American Nassau Bldg. Systems, Ltd. v. Press
| Decision Date | 17 October 1988 |
| Citation | 143 A.D.2d 789,533 N.Y.S.2d 316 |
| Parties | AMERICAN NASSAU BUILDING SYSTEMS, LTD., Appellant, v. Donald PRESS, etc., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Allen Michelson, Oceanside, for appellant.
Samuel Ungar, Corp. Counsel, Long Beach (Lawrence N. Rogak, of counsel), for respondents.
Daniel S. Komansky, Hempstead, for John Scaduto, Arthur Zimmerman, Jack Murphy and Harold Yodice, amici curiae.
Before MANGANO, J.P., and BRACKEN, SPATT and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the City of Long Beach, dated April 23, 1987, which denied the petitioner's application for a variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roberto, J.), dated August 19, 1987, which dismissed the proceeding.
ORDERED that the judgment is reversed, on the law with costs, the petition is granted, the respondents' determination is annulled, and the petitioner's application for a variance is granted.
The petitioner, American Nassau Building Systems, Ltd. (hereinafter ANB), is the contract vendee of an undeveloped parcel of land located at the northeasterly end of a private roadway known alternatively as Nappi Drive, Nappi Place and East Bay Drive, in the City of Long Beach. On this parcel ANB proposes to build two wood-frame single-family homes, in full compliance with local zoning laws. The parcel is bounded on the north by Reynolds Channel, and on the east by another waterway known as Sarazen Canal.
The subject property fronts on Nappi Drive, which is approximately 150 feet long and 44 feet wide at its eastern boundary, where ANB's property is located, and 33 feet wide at its western boundary. At its western extremity Nappi Drive crosses Neptune Boulevard, a public street. Nappi Drive is a paved roadway, which has had the benefit of all municipal utilities, including water, sewers, lighting, garbage collection, snow removal, and police and fire protection for 15-25 years. Five single family homes have been built on the drive since the original partition of the property some 25 years ago. All of the parcels fronting on Nappi Drive, including the plot sought to be developed by ANB, enjoy perpetual easements running with the land over the private roadway.
When the Building Commissioner of the City of Long Beach declined to approve ANB's application for a building permit on the ground that no mapped street gives access to the proposed structures, invoking General City Law § 36(1), ANB appealed to the Zoning Board of Appeals of the City of Long Beach (hereinafter Zoning Board), seeking a variance on the grounds of practical difficulty and unnecessary hardship. Following a hearing on March 26, 1987, at which the current residents of Nappi Drive and other neighbors testified that they considered the proposed structures to constitute a hazard to the health, welfare and safety of the community, the Zoning Board denied ANB's application. Thereafter ANB commenced this proceeding pursuant to CPLR 7803(4), requesting that the court declare Nappi Drive to be a public street by prescription or implication, or else to find that ANB enjoyed reasonable access to a mapped street sufficient to satisfy the requirements of General City Law § 36(1). The Supreme court dismissed the petition, declaring that the determination of the Zoning Board had had a rational basis and was supported by substantial evidence.
We disagree.
Section 254 of the Charter of the City of Long Beach provides: "All special and general laws applicable to the village of Long Beach not inconsistent herewith shall remain applicable to the city of Long Beach as though the same were incorporated specifically in this charter."
According to the terms of Village Law § 6-626, with which no provision of the City Charter is inconsistent: "[a]ll lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such." While Nappi Drive is a dead end, and in consequence has not been as busy as a thoroughfare, there is no evidence to suggest that "the public did not have access or was ever barred from using" the subject street (Jakobson v. Chestnut Hill Props., 106 Misc.2d 918, 927, 436 N.Y.S.2d 806).
However, use or potential use by the public of a private road...
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