Baumhofer v. Ullrich

Appellate Division of the Supreme Court of New York

Baumhofer v. Ullrich

20 A.D.2d 751, 247 N.Y.S.2d 251, 1964 N.Y. App. Div. LEXIS 4400

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

DecidedFebruary 20, 1964

StatusPublished

This text of 20 A.D.2d 751 (Baumhofer v. Ullrich) 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

Baumhofer v. Ullrich, 20 A.D.2d 751, 247 N.Y.S.2d 251, 1964 N.Y. App. Div. LEXIS 4400 (N.Y. Ct. App. 1964).

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Opinion

Order unanimously reversed, without costs of this appeal to any party, petition dismissed, and determination of the Board of Appeals confirmed. Memorandum: Petitioner’s predecessor in title owned a lot in a residential use district with a frontage of 178.04 feet. The zoning ordinance provided that in such district, “no lot in the future shall be less than the minimum frontage width of 60 feet” and listed the permitted uses. After conveying 138.4 feet of said frontage a 40-foot substandard lot was created for which an area variance is sought for a prohibited use. The Board of Appeals was therefore justified in denying the variance upon the ground that the practical difficulty was self-created. (Matter of Fina Homes v. Young, 7 N Y 2d 845; Matter of Chasanoff v. Silberstein, 6 A D 2d 872, affd. 6 N Y 2d 807.) Since there was adequate evidence to support the board’s determination, which was not arbitrary, capricious, or illegal, that determination should not have been disturbed. (People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400.) The holding in Matter of Gapinski v. Zoning Bd. of Appeals (3 A D 2d 976) is not applicable when the landowner creates a substandard lot in violation of an existing ordinance. (Appeal from order of Niagara Special Term, denying motion to dismiss petition and reaffirming the order reversing the determination of respondents which granted the petitioner a variance.) Present — Williams, P. J., Bastow, Henry and Del Veechio, JJ.

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Order unanimously reversed, without costs of this appeal to any party, petition dismissed, and determination of the Board of Appeals confirmed. Memorandum: Petitioner’s predecessor in title owned a lot in a residential use district with a frontage of 178.04 feet. The zoning ordinance provided that in such district, “no lot in the future shall be less than the minimum frontage width of 60 feet” and listed the permitted uses. After conveying 138.4 feet of said frontage a 40-foot substandard lot was created for which an area variance is sought for a prohibited use. The Board of Appeals was therefore justified in denying the variance upon the ground that the practical difficulty was self-created. (Matter of Fina Homes v. Young, 7 N Y 2d 845; Matter of Chasanoff v. Silberstein, 6 A D 2d 872, affd. 6 N Y 2d 807.) Since there was adequate evidence to support the board’s determination, which was not arbitrary, capricious, or illegal, that determination should not have been disturbed. (People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400.) The holding in Matter of Gapinski v. Zoning Bd. of Appeals (3 A D 2d 976) is not applicable when the landowner creates a substandard lot in violation of an existing ordinance. (Appeal from order of Niagara Special Term, denying motion to dismiss petition and reaffirming the order reversing the determination of respondents which granted the petitioner a variance.) Present — Williams, P. J., Bastow, Henry and Del Veechio, JJ.

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Bluebook (online)

20 A.D.2d 751, 247 N.Y.S.2d 251, 1964 N.Y. App. Div. LEXIS 4400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baumhofer-v-ullrich-nyappdiv-1964.

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