Penn v. Kalnick

77 A.D.2d 948, 431 N.Y.S.2d 132, 1980 N.Y. App. Div. LEXIS 12745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 1980
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Village of Kings Point, dated October 19, 1978, which, after a hearing, denied petitioners’ application for two variances, the parties cross-appeal from a judgment of the Supreme Court, Nassau County, dated.May 14, 1979, which (1) granted the petition to the extent of annulling the board’s denial of a variance of the screening requirements of the zoning ordinance and directing that said variance be issued and (2) confirmed the board’s denial of a variance of the fencing requirements of the zoning ordinance. Judgment affirmed, without costs or disbursements. We agree with Special Term’s determination that there was no rational basis for the board’s determination which denied the petitioners’ application for a variance of the screening provision of the ordinance, which requires that all tennis courts be surrounded by a living screen of coniferous trees. (Cf. Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314.) Little, if any, purpose would be served by requiring the petitioners to strictly comply with those terms of the ordinance. As to the board’s denial of a variance of the fencing requirements of the ordinance, it does not appear that the board’s actions were arbitrary, nor does it appear that the petitioners demonstrated sufficient grounds to warrant varying the fencing requirement. Titone, J. P., Mangano, Martuscello and Weinstein, JJ., concur.