DeBeer v. Zoning Board of Appeals

Appellate Division of the Supreme Court of New York

DeBeer v. Zoning Board of Appeals

226 A.D.2d 721, 641 N.Y.S.2d 404, 1996 N.Y. App. Div. LEXIS 4672

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

DecidedApril 29, 1996

StatusPublished

Cited by1 cases

This text of 226 A.D.2d 721 (DeBeer v. Zoning Board of Appeals) 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

DeBeer v. Zoning Board of Appeals, 226 A.D.2d 721, 641 N.Y.S.2d 404, 1996 N.Y. App. Div. LEXIS 4672 (N.Y. Ct. App. 1996).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the City of Long Beach dated June 25,1993, which, after a hearing, granted the intervenors a use variance, the intervenors appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered August 24, 1994, as, granted reargument to the petitioners and, upon reargument, granted the petition and annulled the determination.

Ordered that order is affirmed, insofar as appealed from, with costs.

The intervenors sought to remodel and add to their restaurant and bar, which is located in a residential neighborhood. The use of the property is a pre-existing non-conforming use. Contrary to the intervenors’ contention, the recitation by their attorney at the hearing of the costs of operating the restaurant and bar, without any evidence of how those costs affect their return, is not sufficient to establish an unnecessary hardship (Matter of Village Bd. v Jarrold, 53 NY2d 254, 260; see also, Matter of Board of Commrs. v Board of Zoning & Appeals, 188 AD2d 464). Thus, as the Supreme Court found, the determination of the Zoning Board of Appeals is arbitrary and capricious (see, CPLR 7803 [3]).

The intervenors’ remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., Miller, O’Brien and McGinity, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the City of Long Beach dated June 25,1993, which, after a hearing, granted the intervenors a use variance, the intervenors appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered August 24, 1994, as, granted reargument to the petitioners and, upon reargument, granted the petition and annulled the determination.

Ordered that order is affirmed, insofar as appealed from, with costs.

The intervenors sought to remodel and add to their restaurant and bar, which is located in a residential neighborhood. The use of the property is a pre-existing non-conforming use. Contrary to the intervenors’ contention, the recitation by their attorney at the hearing of the costs of operating the restaurant and bar, without any evidence of how those costs affect their return, is not sufficient to establish an unnecessary hardship (Matter of Village Bd. v Jarrold, 53 NY2d 254, 260; see also, Matter of Board of Commrs. v Board of Zoning & Appeals, 188 AD2d 464). Thus, as the Supreme Court found, the determination of the Zoning Board of Appeals is arbitrary and capricious (see, CPLR 7803 [3]).

The intervenors’ remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., Miller, O’Brien and McGinity, JJ., concur.

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Bluebook (online)

226 A.D.2d 721, 641 N.Y.S.2d 404, 1996 N.Y. App. Div. LEXIS 4672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debeer-v-zoning-board-of-appeals-nyappdiv-1996.

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