Opinion
December 18, 1989
Appeal from the Supreme Court, Westchester County (Cowhey, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioners applied to the Zoning Board of Appeals of the City of Rye for an area variance, proposing to subdivide their property to create one conforming lot upon which their own single-family residence was situated and one nonconforming lot upon which they intended to build a second dwelling. The petitioners, however, did not first apply to the Planning Commission for subdivision approval. Therefore, there was no adverse determination from which an appeal to the Zoning Board of Appeals could properly be taken. In the absence of an administrative determination to review, the Zoning Board of Appeals was without power to grant the variance since its jurisdiction in that regard is appellate only and it may not render an advisory opinion (see, Moriarty v Planning Bd., 119 A.D.2d 188; 2 Anderson, New York Zoning Law and Practice §§ 22.37, 22.39, 25.04 [3d ed]; cf., Matter of Cohalan v Schermerhorn, 77 Misc.2d 23). Contrary to the petitioners' contention, the letter received by them from the Building Inspector outlining the proper procedures to follow to obtain subdivision approval or a variance does not constitute the statutorily prescribed prior "decision or determination" necessary to invoke the jurisdiction of the Zoning Board of Appeals (see, City of Rye Code § 197-81). Accordingly, the Supreme Court correctly upheld the determination of the Zoning Board of Appeals that it was without jurisdiction to entertain the petitioners' application.
In light of our determination, we do not reach the merits of the petitioners' application. Mollen, P.J., Rubin, Sullivan and Rosenblatt, JJ., concur.