Aiello v. Saladino

Appellate Division of the Supreme Court of New York

Aiello v. Saladino

132 A.D.2d 1002, 518 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 49477

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 10, 1987

StatusPublished

Cited by4 cases

This text of 132 A.D.2d 1002 (Aiello v. Saladino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aiello v. Saladino, 132 A.D.2d 1002, 518 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 49477 (N.Y. Ct. App. 1987).

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Opinion

Determination unanimously confirmed and petition dismissed without costs. Memorandum: This CPLR article 78 proceeding to review the determination of the Zoning Board of Appeals denying an application for a use variance should have been disposed of at Special Term. Nevertheless, we need not remit the matter but may determine it on the merits (see, General City Law § 82; Matter of Willow Garden Apts. v Riker, 36 AD2d 892). The Board properly denied petitioner’s application because the record before it was devoid of proof that the property could not yield a reasonable return if used for a purpose permitted by the zoning ordinance (see, Matter of Crossroads Recreation v Broz, 4 NY2d 39; Matter of Otto v Steinhilber, 282 NY 71, rearg denied 282 NY 681). Moreover, petitioner, who acquired the property with notice of the zoning restrictions, presumably paid a consideration appropriate to the limitation of its use (see, People ex rel. Fordham Manor Refm. Church v Walsh, 244 NY 280, 288). Thus, having knowingly acquired the property for a prohibited use, he could not thereafter have a variance on the ground of "special hardship” (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86, 89, cert denied 340 US 933). (Article 78 proceeding transferred by order of Supreme Court, Oneida County, Lynch, J.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Determination unanimously confirmed and petition dismissed without costs. Memorandum: This CPLR article 78 proceeding to review the determination of the Zoning Board of Appeals denying an application for a use variance should have been disposed of at Special Term. Nevertheless, we need not remit the matter but may determine it on the merits (see, General City Law § 82; Matter of Willow Garden Apts. v Riker, 36 AD2d 892). The Board properly denied petitioner’s application because the record before it was devoid of proof that the property could not yield a reasonable return if used for a purpose permitted by the zoning ordinance (see, Matter of Crossroads Recreation v Broz, 4 NY2d 39; Matter of Otto v Steinhilber, 282 NY 71, rearg denied 282 NY 681). Moreover, petitioner, who acquired the property with notice of the zoning restrictions, presumably paid a consideration appropriate to the limitation of its use (see, People ex rel. Fordham Manor Refm. Church v Walsh, 244 NY 280, 288). Thus, having knowingly acquired the property for a prohibited use, he could not thereafter have a variance on the ground of "special hardship” (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86, 89, cert denied 340 US 933). (Article 78 proceeding transferred by order of Supreme Court, Oneida County, Lynch, J.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Bluebook (online)

132 A.D.2d 1002, 518 N.Y.S.2d 287, 1987 N.Y. App. Div. LEXIS 49477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aiello-v-saladino-nyappdiv-1987.

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