24 Misc. 2d 823 | N.Y. Sup. Ct. | 1960
By this article 78 proceeding petitioner, the contract vendee of a corner 40 feet by 100 feet plot located in the Village of Málveme, seeks an order annulling
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“ (c) Exempt a proposed building, either in whole or in part from front yard requirements. This relief shall, however, be granted only in cases where the proposed building adjoins on either or both sides of existing buildings that do not conform to the minimum setback line.”
The ordinance was adopted in 1932. At that time the subject parcel was owned by Málveme Estates, Inc., and the adjoining 40 feet by 100 feet parcel was. owned by Harriet Hughes. Both parcels continued in single and separate ownership until December 27, 1948. At that time Edward J. Henry became the owner of both, and they have continued in common ownership and use to petitioner’s vendor, who has contracted to sell the subject parcel of vacant land to petitioner and to sell the adjoining improved parcel to a third person.
The board denied petitioner’s application after a hearing, but neither the minutes of that hearing nor the respondents’ answer and return herein set forth any findings from which the court can determine whether the board acted in accordance with the standards prescribed by the ordinance. The matter must, therefore, be remanded to the board for the holding of a further hearing and the making of findings based on the evidence and which are susceptible of review as to the sufficiency of the sup
The motion by which the application was denied appears to have been based on the fact that the parcel has been held since December 27, 1948 in common ownership with the adjoining parcel, and the briefs of the parties have argued only that question. As indicated by the italicized portion of section 505, however, the special exception provision of the ordinance relates to any parcel held in separate ownership at the time the ordinance became effective. 1 ‘ Regulations limiting the use of property must be strictly construed, and if there is any doubt as to their meaning it must be resolved in favor of the property owner”. (Matter of Turiano v. Gilchrist, supra, p.954.) This is not the case of an ordinance, such as that considered in Matter of Creamer v. Young (16 Misc 2d 676), which contains the further condition that the parcel in question not come into common ownership after the effective date of the ordinance. (See Matter of Cabral v. Young, 14 Misc 2d 550.) Since the subject parcel meets the requirement of the ordinance, the board had no authority to deny the application solely because of the later common ownership.
On remand, the board must determine whether a front yard decrease on one side of the lot should be authorized under the standards set up by section 1101 of the ordinance. Should it determine that the application should not be granted under the ordinance, it must then consider the application as one for a variance under the Village Law (§ 179-b), for no. ordinance provision may abridge the variance power granted by the Legislature to the board under that section. (Matter of Waldorf v. Coffey, 5 Misc 2d 80.) In the latter determination, the board will consider only whether practical difficulty exists; unnecessary hardship is not involved since no use variance is sought. In that connection, the board is not required to disregard the present common ownership and use of the subject parcel and the adjoining 40 feet by 100 feet plot. Petitioner argues that it has an absolute right to a building permit on constitutional grounds under cases such as Matter of Richards v. Zoning Bd. of Appeals of Vil. of Malverne (285 App. Div. 287); Matter of Federal Realty Research Corp. v. Zoning Bd. of Appeals of Vil. of Hempstead (7 A D 2d 651); and Matter of Mandalay Constr. v. Eccleston (9 A D 2d 918), but none of those cases involved substandard parcels held in common ownership with