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MATTER MORTON BRODSKY ET AL. v. BARNET LEVY ET AL. (08/15/68)
SUPREME COURT OF NEW YORK, MONROE COUNTY
1968.NY.42783 <http://www.versuslaw.com>; 295 N.Y.S.2d 20; 58 Misc. 2d 247
August 15, 1968
IN THE MATTER OF MORTON BRODSKY ET AL., PETITIONERS,v.BARNET LEVY ET AL., CONSTITUTING THE PLANNING BOARD AND BOARD OF APPEALS OF THE TOWN OF BRIGHTON, RESPONDENTS
Levy & Levy (David M. Levy of counsel), for petitioners.
E. James Springer and Culley, Marks, Corbett, Jordan, Tanenbaum & Reifsteck for respondents.
Jacob Ark, J.
This is an article 78 proceeding to annul and set aside a variance granted by the respondents, constituting the Board of Appeals of the Town of Brighton, New York, to the applicants, Janis B. Maxion and William J. Maxion, to erect a barn on their property at 1463 Elmwood Avenue in the Town of Brighton.
Admittedly, the applicants raise and sell racing horses as a commercial venture on a 35-acre parcel of land on which they grow hay to feed the horses and maintain a permanent pasture. Occasionally, they raise horses for others and buy horses.
There is no direct testimony concerning the existing buildings on this acreage, although Mr. Maxion in his testimony referred to an old barn, and counsel for the respondents in their brief stated that the applicants reside in a dwelling on the premises. A photograph submitted with respondents' return indicates that there are several structures on the premises in addition to those mentioned.
There is nothing before the court relating to the measurements of the proposed barn, but some idea of its size may be gathered from Mr. Maxion's testimony that it would be for a dozen horses, and that: "The main reason for this barn is just a big, open area so that we can train horses in the winter and in the wet times. We fall so far behind the horses that come off Long Island that have weather conditions where they can get on their land, and we can't do it, and we just need a big open area to be able to work the horses and get them in condition for the racing." In the respondents' brief it is stated that the "barn would be used as an indoor training area".
The premises are in a Class B Residential District (§ 42-26A) which permits principal uses for structures as regulated in Class A Residential Districts (§ 42-25A), which are the following:
"A. Permitted principal uses or structures.
"(1) One (1) single-family dwelling.
"(2) Church or similar place of worship, parish house, convent, rectory or parsonage.
"(3) Public or private, nonprofit, pre-kindergarten, kindergarten, elementary, secondary school or college, accredited by the New York State Department of Education.
"(5) Private golf course operated by a nonprofit, membership corporation, exclusively for members and guests, including club facilities, pro shop or accessory dining room with or without bar facilities, by special permit of the Board of Appeals.
"(6) Club swimming pool (See Part 6)." Permitted accessory uses or structures in Class B Residential District (and the keeping of not more than two roomers or boarders) (§ 42-26B) are those permitted and regulated in Class A Residential Districts (§ 42-25B), which require no enumeration.
It is undisputed that the operations conducted by the applicants are a nonconforming use as they do not come within the uses permitted in the Class B Residential District. The respondents maintain, however, that two principal uses exist on this one parcel of land, consisting of the applicants' residence and the operation of a farm. ...