5 Misc. 2d 80 | N.Y. Sup. Ct. | 1957
Petitioner, owner of a vacant parcel of land in the village of Freeport, brings a proceeding pursuant to article 78 of the Civil Practice Act to review the refusal of the building inspector to issue a permit for the erection of a one-family dwelling on said land and to review the denial by the Board of Zoning Appeals of his application for a variance from the minimum lot area required by the zoning ordinance of the village.
It appears that the subject property is 40 feet wide and 80 feet deep, that petitioner’s predecessor contracted to purchase it on installment payments in 1930, acquired the title on December 2, 1933, and held it at all times thereafter in single, separate ownership until she sold it to petitioner in 1956. Petitioner himself at no time owned any abutting property.
This application for a variance was refused on the grounds that such use of the lot would substantially depreciate the value of other property and would appreciably alter the essential character of the neighborhood, and further, that he could not meet the minimum area requirements of section 15 of the ordinance.
Apparently the board felt that its power to vary the provisions of the ordinance had been limited by the enactment of the “75% rule ” by the legislative action of the Village Board of Trustees. The court must disagree with this position. Boards of appeals owe their existence to an act of the Legislature of the State of New York (Village Law, § 179-b). The statute which creates such bodies provides that (subd. 5) : “ Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such [zoning] ordinance, the hoard of appeals shall have the power in passing upon appeals, to.vary or modify the application, of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit, of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” (Italics supplied.)
This is a legislative grant or delegation of power which can only be modified by the Legislature of the State of New York. No ordinance adopted by a village board may limit or abridge this power. Where practical difficulties or unnecessary hardship is present, the Board of Appeals is not bound by such a condition as this Village Board sought to impose.
Unquestionably, however, a board of appeals may, in a proper-case, determine that a plot is too small or too irregular in shape to be used for a particular purpose, and that the public interest requires that such use be forbidden. But the result of such