Thiermann v. Zoning Board of Appeals

Appellate Division of the Supreme Court of New York

Thiermann v. Zoning Board of Appeals

192 A.D.2d 710, 597 N.Y.S.2d 143, 1993 N.Y. App. Div. LEXIS 4272

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

DecidedApril 26, 1993

StatusPublished

This text of 192 A.D.2d 710 (Thiermann v. Zoning Board of Appeals) 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.

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Thiermann v. Zoning Board of Appeals, 192 A.D.2d 710, 597 N.Y.S.2d 143, 1993 N.Y. App. Div. LEXIS 4272 (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 Grand-View-on-Hudson, dated April 17, 1990, denying the petitioner a variance and a certificate of occupancy, and vacatur of a stop-work order, the Zoning Board of Appeals of the Village of Grand-View-on-Hudson appeals from stated portions of a judgment of the Supreme Court, Rockland County (West, J.), dated November 14, 1990, which, inter alia, directed it to issue the petitioners an area variance, and a certificate of occupancy, and the petitioners cross-appeal from so much of the judgment as declined to vacate the underlying stop-work order, which vacatur would have obviated the need for a variance.

Ordered that the judgment is affirmed, without costs or disbursements.

This appeal is the culmination of a long and acrimonious battle between the petitioners and the Village of Grand-View-on-Hudson concerning the petitioners’ construction of a single-family dwelling upon a lot they own in the village. In essence, this appeal concerns whether the ceiling in one-half of the petitioners’ basement will be seven feet six inches high or five feet eleven inches high.

A decision by a zoning board to grant or deny a variance will not be set aside absent a showing of illegality, arbitrariness, or an abuse of discretion (see, Matter of Fuhst v Foley, 45 [711]*711NY2d 441; Consolidated Edison Co. v Hoffman, 43 NY2d 598; Matter of Brucia v Planning Bd., 157 AD2d 657). A zoning board’s decision will be sustained if it has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441, supra; Consolidated Edison Co. v Hoffman, 43 NY2d 598, supra). Here, the reasons stated by the Board of Zoning Appeals for denying the petitioners’ request for a variance concerning an aggregate floor area in excess of the applicable zoning limit are not supported by substantial evidence. Consequently, the Supreme Court’s ruling, directing the respondent to grant a variance and issue a certificate of occupancy, is affirmed.

In light of this determination, we need not reach the merits of the petitioners’ cross appeal. Thompson, J. P., Rosenblatt, Miller and Pizzuto, 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 Grand-View-on-Hudson, dated April 17, 1990, denying the petitioner a variance and a certificate of occupancy, and vacatur of a stop-work order, the Zoning Board of Appeals of the Village of Grand-View-on-Hudson appeals from stated portions of a judgment of the Supreme Court, Rockland County (West, J.), dated November 14, 1990, which, inter alia, directed it to issue the petitioners an area variance, and a certificate of occupancy, and the petitioners cross-appeal from so much of the judgment as declined to vacate the underlying stop-work order, which vacatur would have obviated the need for a variance.

Ordered that the judgment is affirmed, without costs or disbursements.

This appeal is the culmination of a long and acrimonious battle between the petitioners and the Village of Grand-View-on-Hudson concerning the petitioners’ construction of a single-family dwelling upon a lot they own in the village. In essence, this appeal concerns whether the ceiling in one-half of the petitioners’ basement will be seven feet six inches high or five feet eleven inches high.

A decision by a zoning board to grant or deny a variance will not be set aside absent a showing of illegality, arbitrariness, or an abuse of discretion (see, Matter of Fuhst v Foley, 45 [711]*711NY2d 441; Consolidated Edison Co. v Hoffman, 43 NY2d 598; Matter of Brucia v Planning Bd., 157 AD2d 657). A zoning board’s decision will be sustained if it has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441, supra; Consolidated Edison Co. v Hoffman, 43 NY2d 598, supra). Here, the reasons stated by the Board of Zoning Appeals for denying the petitioners’ request for a variance concerning an aggregate floor area in excess of the applicable zoning limit are not supported by substantial evidence. Consequently, the Supreme Court’s ruling, directing the respondent to grant a variance and issue a certificate of occupancy, is affirmed.

In light of this determination, we need not reach the merits of the petitioners’ cross appeal. Thompson, J. P., Rosenblatt, Miller and Pizzuto, JJ., concur.

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192 A.D.2d 710, 597 N.Y.S.2d 143, 1993 N.Y. App. Div. LEXIS 4272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thiermann-v-zoning-board-of-appeals-nyappdiv-1993.

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