# Young v. Board of Zoning Appeals > Appellate Division of the Supreme Court of the State of New York · December 28, 1970 · 35 A.D.2d 430 URL: https://www.frixlaw.com/law-library/cases/5775827 ## Case - **Full name:** In the Matter of Harold Young v. Board of Zoning Appeals of the Incorporated Village of Great Neck Estates - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** December 28, 1970 - **Citations:** 35 A.D.2d 430; 317 N.Y.S.2d 396; 1970 N.Y. App. Div. LEXIS 3040 - **Precedential status:** Published - **Opinion:** Dissent by Benjamin - **Judges:** Benjamin, Hopkins - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5775827 ## Opinion text Benjamin, J. (dissenting). In my opinion, Contino v. Incorporated Vil. of Hempstead (27 N Y 2d 701, revg. 33 A D 2d 1043 on the dissenting opinion in this court) controls this case and requires confirmation of the Board of Appeals’ determination. * Indeed, in Contino the property owners had a markedly stronger case for a variance than the petitioner at bar, yet the Court of Appeals held that they were not entitled to it. The statement in the majority opinion that Contino is distinguishable because it involved a substandard plot, while this case does not, is not supported by the records in the two cases. In Contino, as at bar, the property owners owned an oversize plot which they wished to divide into smaller parcels; in Confino, as at bar, each of the resulting parcels was larger than the minimum area required by the zoning ordinance; in Contino the nonconforming resulting parcel was nonconforming only with respect to one front yard, while at bar the nonconforming resulting parcel does not meet the requirements with respect to the rear yard, the height of the building, the area of the building, and the location of the cesspool. An examination of Contino vis-á-vis the case at bar clearly shows why the holding in Contino must be applied here. In Contino the resulting parcel was a corner plot, trapezoidal in shape, and it abutted on three streets; the zoning ordinance required a front yard 25 feet deep on each side of a corner plot that abutted on a street; the proposed house on that parcel failed to comply with the zoning ordinance in the single respect that one of its three front yards was only 15 feet deep, with the other two meeting the 25-foot requirement; the inadequate front yard was actually what would normally have been the rear yard, since it was at the back of the proposed house, and a rear yard had to be only 10 feet deep; and, because the house would have three front yards, it obviously would have had more space around it for lawns, flowers and shrubbery than other houses in the area, and it could not possibly have had an adverse effect on the light and air of any adjoining house. Yet on those facts the Court of Appeals denied relief to the property owners, mainly on the ground that “it is not an unreasonable exercise of discretion [by a Board of Appeals] to deny permission to build on sub *434 standard plots where * * * the substandard condition results from acts of an owner of a conforming plot in so subdividing his holding as to create one or more parts of insufficient area * * * [and] there is no infringement of constitutional right in the requirement that land may not be so divided as to create substandard plots” (Contino v. Incorporated Vil. of Hempstead, 33 A D 2d 1043, 1044). In the present case the nonconformity of the parcel is much more serious than in Contino. Here, the rear yard would lack 3 feet of the required 15; the area of the house would exceed the permitted maximum; one wall of the house would exceed the permitted height by more than a third; and the cesspool would be only about half of the required distance from the building. Even more serious is the fact that in this case, unlike Contino, there is an express provision in the Zoning Ordinance (§ 30.03) which prohibits the division of a plot in such a way that either the remaining part or the part set off becomes nonconforming ; and it is undisputed that the division of the plot in this case created the just-described nonconformities. If in Contino, without an express prohibition in the ordinance, it was held not an abuse of discretion to deny permission to create a nonconforming plot by splitting up a conforming plot, I do not see how we can say it was an abuse of discretion to do the same thing in this case, where such ruling by the Board of Appeals conformed to an ordinance squarely forbidding such division of a plot. And if it was not an abuse of discretion to deny relief in Contino, where the nonconformity was single and minimal, it clearly cannot be an abuse of discretion to deny relief here, where the nonconformities are multiple and substantial. In my view, the majority is merely substituting its discretion for that of the Board of Appeals and that it may not do. It is not and cannot be our function to make ad hoc original determinations on variance applications; that is the function of the Board of Appeals. Our function is merely to review the board’s determinations; and, if they have a rational basis, to confirm them, even though we may ourselves have exercised discretion differently were we the board. Were it otherwise, the Board of Appeals would become merely an advisory body and the courts would assume the functions of the board. That is a burden which the courts should not and cannot assume, as it is not a proper judicial function and it was never even remotely contemplated that they undertake it. The judgment should be reversed, the petition dismissed on the merits, and the determination of the Board of Appeals confirmed. *435 Christ, P. J., Rabin and Brennan, JJ., concur with Hopkins, J.; Benjamin, J., dissents and votes to reverse the judgment, dismiss the proceeding on the merits and confirm appellant’s determination, with an opinion. Judgment affirmed, without costs. The holding in Gontino has recently been reaffirmed and re-emphasized in Matter of 113 Hillside Ave. Corp. v. Zaino (27 N Y 2d 258). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5775827. Public record. Not legal advice.