Opinion
Argued April 9, 1970
Decided April 23, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ROBERT E. DEMPSEY, J.
Irving Mariash, appellant in person.
Edward Conrad Clune for respondents.
Order reversed, without costs, and matter remitted to Supreme Court, Westchester County, for further proceedings in accordance with the following memorandum: The Village Zoning Board failed to show that the area variance sought by petitioner would change the character of the neighborhood or otherwise affect adversely the health, welfare, or safety of the community. There must, therefore, be a reversal (see, generally, Matter of Fulling v. Palumbo, 21 N.Y.2d 30). The board should, however, have the opportunity to show, if it can, either at Special Term, or by a de novo hearing before the board should Special Term so direct, that the variance would have adverse effects. (Anderson, Zoning Law and Practice in New York State, § 22.10.)
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.
Motion to dismiss appeal taken as of right denied.
Motion for leave to appeal denied upon the ground that an appeal lies as of right.