Dittmer v. Epstein

34 A.D.2d 675, 310 N.Y.S.2d 540, 1970 N.Y. App. Div. LEXIS 5066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1970
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR to compel the Mayor and the Board of Appeals of the Village of Ocean Beach to issue a building permit, the appeal is from a judgment of the Supreme Court, Suffolk County, entered October 3, 1969, which granted the petition and directed appellant Mayor to issue such permit. Judgment affirmed, without costs. The evidence adduced at the hearing before the Board of Appeals demonstrates conclusively (1) that the subject lot on which petitioner wishes to build a one-family residence has been held in single and separate ownership since prior to the enactment of the zoning ordinance and (2) that there is no feasible use for the lot other than the construction of a home thereon. This being so, the board’s insistence on frontage requirements pursuant to the zoning ordinance constitutes an unconstitutional deprivation of property. Petitioner is entitled therefore to a building permit, even without the granting of a variance (Matter of Mandalay Constr. v. Eccleston, 9 A D 2d 918). The right of petitioner to attack the constitutionality of the zoning ordinance as it applied to his property was not waived by the fact that he applied for a variance on a previous occasion (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Village of Lindenhurst v. Merhige, 226 N. Y. S. 2d 660). Martuscello, Acting P. J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.