McGlasson Realty, Inc. v. Town of Patterson Bd. of Appeals

• Decision Date: 16 December 1996
• Citation: 234 A.D.2d 462,651 N.Y.S.2d 131
• Parties: In the Matter of McGLASSON REALTY, INC., Respondent, v. TOWN OF PATTERSON BOARD OF APPEALS, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 131

651 N.Y.S.2d 131

234 A.D.2d 462

In the Matter of McGLASSON REALTY, INC., Respondent, v. TOWN OF PATTERSON BOARD OF APPEALS, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 16, 1996.

Stephens Hogan & Rossi, Brewster, (Willis H. Stephens, Jr., of counsel; James W. Borkowski on the brief), for appellants.

Carl F. Lodes, Carmel, for respondent.

Before MILLER, J.P., and THOMPSON, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Patterson Board of Appeals dated December 14, 1994, which, after a hearing, denied the petitioner's application for an area variance, the appeal is from a judgment of the Supreme Court, Putnam County (Hickman, J.), entered December 4, 1995, which granted the petition. Justice Thompson has been substituted for the late Justice Hart (see, 22 NYCRR 670.1[c] ).

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The denial by the Town of Patterson Board of Appeals (hereinafter the Board) of the petitioner's request for an area variance was a reasonable exercise of its discretion and was supported by the record (see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924; Matter of Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756). Contrary to the petitioner's contention, the Board properly construed its zoning ordinance to find that, by reason of common ownership, the subject parcel had merged with the adjoining parcel prior to the time it was purchased by the petitioner and therefore was no longer a separate buildable lot (see, Matter of Khan v. Zoning Bd. of Appeals of Vil. of Irvington, 87 N.Y.2d 344, 639 N.Y.S.2d 302, 662 N.E.2d 782; Matter of Vollet v. Schoepflin, 28 A.D.2d 706, 280 N.Y.S.2d 950).

While the petitioner's application for a building permit was pending, the Town of Patterson Building Inspector made verbal representations to the petitioner that the permit would issue at a later date. The permit was denied after the closing date. Contrary to the petitioner's contention, its reliance upon the misinformed statements of the Building Inspector does not preclude a finding of self-created hardship (see, Town Law § 267-b[3][b][5] ). A prospective purchaser of property is chargeable with knowledge of the applicable restrictions of the zoning law and is bound by them and by the facts and circumstances which can be learned by the exercise of reasonable diligence, even where there are harsh results (see, Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 525 N.Y.S.2d 176, 519 N.E.2d 1372). The petitioner, a seasoned real estate professional, failed to exercise the reasonable diligence which would have readily...