Opinion
October 31, 1960
In a proceeding pursuant to article 78 of the Civil Practice Act to review a determination of the Zoning Board of Appeals of the Town of Greenburgh, Westchester County, denying petitioner's application for a variance in the town's zoning ordinance, and to direct said board to grant the variance, the petitioner appeals from an order of the Supreme Court, Westchester County, dated February 5, 1960, which dismisses its petition. Petitioner seeks the variance for the purpose of erecting a six-story multifamily dwelling, 65 feet high, in a district permitting multifamily dwellings of not more than three stories with a maximum height of 35 feet. Order reversed on the law and the facts, without costs, and matter remitted to the respondent Zoning Board of Appeals for the making of a determination consistent herewith. In our opinion, the petitioner established practical difficulties and unnecessary hardship. Hence, the determination of the Zoning Board of Appeals denying the variance as to the height of the proposed building was arbitrary and capricious. (Cf. Matter of Vergara v. Campbell, 8 A.D.2d 823, motion for leave to appeal denied 7 N.Y.2d 706; Matter of McManus v. Zoning Bd. of Appeals of City of New Rochelle, 3 A.D.2d 932.) Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Christ, Pette and Brennan, JJ., concur; Ughetta, Acting P.J., dissents and votes to affirm the order upon the opinion of the Special Term. Kleinfeld, J., dissents and votes and affirm. ( 25 Misc.2d 684.)