Tallini v. Rose, 208 A.D.2d 546, 617 N.Y.S.2d 34 (N.Y.A.D. 2 Dept., Oct 03, 1994) (NO. 93-03318)

Supreme Court, Appellate Division, Second Department, New York.
In the Matter of Americo TALLINI, Respondent,v.Henry W. ROSE, et al., Appellants.

Oct. 3, 1994.

 Petitioner brought Article 78 proceeding to review determination of town zoning board of appeals, which denied petitioner's application for variance. The Supreme Court, Nassau County, McCabe, J., entered judgment directing that building permit be issued to petitioner.   Zoning board appealed.   The Supreme Court, Appellate Division, held that zoning board unreasonably interpreted town code.
 Affirmed.

West Headnotes
[1] Zoning and Planning  231414k231 Most Cited Cases
Although interpretation of zoning ordinance by zoning board is entitled to deference, its interpretation is not entitled to unquestioning judicial deference, since ultimate responsibility of interpreting law is with court.
[2] Zoning and Planning  231414k231 Most Cited Cases
[2] Zoning and Planning  608.1414k608.1 Most Cited Cases
Where interpretation of zoning ordinance is irrational or unreasonable, zoning board's determination will be annulled.
[3] Zoning and Planning  252414k252 Most Cited Cases
In denying petitioner's application for variance, town zoning board of appeals unreasonably interpreted town code to require that building constructed on petitioner's lot be set back ten feet from zoning line which divided business- zoned portion of property from that zoned residential, where town code required that buildings in business district provide ten-foot rear yard setback from lot line, with "rear yard" being defined in code as open space running along rear yard of lot;  petitioner's lot was irregularly shaped corner lot located primarily in business zoned area, entire structure built by petitioner lay within business district, and building was set back at least ten feet from lot line.  Hempstead, N.Y., Code Art. 1, §  1;  Art. XVI, §  203. **35 Ronald J. Levinson, Town Atty., Hempstead (Charles S. Kovit, of counsel), for appellants.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Burton Aronson, of counsel), for respondent.

 Before BRACKEN, J.P., and BALLETTA, COPERTINO and HART, JJ.


 *546 MEMORANDUM BY THE COURT.
 In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Hempstead, dated March 4, 1992, which denied the petitioner's application for a variance, the Zoning Board ofAppeals of the Town of Hempstead appeals from so much of a judgment of the Supreme Court, Nassau County (McCabe, J.), dated January 14, 1993, as directed that a building permit be issued to the petitioner.
 ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.
 [1][2] Although the interpretation of a zoning ordinance by a zoning board is entitled to deference, its interpretation is "not *547 entitled to unquestioning judicial deference, since the ultimate responsibility of interpreting the law is with the court" (Matter of Exxon Corp. v. Board of Stds. & Appeals, 128 A.D.2d 289, 296, 515 N.Y.S.2d 768;  see also, Matter of Chrysler Realty Corp. v. Orneck, 196 A.D.2d 631, 601 N.Y.S.2d 194).   Thus, where the interpretation of a zoning ordinance is irrational or unreasonable, a zoning board's determination will be annulled (see, Matter of KMO-361 Realty Assocs. v. Davies, 204 A.D.2d 547, 611 N.Y.S.2d 660).
 [3] The Supreme Court properly determined that the Zoning Board of Appeals unreasonably interpreted the Town Code to require that the building constructed on the petitioner's lot must be set back 10 feet from the line which divides the portion of the property which is zoned for business from the portion of the property which is zoned residence "C".   The petitioner owns an irregularly- shaped corner lot which is located primarily in an area zoned for business, although a small portion of the lot is located in an area zoned residence "C". Town of Hempstead Code article XVI, §  203, requires that buildings in the business district provide a 10-foot rear yard setback from the lot line.  "Rear yard" is defined in Town of Hempstead Code article I, §  1 as an open space which runs along the rear yard of the lot.
 The petitioner partially constructed a building on his lot.   The rear wall of the building sits along the zoning line that divides the lot into business and residential districts.   The entire structure lies within the business district and the building is set back at least 10 feet from the lot line.   Because the structure comports with the plain language of the Town Code, the Supreme Court properly determined that the appellant unreasonably interpreted the Town Code to require that the building must be set back 10 feet from the zoning line.
617 N.Y.S.2d 34, 208 A.D.2d 546
END OF DOCUMENT