32 A.D.2d 669 | N.Y. App. Div. | 1969
Proceeding pursuant to article 78 of the CPLR to review a determination of the Zoning Board of Appeals of the Town of Orangetown, dated October 27, 1965, which granted the interveners an area variance. Petition granted and determination annulled, on the law, with costs to petitioners against intervenors-respondents. For a period of four years, George Maggiolo, one of the interveners herein, maintained on his own property, without a building permit or other municipal approval, a 50-foot radio transmission tower which was used in connection with his landscaping and excavating business, conducted as a partnership with his brother, the other intervenor herein. In June, 1965, George Maggiolo applied to the Board of Zoning Appeals for a special permit for the maintenance of a 103-foot transmission tower. This application was made after the latter tower had been erected in violation of the existing zoning ordinance. That ordinance required that an approved tower be located a minimum distance, equal to its height, from all property lines. The application was denied by the board on June 10, 1965 upon a finding that no hardship existed which required the granting of the variance. Thereafter the zoning ordinance was amended to require a setback distance for radio and television towers equal to the height of the tower plus one third. In October, 1965, George Maggiolo along with his brother applied for permission to move the existing tower to a point adjacent to the brother’s home which was located on a plot adjoining George’s plot. While such a move would not satisfy the new zoning distance requirements, the tower would be substantially further away from other adjoining plots. Both Maggiolos agreed that, for the purposes of the application, the two separately owned plots were to be treated as one. The variance was granted upon conditions, one of which, upon the Maggiolos’ proposal, was that if either of the plots