Bivona v. Suffolk County Dept. of Health Services

• Decision Date: 14 November 1994
• Citation: 209 A.D.2d 515,619 N.Y.S.2d 67
• Parties: In the Matter of Joseph J. BIVONA, et al., Petitioners, v. SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 67

619 N.Y.S.2d 67

209 A.D.2d 515

In the Matter of Joseph J. BIVONA, et al., Petitioners, v. SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Nov. 14, 1994.

Zwissler, Diedolf, Feuer & Volkmann, Patchogue (Barbara M. Weltzek, of counsel), for petitioners.

Robert J. Cimino, County Atty., Hauppauge (Derrick J. Robinson, of counsel), for respondents.

Before BALLETTA, J.P., and PIZZUTO, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Suffolk County Department of Health Services Board of Review, dated December 9, 1992, which, after a hearing, denied the petitioners' application for variances from certain provisions of the Suffolk County Sanitary Code.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The petitioners own a parcel of land on Fire Island in Suffolk County, approximately 27,500 square feet in area, containing a single-family house. They proposed to divide the property into three subdivisions: one subdivision of 9,960 square feet containing the existing residence, and two subdivisions of 9,163 square feet, on each of which a new house would be built. The three parcels were to be served by three individual sewage disposal systems beneath the proposed houses and by one artesian well to be shared between the petitioners' three lots and one other adjacent lot. The petitioners also offered to pay for two additional artesian wells for neighboring properties.

The Suffolk County Sanitary Code provides, inter alia, that individual sewerage systems may be approved by the Suffolk County Department of Health Services (hereinafter the Department) if all parcels of the realty subdivision or development consist of an area of at least 20,000 square feet (see, Suffolk County Sanitary Code § 760-605[B][1]. The Sanitary Code further provides that individual water supply systems may be approved by the Department if all parcels in the realty subdivision or development consist of an area of at least 40,000 square feet (see, Suffolk County Sanitary Code § 760-606[C][1].

The petitioners sought substantial variances from the minimum 40,000-square-foot requirement for individual water supply systems and from the minimum 20,000-square-foot requirement for individual sewerage systems. The Department denied the application for a three-lot subdivision,...