IN THE MATTER OF SHAHID U. KHAN, RESPONDENT, v. ZONING BOARD OF APPEALS OF
THE VILLAGE OF IRVINGTON ET AL., APPELLANTS.
87 N.Y.2d 344, 662 N.E.2d 782, 639 N.Y.S.2d 302 (1996).
January 16, 1996
2 No. 249(1996 NY Int. 5)
Decided January 16, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Kevin J. Plunkett, for Appellants.
Richard T. Blancato, for Respondent.
SMITH, J.:
Respondent Khan sought to construct a residence on property that was
made subject to environmental zoning regulations soon after he bought
it. The primary issue in this case is whether a separate ordinance
which provides an exemption from zoning regulations for property held
in single and separate ownership gave respondent a right to build in
spite of the new environmental zoning regulations. Because we
determine that the ordinance providing the exemption here does not
apply to the zoning regulation at issue designed to protect property
from the effects of floods, we reverse.
Respondent, Shahid U. Khan, seeks, pursuant to CPLR Article 78, to
vacate and annul a decision by appellant, Zoning Board of Appeals of
the Village of Irvington (hereinafter ZBA), which denied respondent's
request for issuance of a building permit or, in the alternative, a
variance. Respondent is the owner of two parcels (both improved and
unimproved) of real property (Tax Map Sheet 10B, Block 229, Lots 83,
84, 85 and portions of 81 and 82) located in the Village of Irvington,
Westchester County, New York. The two parcels were purchased on
January 27, 1989, under a single contract of sale with two separate
deeds. No apportionment of the purchase price was made between the two
parcels by the parties or the contract. However, the valuation of the
two parcels for transfer tax purposes was $270,000 for the improved
parcel and $10,000 for the unimproved parcel. Respondent acquired the
unimproved parcel in his name only and acquired the parcel improved
with a single-family dwelling jointly with his wife. The improved
parcel is not in issue here. Both parcels were held by the previous
owners as one lot. Respondent divided the parcels in order to build on
the unimproved property and sell it.
SNIPPETS:
THE VILLAGE OF IRVINGTON ET AL.,
Richard T. Blancato, for Respondent.
Respondent Khan sought to construct a residence on property that was made subject to
The primary issue in this case is whether a separate ordinance which provides an exemption
Because we determine that the ordinance providing the exemption here does not apply to the
Respondent, Shahid U. Khan, seeks, pursuant to CPLR Article 78, to vacate and annul a
Respondent is the owner of two parcels of real property located in the Village of Irvington,
However, the valuation of the two parcels for transfer tax purposes was $270,000 for the
Respondent acquired the unimproved parcel in his name only and acquired the parcel improved
On January 30, 1989, after the purchase and division of the two parcels, respondent applied
Respondent was informed that because the subject property was located in a "flood plain
On February 28, 1989, approximately one month after respondent purchased the subject
The purpose of these regulations was to protect environmentally sensitive areas such as
Included within the regulations are all land located on a flood plain, wetlands, watershed
On March 29, 1989, respondent applied to the ZBA for a favorable interpretation of the zoning
Respondent contended that he had a constitutional right to build a residence on the property,
The court found the Resource regulations were not part of the minimum width and area
The Appellate Division held that since respondent owned the subject property in single and
Some of the courts of this State have recognized a common law right to an exemption from
82 NY2d 735; Matter of Morin v Zoning Bd.
163 AD2d 389;
of Appeals, supra; Matter of M.E.F. Bldrs., Inc. v Siegel, supra; Modular Homes Corp. v
In contrast, where the municipality has not created an exemption as a matter of legislative
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