Berchielli v. Zoning Bd. of Appeals of Town of Westerlo

Decision Date03 March 1994
PartiesIn the Matter of Louis BERCHIELLI et al., Appellants, v. ZONING BOARD OF APPEALS OF the TOWN OF WESTERLO, Respondent.
CourtNew York Supreme Court — Appellate Division

Kevin J. Engel (John T. Casey Jr., Albany, of counsel), East Greenbush, for appellants.

Hiscock & Barclay (Thomas E. Dolin, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW and YESAWICH, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered April 13, 1993 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review respondent's determination that a certain lot was not subject to zoning requirements.

In 1985, Patricia Camp acquired a 5.2-acre parcel of land in the Town of Westerlo, Albany County. In 1986, Camp conveyed 2.3 acres of her parcel to Martin Perrin and Sandra Perrin, upon which they constructed a residence. In 1987, Camp conveyed an additional 1.98-acre parcel to the Perrins. The parties agree that at the time of the second conveyance, the parcel was subject to the Town of Westerlo Land Subdivision Regulations which provided, inter alia, that "[w]henever any subdivision of land is proposed to be made * * * before any contract for the sale of * * * any lots * * * the subdivider * * * shall apply in writing * * * for approval" (Town of Westerlo Land Subdivision Regulations, art. III, § 1[A]. In order to grant approval, the Town's Planning Board must review the proposed subdivision and insure that any construction is in compliance with any zoning ordinance then in effect (id., at art. V, § 5[A]. At the time of the aforesaid conveyances, there was no minimum lot size requirement in the Town. In 1989, the Town enacted a zoning ordinance which imposed a minimum lot size of three acres for single-family dwelling units.

In 1990, the Perrins applied for a building permit to erect a mobile home on their 1.98-acre parcel, which was denied due to insufficient lot size. The Perrins applied for a variance to respondent, which ultimately determined that a variance was unnecessary because there was no minimum lot size requirement at the time of the conveyance to the Perrins and, therefore, the lot constituted a nonconforming use. Accordingly, the Perrins were determined to be entitled to a building permit and certificate of occupancy.

Petitioners instituted this CPLR article 78 proceeding to annul respondent's determination. Supreme Court held that respondent properly concluded that the zoning regulations did not bar the Perrins' use of the parcel, but did not concur with respondent that it constituted a nonconforming use. Rather, Supreme Court, relying upon Matter of Dittmer v. Epstein, 34 A.D.2d 675, 310 N.Y.S.2d 540, reasoned that prohibiting the Perrins from erecting a mobile home on the parcel constituted an unconstitutional deprivation of property and, accordingly, confirmed the determination.

We agree with petitioners' contention that a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate...

To continue reading

Request your trial
9 cases
  • Town of N. Elba v. Grimditch
    • United States
    • New York Supreme Court — Appellate Division
    • July 2, 2015
    ...cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9 [1988] ; see Matter of Berchielli v. Zoning Bd. of Appeals of Town of Westerlo, 202 A.D.2d 733, 735, 608 N.Y.S.2d 570 [1994], lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415 [1994] ). The neighbors, in turn, were entitled to ......
  • Kinderhook Equities Inc. v. Simonsmeier
    • United States
    • New York Supreme Court — Appellate Division
    • December 2, 1999
    ...Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562; Matter of Berchielli v. Zoning Bd. of Appeals of Town of Westerlo, 202 A.D.2d 733, 734, 608 N.Y.S.2d 570, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d In light of petitioners' recognition that a......
  • Twin Town Little League Inc. v. Town of Poestenkill
    • United States
    • New York Supreme Court — Appellate Division
    • April 23, 1998
    ...Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372; Matter of Berchielli v. Zoning Bd. of Appeals of Town of Westerlo, 202 A.D.2d 733, 735, 608 N.Y.S.2d 570, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415), it maintains that this is one o......
  • Loudon House LLC v. Town of Colonie
    • United States
    • New York Supreme Court — Appellate Division
    • December 31, 2014
    ...or improper, the court is powerless to confirm on grounds it deems adequate or proper” (Matter of Berchielli v. Zoning Bd. of Appeals of Town of Westerlo, 202 A.D.2d 733, 734, 608 N.Y.S.2d 570 [1994], lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415 [1994] ; see Matter of Friends ......
  • Request a trial to view additional results
1 books & journal articles
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...944 (1999) Benchmark Land Co. v. City of Battle Ground , 103 Wash. App. 721, 14 P.3d 172 (2000) Bercielli v. Zoning Bd. of Appeals , 608 N.Y.S.2d 570 (App. Div. 1994) Beshore v. Town of Bel Air , 237 Md. 398, 206 A.2d 678 (1965) Bethlehem Evangelical Lutheran Church v. City of Lakewood , 62......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT