Opinion
October 12, 1971
In a proceeding pursuant to article 78 of the CPLR to review appellants' determination, dated March 27, 1970, which denied petitioner's application for a variance to permit extension, throughout petitioner's entire premises, of the permitted business use on part of the premises, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 14, 1970, which annulled the determination and directed appellants to issue the requested variance. Judgment affirmed, without costs. No opinion. Latham, Christ and Benjamin, JJ., concur; Hopkins, Acting P.J., and Brennan, J., dissent and vote to reverse the judgment and to dismiss the proceeding on the merits and confirm the determination, with the following memorandum: Petitioner seeks a variance to extend a permitted business use throughout the entire split-zoned premises which it recently purchased. Two small triangular parcels at the rear of its premises are located in a "C" residence zone. This application is one for a use variance (cf. Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449; Matter of Blumberg v. Feriola, 8 A.D.2d 850, affd. 7 N.Y.2d 852). Petitioner, having knowingly entered into a contract to purchase land for a prohibited use, cannot now have a use variance on the ground of unnecessary hardship ( Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86; Matter of Blumberg v. Feriola, supra; cf. Matter of Bobrowski v. Feriola, 2 A.D.2d 708).