Wachsberger v. Michalis
| Decision Date | 02 September 1959 |
| Citation | 191 N.Y.S.2d 621,19 Misc.2d 909 |
| Parties | Application of Sidney and Belle WACHSBERGER, Petitioners, For an Order Pursuant to Article 78 of the Civil Practice Act v. Walter G. MICHALIS, Charles Gregory, Kenneth Chave, and William Seiffert, constituting the Board of Zoning Appeals of the Town of Hempstead, Respondents. |
| Court | New York Supreme Court |
Irving J. Berman, New York City, for petitioners.
John A. Morhous, Hempstead, Town Attorney, for respondents.
Robert D. Bell, Wantagh, of counsel.
This Article 78 proceeding is remanded to the Board of Zoning Appeals for further proceedings. According to the petition, petitioners are husband and wife, 58 and 56 respectively, 'semi-retired' and now residing in Far Rockaway. On August 22, 1957, they purchased the land in question in Woodmere for $8,000 under a contract reciting that the premises were subject to zoning restrictions 'which do not prohibit the erection and maintenance of a one or two family dwelling'. The seller had in 1955 obtained a re-zoning from Residence 'B' to Residence 'C'. Residence 'C' zoning permits one or two-family houses and in February, 1956, the seller was issued a permit to erect a two-family house on the premises. The total area of the plot is 11,558 square feet, but in 1956 the Zoning Ordinance required only 1500 square feet per family, or a total of 3000 square feet for a two-family house. On August 13, 1957, nine days before petitioners took title, the ordinance was changed, effective September 9, 1957, to require a minimum of 12,000 square feet for a two-family house. Petitioners had no actual knowledge of the change until their application for a building permit was disapproved on April 10, 1959. Meanwhile, they had contracted for the construction of a $28,000 two-family dwelling. They then applied to the Board of Zoning Appeals for a variance and after a hearing the application was denied in a decision which recited that it was made 'after due consideration of all the statements made to the Board, of evidence received and the Board's inspection of the premises' and gave as the reason for denial that, . The papers submitted to the Board and in this proceeding show that the house proposed to be erected would have the outward appearance of a one family house, that the premises are adjoined on the west by two apartment houses, one of eighteen families, the other of twelve, and that on the south side of West Broadway diagonally opposite the premises are two two-family houses, one erected on a plot 5880 square feet in area and the other 8100 square feet. It is further stated in the petition, although not in the papers presented to the Board, that additional footage cannot be acquired from the owners of land to the east and west. Nothing is said concerning acquisition of such footage from the owners of land to the north.
The application to the Board was grounded on unnecessary hardship and the reason given in its decision, as well as the arguments made in its brief, show that the Board was applying the rule of Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851. This was error since what is here involved is not a change in use but in area, and the rule clearly is that, 'A change of area may be granted on the ground of practical difficulties alone, without considering whether or not there is an unnecessary hardship. * * * in the absence of statutory provision to the contrary, special hardship need not be established as a...
To continue reading
Request your trial
-
Sasso v. Osgood
...variance, the courts began to develop a list of considerations to be applied under Town Law former § 267 (see, Matter of Wachsberger v. Michalis, 19 Misc.2d 909, 191 N.Y.S.2d 621, affd. 18 A.D.2d 921, 238 N.Y.S.2d 309; see also, Matter of Friendly Ice Cream Corp. v. Barrett, 106 A.D.2d 748,......
-
Cohalan v. Schermerhorn
...(Village of Bronxville v. Francis, 1 A.D.2d 236, 150 N.Y.S.2d 906). The standards set forth by Justice Meyer in Wachsberger v. Michalis, 19 Misc.2d 909, 191 N.Y.S.2d 621, aff'd 18 A.D.2d 921, 238 N.Y.S.2d 309, continue to prevail as a principal guide for zoning boards and courts alike in ma......
-
Fuhst v. Foley
...249, 270 N.Y.S.2d 569, 217 N.E.2d 633, Supra (80-foot difference in grade between front and rear of lot); Matter of Wachsberger v. Michalis, 19 Misc.2d 909, 19 N.Y.S.2d 621, affd. 18 A.D.2d 921, 238 N.Y.S.2d 309 (undersized plot); Matter of Feldman v. Nassau Shores Estates, 12 Misc.2d 607, ......
-
In re Stadsvold
...and considering all of the above factors the interests of justice will be served by allowing the variance. Wachsberger v. Michalis, 19 Misc.2d 909, 191 N.Y.S.2d 621, 624 (1959), aff'd, 18 A.D.2d 921, 238 N.Y.S.2d 309, 309 (1963).4 Minnesota enacted section 394.27 in 1959 but did not adopt a......