Wiley v. Board of Appeals of Newburgh

The respondent Dake Brothers, Inc., owns a triangular parcel of land which is located at the intersection of Route 9W and Carter Avenue in the Town of Newburgh. The parcel was 702 improved by a 2,500-square-foot garage which constituted a preexisting nonconforming use because it had a 17-foot front yard setback from Route 9W rather than the 40-foot setback now required by the zoning ordinance. Dake Brothers, Inc., sought and obtained front yard setback variances which would allow it to replace the existing building with a 2,304-square-foot store which would have front yard setbacks of approximately 25 and 22 feet, respectively, from Route 9W and Carter Avenue. The petitioners brought the instant proceeding seeking to set aside the determination of the respondent Zoning Board of Appeals to grant the variances. Since the record shows that the triangular shape of the property is such that literal application of the zoning ordinance hinders practical utilization of the land, the determination to grant the variances requested has a rational basis (see, Matter of Fuhst v Foley, 45 NY2d 441; Human Dev. Serv. v Zoning Bd. of Appeals, 110 AD2d 135, affd 67 NY2d 702). The self-created aspect of the alleged difficulty, by itself, is not determinative and does not preclude the board from granting an area variance (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 315; Matter of National Merritt v Weist, 41 NY2d 438, 442; Matter of Freese v Levitan, 117 AD2d 805, 806). Accordingly, the Supreme Court acted properly in denying the petition which sought to set aside the determination of the Zoning Board of Appeals. Bracken, J. P., Brown, Weinstein and Rubin, JJ., concur.