Held v. Giuliano , 46 A.D.2d 558 ( 1975 )


Menu:
  • Kane, J.

    On February 20, 1970 the Town of Olive Planning Board approved a 22-lot single-family residential subdivision as shown on a map thereafter duly filed in the Ulster County Clerk’s office by the record owner, Slide Mountain Realty Co., Inc. On December 22, 1972 the Town Board of the Town of Olive enacted an interim zoning ordinance which, among other things, required a minimum lot size of one acre for the construction of a single-family residence. The ordinance made substandard all but five lots in Slide Mountain’s subdivision. However, these subdivision lots were exempt from the restriction imposed by the ordinance for a period of two years from the filing of the subdivision map (Town Law, § 265-a). After the expiration of this period, and on April 5, 1973, Slide Mountain applied for a blanket variance” to permit residential construction on the 17 remaining lots contained in an area of approximately 12 acres. After a public hearing, the respondent Zoning Board of Appeals granted the variance. Petitioners timely commenced this proceeding and Slide Mountain duly intervened. Petitioners contend first, that the Board of Appeals exceeded the authority granted to it under subdivision 5 of section 267 of the Town Law in granting the area variance, and, second, even if statutory authority existed, there is no basis in the record of the hearing to grant the relief requested in that the board made no formal findings that approval of the variance would serve the public safety and welfare.

    The grant of power to regulate zoning by ordinance is vested in the legislative body of the town (Town Law, '§ 261) with the purpose in view that such regulation will occur in accordance with a comprehensive plan (Town Law, § 263). The power of a zoning board of appeals to vary or modify the application of any regulation or provision of the ordinance is circumscribed by the explicit provision of subdivision 5 of section 267 of the Town Law which limits such action to situations where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances ”. If the grant of a variance is destructive of the purposes to be achieved by the ordinance, there is a clear invasion of the legislative process (Van Deusen v. Jackson, 35 A D 2d 58, affd. 28 N Y 2d 608). The fact that in the instant case we are concerned with an “ interim ” ordinance does not remove it from the rule set forth in Van Deusen (supra) wherein a “ permanent ” ordinance was involved. There can be no greater power in a zoning board of *560appeals to modify the application of an “ interim M ordinance than that provided for in the case of a “ permanent ” ordinance. The underlying legislative objective is the same in each situation. In the absence of some legal infirmity with the ordinance dr its unreasonable extension beyond what is temporarily permitted (cf. Lake Illyria Corp. v. Town of Gardiner, 43 A D 2d 386), the decision in Van Duesen (supra) controls the matter at hand, and we conclude that the respondent improperly granted the instant variance.

    While we do not reach petitioner’s second argument, we would point out that a zoning board of appeals must, in each case, make findings that disclose the basis for its decision, and granting a variance without such findings would ordinarily result in a remittal to the board (Matter of Mansell v. City of Buffalo, 40 A D 2d 935; 2 Anderson, New York Zoning Law and Practice, § 20.30).

    The judgment should be reversed, on the law and the facts, without costs; the petition should be granted, and the variance granted by the Zoning Board of Appeals of the Town of Olive by its decision filed July 19, 1973 should be annulled and set aside.

Document Info

Citation Numbers: 46 A.D.2d 558

Judges: Gbeenblott, Kane

Filed Date: 2/13/1975

Precedential Status: Precedential

Modified Date: 1/12/2022