Salierno v. Briggs
| Decision Date | 06 June 1988 |
| Parties | In the Matter of Louis J. SALIERNO, et al., Respondents, v. Taylor BRIGGS, et al., Appellants, Samuel D. Bornstein, Intervenor-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jacobowitz and Gubitz, Walden (Donald G. Nichol and Lawrence H. Weintraub, of counsel), for appellants.
Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (David L. Munz, of counsel), for intervenor-appellant.
Richard C. Fields, P.C., Pearl River, for respondents.
Before MOLLEN, P.J., and THOMPSON, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Village of Tuxedo Park (hereinafter the board) dated April 29, 1986, which, after a hearing, denied the petitioners' application for an area variance and a building permit, the appeals are from a judgment of the Supreme Court, Orange County (Patsalos, J.), dated October 14, 1986, which granted the petition, annulled the determination of the board and directed the board to grant the petitioners' application for an area variance and a building permit.
ORDERED that the judgment is affirmed, with costs.
The petitioners are the owners of a certain parcel of real property in the Village of Tuxedo Park. The property contains 2.35 acres of unimproved land and has 166.05 feet of frontage on Tuxedo Lake. Pursuant to the Building Zone Ordinance of the Village of Tuxedo Park § 501(B)(2), building is not permitted on property in this area with less than 250 feet in its narrowest dimension. The petitioners' property falls 83.95 feet short of meeting this requirement.
The subject lot was created by a subdivision in September 1979. Following the petitioners' purchase of the lot in November 1985 the petitioners applied for a building permit. The application was denied because, inter alia, the lot did not meet the minimum dimension requirement for a building lot. The petitioners then applied to the board, arguing, inter alia, that they were entitled to an area variance because strict application of the zoning law would cause them practical difficulties, and, in any event, any variance of the 250-foot minimum dimension requirement that might have been necessary had been implicitly granted by the Planning Board of the Village of Tuxedo Park in 1979, when it approved the subdivision which created the lot.
The board denied the petitioners' application, on the basis that the requested "variance would be deterimental [sic ] to the neighborhood * * * would tend to depreciate the value of the other property in the Village [and would] alter the essential character of the neighborhood". We initially note that the board's decision was conclusory, contains no facts in support of its conclusion and offers no explanation as to how or in what manner the granting of a variance would cause these negative results.
This proceeding was commenced to challenge the board's determination. The Supreme Court, Orange County, granted the petition, annulled the board's determination, and directed the board to grant the petitioners' application for an area variance and a building permit. In doing so the Supreme Court noted that the board's findings with respect to harm to the public are "conclusory with no real support in the record".
The Village authorities then appealed, and the intervenor Samuel Bornstein, whose property abuts the subject lot and who did not seek leave to intervene in the Supreme Court, Orange County, was granted leave to intervene as an appellant on the appeal.
At the outset, we note that the Supreme Court properly rejected the petitioners' contention that a variance from the 250-foot minimum dimension requirement had been implicitly granted by the Planning Board of the Village of Tuxedo Park when it approved the subdivision by which the petitioners' lot was created. Although the applicable enabling statute empowers the Board of Trustees by resolution to authorize modifications in the applicable local zoning laws simultaneously with plat approval (see, Village Law §§ 7-728, 7-738), there is no resolution in the record with regard to this subdivision. Therefore, the dimensional requirements were not waived when the subdivision of the petitioners' land was approved.
The Supreme Court was also correct in its holding that the zoning board's denial of the area variance was arbitrary, capricious and an abuse of discretion ( see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756). It is well established that the critical question in deciding a request for an area variance is " 'whether strict application of the ordinance in a...
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