Johnson v. Moore
| Decision Date | 12 June 1961 |
| Citation | 216 N.Y.S.2d 740,13 A.D.2d 984 |
| Parties | Application of Roy S. JOHNSON, Petitioner-Respondent, v. Harold A. MOORE and others, comprising the Zoning Board of Appeals of the Village of Ardsley, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Barry Golomb, Village Counsel, New York City, for appellants.
Gottlieb, Konove & Zeck, New York City, Robert Konove, New York City, of counsel, for respondent.
Before NOLAN, P. J., and UGHETTA, CHRIST, PETTE and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In a proceeding under article 78 of the Civil Practice Act, the Zoning Board of Appeals of the Village of Ardsley appeals from an order of the Supreme Court, Westchester County, entered March 7, 1960, after a trial before an Official Referee, which vacated its determination denying the petitioner's application for a variance of the local zoning regulation, and which directed it to grant such variance.
Order reversed on the law and the facts, with costs, and determination of the Board of Appeals, dated May 21, 1957, confirmed. Findings of fact inconsistent herewith or with the findings by the Board of Appeals are reversed.
Petitioner, an architect, was an officer of a corporate developer which proposed to develop property shown on a map which has been included in the record on this appeal. The map approved by the Planning Board of the Village in December, 1954, shows as part of the proposed development a parcel of land approximately 50 feet by 100 feet designated as parcel 8A. Adjacent thereto is a parcel of land designated as parcel 8, comprising about two and one-half acres. Parcel 8A is separated from the balance of the property by a dotted line. Lots 8 and 8A were conveyed to the petitioner by the corporate developer, and petitioner thereafter sold the area designated 8, retaining for himself only the area marked 8A. At the time of such sale, and thereafter, when petitioner applied for a building permit for lot 8A, the Zoning Ordinance required that a lot on which a residence was to be erected should have a minimum area of 7500 square feet. Accordingly, the building permit was denied. Petitioner made application to the Board of Appeals for a variance, which was denied.
Petitioner claimed that the Planning Board had approved lot 8A as a building lot when it approved the subdivision map. The Board of Appeals, on the basis of testimony before it, found: (1) that the Planning Board did not regard parcel 8A as a separate building lot; (2) that at the time when petitioner owned both parcels 8 and 8A and when he sold parcel 8, he could have retained sufficient property from parcel 8 to have left him the owner of an area much in excess of 7500 square feet, and could have conveyed a similar area to the purchaser of parcel 8; (3) that at the time when the Planning Board approved the development map, it was not authorized to make any changes or amendments to the zoning regulations; (4) that petitioner knew, or should have known, of such lack of authority; (5) that when he conveyed parcel 8, he left parcel 8A as a substandard lot; and (6) that any hardship which resulted was self-created.
The learned Referee, on the other hand, held: (a) that the Planning Board had created the substandard area of parcel 8A by its...
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