Summary
In DeAngelis v. Minor, 8 Misc.2d 994, 166 N.Y.S.2d 568 (Sup.Ct.N.Y. 1957) the court stated at p. 569, "nor may the board deny the application on mere speculation that the State of New York may at some future date condemn some of the property."
Summary of this case from State ex Rel. Sr. Est. of K. C. v. ClarkeOpinion
August 8, 1957
Charles J. Cowan for petitioner.
Housel Mishkin for respondents.
Petitioner seeks a review of the determination of the Board of Appeals of the Village of Lindenhurst which denied her application to erect a motel on property situated in a business district.
The applicable provision of the zoning ordinance provides:
"Section 701: A building may be erected * * * for any of the following purposes:
* * *
"3. hotels, lodging and boarding houses"
Paragraph "3" of respondents' answer states that the following decision was rendered by the board:
"That the application of Josephine De Angelis be denied on the grounds that the size of the plot is insufficient in area to accommodate the proposed 12 unit motel.
"The business area is zoned to a depth of 100 feet, however, the State intends to widen the Northside of Montauk Highway which will reduce the depth considerably."
The record in no way supports the respondents' findings that the lot area is insufficient to comply with the ordinance; nor may the board deny the application on mere speculation that the State of New York may at some future date condemn some of the property.
An interesting point has been raised and discussed at length by counsel concerning whether or not a "motel" is a "hotel" within the meaning of the ordinance (cf. Matter of Von der Heide v. Zoning Bd. of Appeals, 204 Misc. 746, affd. 282 App. Div. 107 6).
However, the board's decision makes no distinction between a motel and a hotel, and the board has not denied the application on the basis of any distinction. The entire ordinance has not been submitted to the court. Drawn in 1931, it appears that the word "motel" may not be included anywhere in the ordinance. While motels, as such, may properly be excluded from certain areas of a community, they cannot be excluded from all areas. (See, e.g., Pierro v. Baxendale, 20 N.J. 17.)
My decision, however, must be made on the record presented and on the reasons given in the decision of the board. I find these reasons insufficient for a denial of petitioner's application.
Settle order providing for the issuance of a building permit to petitioner as requested.