Zwitzer v. Zoning Board of Appeals

543 N.E.2d 724, 74 N.Y.2d 756, 545 N.Y.S.2d 81, 1989 N.Y. LEXIS 878

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We agree, for so much of the reasons stated in the majority memorandum of the Appellate Division, that the Board of Zoning Appeals lacked a rational basis for granting only a partial 4% area variance rather than the entreatied 7% one. Petitioner property owner, having established to the satisfac tion of the Canandaigua Zoning Board of Appeals that he would suffer significant economic injury by the strict application of the zoning ordinance in this pertinent respect, was entitled to the area variance as sought because, there being no material difference between it and the granted reduced one, the Board’s action was arbitrary and capricious. The annulment of the Board’s determination by the judgment of the Supreme Court, affirmed by the Appellate Division, is within the customary and narrow judicial review function governing such matters.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.