Barretto v. Zoning Board of Appeals of Inc.

123 A.D.2d 692, 507 N.Y.S.2d 57, 1986 N.Y. App. Div. LEXIS 60835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1986
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Incorporated Village of Bayville, dated March 20, 1984, which granted a zoning variance to the respondent Vivona Estates, Inc., for the purpose of erecting a one-family dwelling, the petitioners appeal from a judgment of the Supreme Court, Queens County (Bambrick, J.), dated January 16,1986, which dismissed the proceeding.

Ordered that the judgment is affirmed, with one bill of costs.

The court properly concluded that the determination of the Zoning Board of Appeals was neither arbitrary nor capricious. Additionally, the determination was supported by substantial evidence. The two parcels in question in this case, which were joined at the rear forming a "back-to-back split” formation, were not merged during the short period that they were in common ownership. The parcels were never used in conjunction with each other, nor did one materially enhance the value or utility of the other. Moreover, it does not appear that any neighboring parcels consist of extra long street-to-street plots. Rather, each parcel maintains its single and separate identity, and the Zoning Board’s determination must, therefore, be upheld (see, Hemlock Dev. Corp. v McGuire, 35 AD2d 567; Matter of Guazzo v Chave, 59 Misc 2d 1050; Matter of Tara Homes v Volz, 44 Misc 2d 275).

Since our function here is to review the discretion of the Zoning Board of Appeals based on the evidence before it, we have not considered subsequently proffered material which is dehors the record. Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.