Posted by: Patricia Salkin | December 26, 2018

NY Appellate Court Holds Owner was Entitled to Use Variance for Two-Family Dwelling for Rental Purposes

This post was authored by Matthew Loeser, Esq.
Petitioner’s house was constructed in 1920, on a 5,000 square-foot lot, and was a two-family residence in the Town of North Hempstead. Prior to amendments to the Town Zoning Code in 1945, two-family residences were permitted on all 5,000 square-foot lots in the district. As current zoning laws prohibited all residential use in that district, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling. The Town rejected the application, and the petitioner appealed to the respondent, Town of North Hempstead Board of Zoning Appeals. Following a hearing, the Board denied the application. The petitioner commenced this proceeding to review the Board’s determination, and the Supreme Court denied the petition.

The record reflected that the petitioner presented evidence, including affidavits from neighbors and others who had lived in the community for many years, which was sufficient to establish that the property was a legal two-family residence prior to the 1945 amendments to the Town Zoning Code. Conversely, there was no evidence presented at the hearing to demonstrate that the property had been converted into a two-family dwelling after the 1945 amendments. Accordingly, the court found there was insufficient evidence to support the rationality of the Board’s determination denying the proposed use variance. Since the Board’s determination was irrational, and arbitrary and capricious, the court held the Supreme Court should have granted the petition, annulled the Board’s determination, and remitted the matter to the Town for the issuance of the requested use variance.

Abbatiello v Town of North Hempstead Board of Zoning Appeals, 164 A.D. 3d 785 (2 Dept. 8/22/2018)


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