Jordan v. Town Board

48 A.D.2d 926, 369 N.Y.S.2d 519, 1975 N.Y. App. Div. LEXIS 10204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1975
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review respondent’s determination, made May 6, 1971, denying petitioner’s application for a zoning change, the appeal is from a judgment of the Supreme Court, Suffolk County, entered August 6, 1974, which granted the application, subject to certain restrictions. Judgment reversed, on the law, petition dismissed on the merits, with $20 costs and disbursements, and determination confirmed. Petitioner, in 1970, purchased this corner plot of vacant land on the north side of Suffolk Avenue in Brentwood, in an area then and now zoned Residence B. An industrially zoned area begins on the south of Suffolk Avenue. Petitioner sought a change of zoning of his parcel to Business 3 so that he might erect a building for use as a motorcycle sales showroom. The Planning Board of the Town of Islip had previously recommended denial of his application because of possible traffic congestion and the unsuitability of the location. The town board denied the application. Under these circumstances, and having in mind the various permitted uses under Residence B, we do not find that the town board’s determination was either confiscatory, arbitrary or capricious. It is petitioner’s burden to show, not only that the property could not yield a reasonable return for use as. a residence, but also that it would not yield a reasonable return under any of the other permitted uses (Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86). Rabin, Acting P. J., Martuscello, Christ, Munder and Shapiro, JJ., concur.