Siegel v. Tange
| Decision Date | 23 January 1978 |
| Citation | 61 A.D.2d 57,401 N.Y.S.2d 269 |
| Parties | In the Matter of Harry SIEGEL, Respondent, v. Richard TANGE et al., constituting the Zoning Board of Appeals of the Village of Otisville, Orange County, New York, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Samuel W. Eager, Jr., Middletown, for appellants.
Jacobowitz & Gubits, Walden (John H. Thomas, Jr., Walden, of counsel), for respondent.
Before TITONE, J. P., and SUOZZI, COHALAN and HAWKINS, JJ.
Petitioner acquired a parcel of property which comprised six lots on the property subdivision map on September 22, 1966, a year before the enactment of the village's subdivision ordinance and two years before the enactment of the Village Zoning Ordinance.
On October 27, 1966 petitioner obtained a mortgage as to one of the lots, lot 1. That mortgage was thereafter foreclosed and title vested in a third party. In May, 1973, petitioner conveyed lots 2 and 5 to Serden Land Development, Inc., a corporation in which he had an interest.
The subject of this proceeding, lots 3 and 4, are adjoining lots. A single family residence was built on each of those lots, as well as on lots 2 and 5, many years prior to the enactment of the Zoning Ordinance of the Village of Otisville. Moreover, the boundary dividing line between the Village of Otisville and the Town of Mount Hope passes through each of the two subject houses, and each lot, therefore, is partly in the town and partly in the village.
During the month of July, 1973 petitioner applied to the Village Building Inspector for a permit to make repairs and improvements to the dwellings on lots 3 and 4. By letter dated September 26, 1973, petitioner was advised by the Village Building Inspector, that prior to any action by his office, petitioner was obliged to make application "to the planning board for their approval and recommendation". The subdivision regulations of the Village of Otisville, adopted in 1967, require that the approval of the Village Planning Board be obtained prior to the subdivision of any parcel of land with or without streets into two or more lots.
Petitioner eventually filed his subdivision map with the Village Planning Board, but before gaining the latter's approval or disapproval of the subdivision, petitioner applied in early January, 1974 to the Village Zoning Board of Appeals for necessary area variances so that the two lots, and the dwellings thereon, could be separated in ownership and eventually sold as two distinct pieces of property.
During the pendency of that application before the Village Zoning Board of Appeals, the Village Board sent a letter to the petitioner on March 1, 1974, with copies to the Village Planning Board and Village Zoning Board of Appeals, advising him that the village would permit extension of water mains and water service to the subject premises upon certain conditions, including approval of petitioner's application before the Village Planning Board.
Despite the fact that petitioner never obtained any determination from the Village Planning Board, either approving or disapproving his subdivision, the respondent Village Zoning Board of Appeals conducted hearings on petitioner's application for an area variance and originally denied the application in late June, 1974. Petitioner instituted an article 78 proceeding to review that denial and, pursuant to an order of the Special Term dated April 10, 1975, a new hearing was ordered. After that second hearing, the Village Zoning Board of Appeals again denied the application for the area variance on October 17, 1975. Petitioner then instituted this proceeding to review the latter determination of the Zoning Board of Appeals.
Although the Village Zoning Board, in its answer, did not mention that the two lots were partly in the town, it did allege, in the second...
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