Estate of Mandigo v. Zoning Board of Appeals

45 A.D.2d 964, 359 N.Y.S.2d 346, 1974 N.Y. App. Div. LEXIS 4106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1974
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR to review a determination of the appellant Zoning Board of Appeals, dated May 25, 1973, denying petitioner’s application for certain area variances of the Zoning Ordinance of the Village of Highland Falls, the -appeal is from a judgment of the Supreme Court, Orange County, entered November 28, 1973, which granted the petition and directed the board to grant the variances. Judgment reversed, on the law, without costs, and matter remitted to the appellant Zoning Board of Appeals for (1) a new hearing at which it shall consider, among other things, such evidence as may be presented concerning whether practical difficulties exist in marketing petitioner’s parcel unsubdivided and without the grant of the variances requested and (2) a new determination. The purpose of the application to the appellant board was the obtaining of area variances in order that petitioner’s decedent’s nonconforming, substandard parcel, on which there are two nonconforming dwellings, might be subdivided into two lots for the purpose of sale. However, at the hearing held by the board petitioner failed to offer any evidence that sale of the parcel, unsubdivided and without variances, had been attempted. In the absence of proof of practical difficulties in the sale of the parcel in the latter state, the board’s determination denying the application should not have been annulled (Matter of Village of Bronxville v. Francis, 1 A D 2d 236, affd. 1 N Y 2d 839). Gulotta, P. J., Hopkins, Martuscello and Shapiro, JJ., concur; Latham, J., dissents and votes to affirm.