Fulton v. Board of Appeals of Town of Oyster Bay

• Decision Date: 30 April 1956
• Citation: 152 N.Y.S.2d 974
• Parties: Application of Henry FULTON and Carol Fulton, and Bernard A. Shane and Pearl Shane, Petitioners, For a Certiorari Order against The BOARD OF APPEALS OF the TOWN OF OYSTER BAY and the members thereof, E. Floyd Griffin, Daniel Momenrath, Joseph Lippert, Marjorie R. Post, Carl Grunewald, Respondents.
• Court: New York Supreme Court

Page 974

152 N.Y.S.2d 974

Application of Henry FULTON and Carol Fulton, and Bernard A. Shane and Pearl Shane, Petitioners, For a Certiorari Order against The BOARD OF APPEALS OF the TOWN OF OYSTER BAY and the members thereof, E. Floyd Griffin, Daniel Momenrath Joseph Lippert, Marjorie R. Post, Carl Grunewald, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

April 30, 1956.

James M. Hastie, Massapequa, for petitioners.

Michael J. Sullivan, Oyster Bay, for respondents.

HOGAN, Justice.

This is a proceeding brought under Article 78 of the Civil Practice Act to review a determination of the Board of Appeals of the Town of Oyster Bay which resulted in the issuance to one John M. Loeffler of a variance from the following provisions of the Building Zone Ordinance:

'D-4. Front Yard. In 'D' Residence District no building hereafter erected or altered shall have a depth of front yard less than twenty-five (25) feet. If on the same side of the street forty (40) per cent or more of the total street line distance between the two nearest intersecting street lines shall have been improved with two or more buildings, or in the event that building permits shall have been issued therefor, not less than the average depth of front yard as so established by such existing or permitted buildings shall be maintained; provided, however, that any such front yard depth shall not be required to be more than fifty (50) feet.'

'D-5. Corner Lot. In 'D' Residence District, such lot shall have a front yard along each street as is provided in Section D-4.'

It appears that Loeffler owned a corner plot fronting for 90 feet on Fox Boulevard and 80 feet on Baldwin Avenue in Massapequa. He commenced building a one-family house by puring concrete for a foundation a distance of 25 feet from the westerly side of Fox Boulevard. Upon complaint of the Biltmore Shores Civic Association, the Town Building Inspector halted this work because no permit had been obtained. Loeffler then applied for a permit to continue his operation and at that time represented to the Building Department that the prevailing setback on Fox Boulevard was 25 feet, when, in fact, it was 33.8 feet. The permit was issued, apparently without investigation as to the actual facts. The Civic Association made further objection and the permit was withdrawn. Loeffler thereupon filed an application for a variance of the setback requirements on the stated ground that 'Building permit granted in error.'

The Board of Appeals held a public hearing on December 1, 1955, at which it appeared that four property owners on Baldwin Avenue did not object to the encroachment on Fox Boulevard, but that thirty property owners on Fox Boulevard were opposed to the issuance of any variance.

That the Board was aware of the...