113 Hillside Ave. Corp. v. Zaino

• Decision Date: 25 November 1970
• Citation: 27 N.Y.2d 258,317 N.Y.S.2d 305,265 N.E.2d 733
• Parties: , 265 N.E.2d 733 In the Matter of 113 HILLSIDE AVENUE CORP., Respondent, v. Lawrence F. ZAINO et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 305

317 N.Y.S.2d 305

27 N.Y.2d 258, 265 N.E.2d 733

In the Matter of 113 HILLSIDE AVENUE CORP., Respondent, v. Lawrence F. ZAINO et al., Appellants.

Court of Appeals of New York.

Nov. 25, 1970.

Robert D. Kops, Mineola, for appellants.

Milton Pinkus, Hempstead, for respondent.

FULD, Chief Judge.

The petitioner-respondent, 113 Hillside Avenue Corporation, owns a vacant lot (Lot 14) in a Residence 'A' zone of the Village of Westbury. Residential zoning requirements call for a minimum area of 7,500 square feet, a minimum front yard depth of 30 feet, and a minimum street frontage of 75 feet. The subject parcel is bordered on three sides by municipally-owned property and on the fourth side by two other plots (Lots 15 and 16). It bears some resemblance to a 'pot handle,' with an area of about 13,600 square feet, well above the required minimum, but with a street frontage of only 25 feet. This frontage fails to satisfy the street and the front yard depth requirements.

The subject parcel was originally part of a Single larger residential plot which the corporate petitioner's vendor--a brother of a half owner of the corporation--had acquired in June, 1965. He subdivided the original parcel into three smaller lots and conveyed the subject parcel (Lot 14), along with an adjoining lot (Lot 15), to the petitioner in August, 1965; Lot 16 was sold to a third party. Both Lots 15 and 16 satisfied all the requirements prescribed by the zoning ordinance.

The petitioner obtained building permits for each of its two lots and proceeded to construct a residence on Lot 15. When the building was completed on that plot it was sold, and some time later the Village, through its Board of Trustees, revoked the petitioner's building permit for Lot 14. In an action brought by the petitioner for a declaratory judgment that the revocation was improper, the Appellate Division--modifying the trial court's judgment dismissing the complaint--held that the application for the permit did not conform to the requirements of the Village ordinance and that, therefore, the defendants 'were entitled to a declaration that (such) permit was invalid.' (113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558.)

The corporation then adopted a different course; it applied to the Village's Board of Appeals for substantial street frontage and yard variances in order to allow it to build on Lot 14. Although the board denied the application, the court at Special Term (William R. Brennan, Jr., J.) annulled that determination and directed that the variances be granted. The Appellate Division, 33 A.D.2d 1046, 308 N.Y.S.2d 748, however, reversed the resulting judgment and remanded the matter to the board for a new hearing, 'at which the proof may be considered in the light of the principles of law enunciated in Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272'--which, it noted, had been decided after Special Term had handed down its decision. (Matter of 113 Hillside Ave. Corp. v. Zaino, 30 A.D.2d 559, 291 N.Y.S.2d 188.)

Following this new hearing, the variance application was again denied by the Board of Appeals on the grounds that to grant it (1) 'would change the essential character of the area', (2) would impair the 'public health, safety and welfare' and (3) would allow the petitioner to benefit from its own deliberate act of effecting the 'split-off.' On this occasion, too, the court at Special Term (Widlitz, J.) annulled the determination and directed the board to grant the requested variances. A divided Appellate Division affirmed that disposition; the justices who dissented voiced the opinion that the evidence disclosed 'a radically different factual setting' from that in the Fulling case (21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, Supra) and fully supported the board's action.

It is settled that the courts will not interfere with the determination made by a zoning board--or other comparable administrative body--which denies a requested area variance where, as here, the substandard condition resulted from the owner's own decision to subdivide his property in such a way as to create one or more nonconforming plots, ¹ and we interpolate to state that nothing decided or said in Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, Supra changed or modified this settled principle. In point of fact, we recognized and reiterated the rule as recently as last July in Contino v. Incorporated Vil. of Hempstead, 27 N.Y.2d 701, 314 N.Y.S.2d 15, 262 N.E.2d 221, revg. on dissenting opn. at App.Div., 33 A.D.2d 1043, 309 N.Y.S.2d 130; in reversing the Appellate Division, we adopted its dissenting opinion which, in part, recited that (33 A.D.2d, at p. 1044, 309 N.Y.S.2d, at p. 131.)

'even in area variance cases, it is not an unreasonable exercise of discretion to deny permission to build on substandard plots where, as in the instant case, the substandard condition results from acts of an owner of a conforming plot in so subdividing his holding as to create one or more parts of insufficient area'.

And in Matter of Weinstein v. Planning Bd. of Vil. of Great Neck, 21 N.Y.2d 1001, 290 N.Y.S.2d 922, 238 N.E.2d 325, affg. 28 A.D.2d 862, 281 N.Y.S.2d 148, which closely resembles the present case, we sustained the denial of a proposed subdivision map submitted by the owner on the ground that he had subdivided a larger parcel in such a way as to create four smaller plots, one of which failed to conform to zoning specifications. Here, too, the original parcel could have been subdivided in accordance with the Village's zoning requirements simply by creating two plots. Moreover, if the petitioner...