Zwitzer v. Zoning Bd. of Appeals of Town of Canandaigua

• Decision Date: 06 July 1989
• Citation: 545 N.Y.S.2d 81,543 N.E.2d 724,74 N.Y.2d 756
• Parties: , 543 N.E.2d 724 In the Matter of Richard D. ZWITZER et al., Respondents, v. ZONING BOARD OF APPEALS OF the TOWN OF CANANDAIGUA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 81

545 N.Y.S.2d 81

74 N.Y.2d 756, 543 N.E.2d 724

In the Matter of Richard D. ZWITZER et al., Respondents, v. ZONING BOARD OF APPEALS OF the TOWN OF CANANDAIGUA, Appellant.

Court of Appeals of New York.

July 6, 1989.

[74 N.Y.2d 757] A. Paul Britton, Rochester, and Susan A. Roberts, Fairport, for appellant.

Thomas G. Collins, Rochester, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 144 A.D.2d 1023, 534 N.Y.S.2d 298, should be affirmed, with costs.

We agree, for so much of the reasons stated in the majority memorandum of the Appellate Division, that the Board of Zoning Appeals lacked a rational basis for granting only a partial 4% area variance rather than the entreatied 7% one. Petitioner property owner, having established to the satisfaction of the Canadaigua Zoning Board of Appeals that he would suffer significant economic injury by the strict application of the zoning ordinance in this pertinent respect, was entitled to the area variance as sought because, there being no material difference between it and the granted reduced one, the Board's action was arbitrary and capricious. The annulment of the Board's determination by the judgment of the Supreme Court, affirmed by the Appellate Division, is within the customary and narrow judicial review function governing such matters.

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK and BELLACOSA, JJ., concur.

Order affirmed, with costs, in a memorandum.