Long Island Leasing Corp. v. Casey

138 A.D.2d 596, 526 N.Y.S.2d 768, 1988 N.Y. App. Div. LEXIS 3122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1988
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Oyster Bay, dated January 28, 1986, which denied the petitioner’s application for variances, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Becker, J.), dated May 30, 1986, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

We find that at the time the petitioner acquired the parcel in question, it was chargeable with constructive knowledge that the zoning ordinance prohibited the use of the land for the purpose for which it was purchased. Accordingly, the respondent Zoning Board properly denied the petitioner’s application for a use variance to relieve such self-created hardship (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86, 89, rearg denied 301 NY 681, cert denied 340 US 933; Matter of Carriage Works Enters, v Siegel, 118 AD2d 568; 2 Anderson, New York Zoning Law and Practice § 23.30).

We note that our decision does not affect the petitioner’s right, if it be so advised, to commence an action against the Town of Oyster Bay for a judgment declaring the ordinance unconstitutional as applied to the parcel in question (see, Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of National Merritt v Weist, 41 NY2d 438). Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur.