.2d 906, affd. 1 N.Y.2d 839, 153 N.Y.S.2d 220, 135 N.E.2d 724; Matter of Hoffman v. Harris, 17 N.Y.2d 138, 144, 269 N.Y.S.2d 119, 216 N.E.2d 326; Dauernheim, Inc. v. Town Bd. of Town of Hempstead, 33 N.Y.2d 468, 471, 354 N.Y.S.2d 909, 310 N.E.2d 516; Matter of Cowan v. Kern, 41 N.Y.2d 591, 598, 394 N.Y.S.2d 579, 363 N.E.2d 305; Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598, 606, 403 N.Y.S.2d 193, 374 N.E.2d 105). The respondent zoning board of appeals found that "the exceptional topography of the property in question and the irregular configuration of the property has created many of the hardships and practical difficulties experienced by the Applicant thereby necessitating the variances sought herein". In dismissing the CPLR article 78 petition of the appellants (adjacent property owners), Special Term concluded that the board's decision "has a reasonable basis and is supported by substantial evidence". We agree.
[1][2] The board granted the variances after a careful review of *806 the evidence. Its determination was not arbitrary, illegal, or an abuse of discretion and the evidence shows that the decision has a rational basis and is supported by substantial evidence in the record (see, Matter of Cowan v. Kern, supra ). Although the petitioners contend that Minkin's difficulties were self-created, in that their source was his desire to maximize the number of buildable plots, we find that the record does not sustain that claim. In any event, that factor, in this area variance case, "is one factor that may be considered, but by itself, is not determinative" (Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 315, 386 N.Y.S.2d 681, 353 N.E.2d 594) and "does not foreclose board approval of an area variance" (Matter of National Merritt, Inc. v. Weist, 41 N.Y.2d 438, 442, 393 N.Y.S.2d 379, 361 N.E.2d 1028).
499 N.Y.S.2d 128, 117 A.D.2d 805
END OF DOCUMENT