Opinion
July 9, 1990
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as that judgment was superseded by the order, made upon reargument; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, without costs or disbursements, the judgment is vacated, the petition is granted to the extent of annulling the determination under review, and the matter is remitted to the respondent Zoning Board of Appeals of the Village of Irvington, which is directed to grant the application for the area variance upon such conditions as it deems appropriate.
We agree with the petitioner that she is entitled to the requested area variance under the doctrine of single and separate ownership (see, Matter of MacKay v. Mayhall, 92 Misc.2d 868). In the matter at hand, the subject parcel was joined at the rear with another plot owned by the petitioner, thus forming a "back to back split" (see, Matter of McDermott v. Rose, 148 A.D.2d 615, 616; Matter of Barretto v. Zoning Bd. of Appeals, 123 A.D.2d 692). Inasmuch as the petitioner established that both parcels have frontage on separate streets (see, Matter of Guazzo v Chave, 59 Misc.2d 1050), meet the depth characteristics of the area as it has developed (see, Matter of Scavone v. Volz, 34 A.D.2d 966; Matter of Guazzo v. Chave, supra), and were never used in conjunction with each other (see, Matter of McDermott v. Rose, supra; Matter of Barretto v. Zoning Bd. of Appeals, supra; Hemlock Dev. Corp. v. McGuire, 35 A.D.2d 567; cf., Barrett v. Rose, 152 A.D.2d 525), the denial of the area variance was arbitrary, capricious, and an abuse of discretion (see, Matter of Fuhst v Foley, 45 N.Y.2d 441). Accordingly, the matter is remitted to the Zoning Board of Appeals of the Village of Irvington with the direction that it grant the application to the extent indicated.
We have considered the parties' remaining contentions and find them to be without merit. Mangano, P.J., Rubin, Rosenblatt and Miller, JJ., concur.