64 A.D.2d 708 | N.Y. App. Div. | 1978
In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated October 25, 1976 and made after a hearing, which denied petitioners’ application for permission to maintain a second kitchen in a one-family dwelling, petitioners appeal from a judgment of the Supreme Court, Nassau County, entered April 6, 1977, which dismissed the petition. Judgment affirmed, with costs. We do not believe that the determination in Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo (40 NY2d 942, revg 48 AD2d 667 on the dissenting memorandum of Shapiro, J.), vitiates the findings and actions of the board of zoning appeals in this matter. The town’s zoning board of appeals, after a public hearing, granted Baskin’s application for a variance permitting him to install a second kitchen in a one-family residence he was constructing for himself and his son and daughter-in-law on a plot he owned in a one-faimily residentially zoned area. As a basis for its determination granting the variance, the zoning board in Baskin found that (1) differences in the degree of religious observance between the applicant and his son and daughter-in-law required him to have a separate kitchen, (2) the structure being built had a single entrance, a single boiler and only one utility room, (3) the staircase separating the upstairs and downstairs consisted of an open staircase and (4) there was a single entrance to the premises. As Mr. Justice Shapiro correctly noted, in his dissent in Baskin the fact that a house is designed so that it could be transformed into a two-family residence because it has a duplication of kitchen and other facilities, is not determinative. The standard is not the designed or potential use, but the actual use, and the facts in Baskin, namely the single entrance, the one utility room and the open staircase separating the upstairs from the downstairs, justified the exercise of discretion by the zoning board in determining that the use was for one family and that the need for a second kitchen in the house for religious reasons was supported by a sufficient showing or practicality. Furthermore, since the determination in Baskin granting the variance was based on a rational basis, the courts should not have substituted their judgment for that of the zoning board. However, the facts in the proceeding now before this court are somewhat different. According to the record, the petitioner husband, in June, 1974, while he was living in Brooklyn with his wife, children and parents, appeared before the respondent board of zoning appeals on an application for a variance for the approval of plot plans which included an encroachment into the rear yard on the subject parcel, of which he and his wife were contract vendees. At the hearing, the petitioners specifically requested approval of the plan which had the kitchen on the second level of the house instead of the first level. Aware of the possibility of conversion of the house to a two-family dwelling because of the nature of the building itself, a member of the board put the following questions to the