Kahn v. Zoning Board of Appeals of Irvington

Appellate Division of the Supreme Court of New York

Kahn v. Zoning Board of Appeals of Irvington

194 A.D.2d 539, 599 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 5377

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

DecidedJune 1, 1993

StatusPublished

This text of 194 A.D.2d 539 (Kahn v. Zoning Board of Appeals of Irvington) 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

Kahn v. Zoning Board of Appeals of Irvington, 194 A.D.2d 539, 599 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 5377 (N.Y. Ct. App. 1993).

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Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Irvington dated August 15, 1989, which, inter alia, denied the petitioner’s application for an area variance, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Cow-hey, J.), entered April 16, 1991, which dismissed the petition.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the determination is annulled, and the respondent Zoning Board of Appeals of the Village of Irvington is directed to grant the application and to issue to the petitioner’s application for the area variance in question.

The evidence presented demonstrates that the petitioner’s parcel was a buildable lot held in single and separate ownership which fully conformed with the zoning ordinance at the time the amendments were passed which rendered it nonconforming. Therefore, the petitioner has a vested right to use the now substandard parcel for residential purposes. Any consideration by the Zoning Board of Appeals of self-created hardship or economic injury was improper, and the Board’s denial of an area variance on these grounds was arbitrary and capricious and an abuse of discretion (see, Matter of Pateman v [540]*540Zoning Bd. of Appeals, 191 AD2d 568). Bracken, J. P., Balletta, Rosenblatt and Miller, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Irvington dated August 15, 1989, which, inter alia, denied the petitioner’s application for an area variance, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Cow-hey, J.), entered April 16, 1991, which dismissed the petition.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the determination is annulled, and the respondent Zoning Board of Appeals of the Village of Irvington is directed to grant the application and to issue to the petitioner’s application for the area variance in question.

The evidence presented demonstrates that the petitioner’s parcel was a buildable lot held in single and separate ownership which fully conformed with the zoning ordinance at the time the amendments were passed which rendered it nonconforming. Therefore, the petitioner has a vested right to use the now substandard parcel for residential purposes. Any consideration by the Zoning Board of Appeals of self-created hardship or economic injury was improper, and the Board’s denial of an area variance on these grounds was arbitrary and capricious and an abuse of discretion (see, Matter of Pateman v [540]*540Zoning Bd. of Appeals, 191 AD2d 568). Bracken, J. P., Balletta, Rosenblatt and Miller, JJ., concur.

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Bluebook (online)

194 A.D.2d 539, 599 N.Y.S.2d 975, 1993 N.Y. App. Div. LEXIS 5377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahn-v-zoning-board-of-appeals-of-irvington-nyappdiv-1993.

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