McNair v. Board of Zoning Appeals of Hempstead

Appellate Division of the Supreme Court of New York

McNair v. Board of Zoning Appeals of Hempstead

285 A.D.2d 553, 728 N.Y.S.2d 73, 2001 N.Y. App. Div. LEXIS 7465

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

DecidedJuly 16, 2001

StatusPublished

Cited by7 cases

This text of 285 A.D.2d 553 (McNair v. Board of Zoning Appeals of Hempstead) 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

McNair v. Board of Zoning Appeals of Hempstead, 285 A.D.2d 553, 728 N.Y.S.2d 73, 2001 N.Y. App. Div. LEXIS 7465 (N.Y. Ct. App. 2001).

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Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Hempstead, dated March 26, 1996, which, after a hearing, denied the petitioners’ applications for area variances, the petitioners appeal from a judgment of the [554]*554Supreme Court, Nassau County (Winslow, J.), entered December 10, 1997, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioners’ property consisted of two contiguous lots which merged when they were purchased by the petitioners. Their single-family dwelling was on one lot, which had direct access to the street with frontage of approximately 70 feet. The petitioners constructed a garage on the other lot, which was landlocked, and later converted it to a single-family dwelling without the benefit of a permit. The petitioners then applied for area variances to subdivide their property and convert the garage, since, inter alia, their side yards did not comply with the zoning requirements. To allow access to the landlocked converted garage, the petitioners proposed to create an easement over the front lot, which did not comply with the zoning requirements for a driveway.

In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action taken is illegal, arbitrary and capricious, or an abuse of discretion (see, Matter of Sasso v Osgood, 86 NY2d 374; Matter of Fuhst v Foley, 45 NY2d 441). Here, the Supreme Court properly concluded that the determination of the Board of Zoning Appeals of the Town of Hempstead was not illegal, arbitrary and capricious, or an abuse of discretion. The requested variances were substantial, the alleged difficulties were self-created, and the proposed changes would have an undesirable effect on the character of the neighborhood (see, Town Law § 267-b [3] [b]; Matter of Sasso v Osgood, supra, at 384).

The petitioners’ remaining contentions are without merit. Santucci, J. P., Luciano, Feuerstein and Adams, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Hempstead, dated March 26, 1996, which, after a hearing, denied the petitioners’ applications for area variances, the petitioners appeal from a judgment of the [554]*554Supreme Court, Nassau County (Winslow, J.), entered December 10, 1997, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioners’ property consisted of two contiguous lots which merged when they were purchased by the petitioners. Their single-family dwelling was on one lot, which had direct access to the street with frontage of approximately 70 feet. The petitioners constructed a garage on the other lot, which was landlocked, and later converted it to a single-family dwelling without the benefit of a permit. The petitioners then applied for area variances to subdivide their property and convert the garage, since, inter alia, their side yards did not comply with the zoning requirements. To allow access to the landlocked converted garage, the petitioners proposed to create an easement over the front lot, which did not comply with the zoning requirements for a driveway.

In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action taken is illegal, arbitrary and capricious, or an abuse of discretion (see, Matter of Sasso v Osgood, 86 NY2d 374; Matter of Fuhst v Foley, 45 NY2d 441). Here, the Supreme Court properly concluded that the determination of the Board of Zoning Appeals of the Town of Hempstead was not illegal, arbitrary and capricious, or an abuse of discretion. The requested variances were substantial, the alleged difficulties were self-created, and the proposed changes would have an undesirable effect on the character of the neighborhood (see, Town Law § 267-b [3] [b]; Matter of Sasso v Osgood, supra, at 384).

The petitioners’ remaining contentions are without merit. Santucci, J. P., Luciano, Feuerstein and Adams, JJ., concur.

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285 A.D.2d 553, 728 N.Y.S.2d 73, 2001 N.Y. App. Div. LEXIS 7465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnair-v-board-of-zoning-appeals-of-hempstead-nyappdiv-2001.

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