Summary
In Allen, which involved a similar ordinance which contained an exception for single and separate nonconforming lots but no merger clause, the Appellate Division wrote that (pp 922-923): "A common-sense reading of the ordinance sets up no dual requirements, but only the single requirement that the lot had to be held individually and separately by a party not owning any contiguous parcels on January 22, 1962.
Summary of this case from Matter of Mackay v. MayhallOpinion
April 21, 1975
In a proceeding pursuant to CPLR article 78 to review a determination of respondent board of zoning appeals, dated December 12, 1973, which denied petitioners' application for a statutory exception, petitioners appeal from a judgment of the Supreme Court, Westchester County, dated June 7, 1974, which dismissed the petition. Judgment reversed, on the law, without costs, and petition granted. We are unable to agree with Special Term and the board of zoning appeals that a dual test is created by a zoning ordinance which permits an exception for a "lot owned individually and separately, and separated from any adjoining tracts of land on January 22, 1962". The board contends that such phrase requires continuing individual ownership of the lot in question separate from the ownership of any contiguous lots on January 22, 1962. On that basis the board denied petitioners' application for a building permit for a lot separately owned by another party on January 22, 1962, which is contiguous to another substandard lot, also acquired by them (from a different party) after that date. A common-sense reading of the ordinance sets up no dual requirement, but only the single requirement that the lot had to be held individually and separately by a party not owning any contiguous parcels on January 22, 1962. Had the drafters of the ordinance wanted such individual and separate ownership to be a continuing requirement for the exception, they would have so specified (Matter of Soros v Board of Appeals of Vil. of Southampton, 50 Misc.2d 205; see, also, Matter of Stenzler v Commerdinger, 50 Misc.2d 235; cf. Khare v Incorporated Vil. of Massapequa Park, 62 Misc.2d 68, affd 35 A.D.2d 653, affd 27 N.Y.2d 991; Matter of Vollet v Schoepflin, 28 A.D.2d 706; Matter of Faranda v Schoepflin, 21 A.D.2d 801). Martuscello, Acting P.J., Christ and Shapiro, JJ., concur; Munder, J., dissents and votes to affirm the judgment.