Shields v. Zoning Bd. of Appeals of Town of Philipstown

• Decision Date: 20 August 1990
• Citation: 559 N.Y.S.2d 580,164 A.D.2d 909
• Parties: Frank R. SHIELDS, as Administrater of the Estate of Edythe Shields, Petitioner-Respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF PHILIPSTOWN, et al., Respondents-Appellants, Lawrence Merson, et al., Intervenors-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 580

559 N.Y.S.2d 580

164 A.D.2d 909

Frank R. SHIELDS, as Administrater of the Estate of Edythe

Shields, Petitioner-Respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF PHILIPSTOWN, et al.,

Respondents-Appellants,

Lawrence Merson, et al., Intervenors-Appellants.

Supreme Court, Appellate Division,

Second Department.

Aug. 20, 1990.

John A. Porco, P.C., Carmel (Robert C. Lusardi, of counsel), for intervenors-appellants.

Richard I. Goldsand, Brewster, for respondents-appellants.

Bolger, Hinz & Zutt, P.C., Putnam Valley (William A. Zutt, of counsel), for petitioner-respondent.

Before THOMPSON, J.P., and BROWN, KUNZEMAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Zoning Board of Appeals of the Town of Philipstown dated May 28, 1988, which denied the petitioner's application for an area variance, the appeals are from so much of an order of the Supreme Court, Putnam County (Dickinson, J), dated January 25, 1989, as, upon reargument, adhered to its original determination in a judgment of the same court, dated October 27, 1988, which granted the petition, and annulled the determination.

ORDERED that the order is reversed insofar as appealed from, on the law, the judgment granting the petition is vacated, the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded the respondents-appellants and the intervenors-appellants, appearing separately and filing separate briefs.

"In order to justify the granting of an area variance, the applicant bears the burden of establishing that strict compliance with the zoning law will cause 'practical difficulties' (see, Matter of Fuhst v Foley, 45 NY2d 441 [410 N.Y.S.2d 56, 382 N.E.2d 756]; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135 , affd 67 NY2d 702 [499 N.Y.S.2d 927, 490 N.E.2d 846]" (Matter of Wolfson v. Curcio, 150 A.D.2d 586, 587, 541 N.Y.S.2d 243). The justification offered by the original petitioner Edythe Shields, now deceased, in support of the application for an area variance, i.e., that subdivision of the property was necessary so that a separate residence could be built to house a relative who could care for Edythe Shields and her husband, was insufficient to establish "that as a practical matter [the petitioner could not] utilize [the] property or a structure located thereon 'without coming into...