IN RE: Heinrich JUNG et al.

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Heinrich JUNG et al., Appellants, v. PLANNING BOARD OF the TOWN OF MIDDLETOWN et al., Respondents.

Decided: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CREW III and YESAWICH JR., JJ. Jordan & Walster (Herbert Jordan of counsel), Roxbury, for appellants. Whiteman, Osterman & Hanna (Jeffrey S. Baker of counsel), Albany, for respondents.

Appeal from a judgment of the Supreme Court (Mugglin, J.), entered September 8, 1998 in Delaware County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Planning Board of the Town of Middletown approving a special use permit and a determination of respondent Zoning Board of Appeals of Town of Middletown approving a variance.

Respondent Town of Middletown Planning Board (hereinafter the Planning Board) granted respondent Marion Ballard a special use permit to erect commercial storage buildings on property he owns in the Town of Middletown, Delaware County.   The Town's Zoning Ordinance placed Ballard's property in an R-5 zoning district which allows for residential and limited agricultural uses;  land in the R-5 district can be developed commercially upon issuance of a special use permit if, as is relevant here, the parcel comprised at least 5 acres and had 500 feet of roadside frontage.   Because Ballard's parcel was nonconforming in that it contained only 2.1 acres and had 360 feet of roadside frontage, he asked for, and the Zoning Board of Appeals (hereinafter the ZBA) ultimately granted, a variance with respect to the frontage, and subsequently the Planning Board granted the special use permit.

This proceeding questioning that determination was dismissed by Supreme Court, which reasoned that whether the ZBA correctly issued the variance was irrelevant, for Ballard's property was covered by a single and separate ownership provision within the Town Zoning Ordinance which obviated the need for a variance.   The court further noted that petitioners' challenges with respect to the variance itself were meritless.   We granted a stay, pending this appeal by petitioners.

 Petitioners' argument that Supreme Court erred in concluding that it was not necessary for Ballard to have obtained a variance is unavailing.   Town Zoning Ordinance § 714 declares that any recorded existing undersized lots held in single and separate ownership prior to the adoption of the zoning regulations may be considered in compliance with the regulations.   Inasmuch as Ballard purchased his lot in 1980 and the ordinance was not adopted by the Town until 1988, a variance was not required in order to receive the special use permit.   This application of the ordinance is consistent with the purpose of single and separate ownership exception clauses which is to “protect long-term property owners from amendments that render useless their previously conforming property, thus preventing restrictive zoning ordinances from having a possible unconstitutional confiscatory effect” (Matter of De Troia v. Schweitzer, 87 N.Y.2d 338, 342, 639 N.Y.S.2d 299, 662 N.E.2d 779).

The foregoing conclusion renders academic petitioners' argument that the ZBA's actions were unauthorized.   And, in any event, contrary to petitioner's view, the variance, if one indeed was required, was properly granted.

 Petitioners' contention that the ZBA vote granting the variance was improper-because it was the second vote on the matter without the benefit of additional evidence or another hearing-lacks force in light of Town Law § 267-a(4), which expressly provides that a vote by a zoning board of appeals is valid upon the concurrence of a majority of the board.   Here, only three of the five-member board voted the first time Ballard's application was before it.   That vote resulted in one vote for, one vote against and one abstention.   This result was not, as petitioners urge, sufficient to deny the application, but rather amounted to a nonaction by the ZBA and thus required, what in fact occurred, a second vote by a duly constituted impartial majority of the board (see, Matter of Hoffis v. Zoning Bd. of Appeals of City of Glens Falls, 166 A.D.2d 850, 851-852, 563 N.Y.S.2d 183;  Matter of Bien v. City of Amsterdam, 126 A.D.2d 852, 853, 511 N.Y.S.2d 154, lv. denied 69 N.Y.2d 972, 516 N.Y.S.2d 659, 509 N.E.2d 354).   Lastly, the record belies petitioners' claim that the ZBA failed to make adequate findings to support its decision.

ORDERED that the judgment is affirmed, without costs.



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