Opinion
July 5, 1967
Judgment of the Supreme Court, Nassau County, dated October 14, 1966, affirmed, with costs. Petitioner, the contract vendee of a lot approximately 2,500 square feet in area, applied for a permit to construct a one-family house measuring 17 feet in width and 48 feet in depth. The lot had been held in single ownership prior to the enactment of the zoning ordinance. The lot was located in a district which provided that no dwelling might be constructed on a lot less than 6,000 square feet in area and having two side yards of less than 15 feet in the aggregate or less than 5 feet separately; the ordinance further provided that, in the case of a lot singly held in ownership from a time prior to October 25, 1957, the area requirements applicable to the lot were reduced to 4,000 square feet. The permit was denied by the building inspector on the ground that the dwelling as proposed violated these provisions. The petitioner then sought a variance of the provisions of the zoning ordinance from the Board of Zoning and Appeals. At the hearing an owner of abutting property testified that he had offered to purchase the lot from the owner and contract vendor some years before, and that the owner had said that he was not interested in selling it. The abutting neighbor also testified that he would pay the same price that the contract vendee was paying. The Board of Zoning and Appeals denied the application for a variance, finding that the lot had been held in single ownership from a date antedating the zoning ordinance, and that the reduction of the side yard to 4 feet on each side was an excessive request. Special Term annulled that determination, and the Board appeals. The lot was a nonconforming use which survived the regulations imposed by the zoning ordinance which would render it useless ( Matter of Mandalay Constr. v. Eccleston, 9 A.D.2d 918; Hammond v. Town of Caldwell, 282 App. Div. 798; Matter of Land Purchasing Corp. v. Grunewald, 20 Misc.2d 175). Otherwise, the owner would be deprived unconstitutionally of his property. Quite clearly, the owner and the contract vendee would be unable to meet the literal requirements of the ordinance; hence, the board was not justified in refusing the variance permitting the erection of the dwelling. On this record, we cannot say that the offers to purchase the lot from the adjoining property owner nullified the existing right to use it for dwelling purposes. We note that there was no evidence that any concrete offer was made prior to the sale to the contract vendee, and the offer made subsequent to the contract was, of course, too late. Moreover, an owner is free to deal with anyone in the sale of his property, and we think that he may not be compelled to sell to a neighbor at the pain of losing a vested right. Special Term was, therefore, correct in annulling the determination of the board, and permitting the improvement of the lot with a dwelling. Christ, Acting P.J., Hopkins and Munder, JJ., concur; Benjamin, J., dissents with the following memorandum, in which Brennan, J., concurs; Petitioner maintains that there are practical difficulties and unnecessary hardships in requiring strict compliance with the ordinance, in that no legal use can be made of the property and that, unless use is allowed, the constitutional protection against the taking of property without due process of law is violated. A Board of Appeals may determine that a plot cannot be used for a particular purpose, that the public interest requires that such use be forbidden and thereby deny a variance. If, however, a board forbids a use and no reasonable use for the property remains, it amounts to a taking of the property ( Matter of Waldorf v. Coffey, 5 Misc.2d 80; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222). Clearly, then, if there is no reasonable use for the subject property, the failure to grant a variance to petitioner would amount to a confiscation. In opposition to the application, the abutting land owner testified that he had in the past offered to purchase the land in question but the contract vendor declined to sell. The abutting owner asked that he be informed of any change of mind as he was interested in enlarging his property. When he heard of the current application, he renewed his offer to the contract vendor at the same price as in the contract herein. This, in my opinion, demonstrates the marketability of the subject property. The vendor or vendee could sell the plot for a sum equal to the contract price. If the property is marketable without the variance, at the same value as with the variance, the petitioner cannot claim the denial of the variance to be confiscatory, as a reasonable use exists. The fact that the second offer was made subsequent to the contract is immaterial as the contract was conditioned upon petitioner's obtaining a building permit. I agree with the majority that an owner is free to deal with any one in the sale of his property and that he may not be compelled to sell to a neighbor. While his freedom of action in selling his property is absolute, the right to a variance is not, when alternatives exists which would result in avoiding the alteration of the character of the neighborhood without financial sacrifice to the owner. Should subsequent events alter the circumstances, the application for a variance could be renewed. Presently, the property in question is marketable at a reasonable price. It cannot, then, be said that there are practical difficulties and unnecessary hardships nor a confiscation in requiring strict compliance with the zoning ordinance. Matter of Karras v. Michaelis ( 19 N.Y.2d 449) is illustrative of the principle that the court will look to the realities of confiscation by reason of the alleged practical difficulties. There the court found that, since the award in condemnation had made provision for the consequential damages to the remaining piece, the claim of confiscation because of practical difficulties could not stand. Where there is a claim of practical difficulties or unnecessary hardships in the strict observance of the ordinance, the board is required to act so as to promote the public safety and welfare and to secure substantial justice (Town Law, § 267, subd. 5). This can only mean justice to the landowner and justice to the community. The board found that the variance, if granted, "would have an adverse affect on the health, safety and welfare of the area, as well as a depreciating affect on the value of the real property located proximate to the subject plot". The substantial interest of the community in its maintenance should not be upset save where the constitutional rights of the individual property owner are threatened. The granting of the variance would be, as determined by the local body, injurious to the community. Denial of the variance would injure no one. It is obvious from the act of conditioning the contract of sale on the grant of a building permit that the petitioner knew the lot to be substandard prior to entering into the contract and cannot now be heard to complain. In addition, denial of the variance and the consequential denial of a building permit removes his obligations under said contract. The contract-vendor has, as set forth above, a fair market for the property and will suffer no monetary loss. In denying the application, the board acted within the power conferred upon it by law and arrived at a just result. I would reverse and reinstate the determination of the Zoning Board of Appeals with leave to renew the application for a variance if justice should ultimately so require.