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MATTER BEN MENDOZZA v. BOARD ZONING APPEALS TOWN SMITHTOWN (07/22/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 22, 1968

IN THE MATTER OF BEN MENDOZZA, RESPONDENT,
v.
BOARD OF ZONING APPEALS OF THE TOWN OF SMITHTOWN, APPELLANT

Appeal from a judgment of the Supreme Court, Suffolk County, dated August 31, 1967, which (1) annulled appellant's determination, made after a rehearing, reversing its previous decision, which had granted a variance, and denying such variance; and (2) reinstated the building permit which had been issued. Judgment reversed, on the law, with costs, and matter remitted to appellant for a further hearing and for the making of specific findings, as hereinafter indicated. No questions of fact were considered.

Christ, Acting, P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.

In our opinion, the rehearing of petitioner's application for a variance was properly held pursuant to subdivision 6 of section 267 of the Town Law; and, on the basis of the amended zoning ordinance and the facts disclosed at the rehearing, appellant could properly reverse its previous grant of a variance and revoke the previously-issued building permit, unless petitioner had acquired a vested right to the variance and building permit by the doing of substantial work and the incurring of substantial expense, in good faith reliance upon the variance and building permit prior to the amendment of the ordinance. However, the record does not adequately disclose whether petitioner did or did not acquire such vested right; and a further hearing on that issue is therefore required. After such rehearing, appellant should make specific findings as to all the issues involved in this variance application, and not merely those relating to the acquisition of a vested right, since no adequate findings were made when appellant rendered its decision denying the variance after the rehearing.

19680722

© 1998 VersusLaw Inc.



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