Cohalan v. Schermerhorn

• Decision Date: 06 December 1973
• Citation: 77 Misc.2d 23,351 N.Y.S.2d 505
• Parties: In the Matter of Peter F. COHALAN, Supervisor, et al., comprising the Town Board of the Town of Islip, Petitioners, v. William H. SCHERMERHORN, Chairman, et al., constituting the Zoning Board of Appeals of the Town of Islip, and C.P. Builders, Inc., Respondents.
• Court: New York Supreme Court

Page 505

351 N.Y.S.2d 505

77 Misc.2d 23

In the Matter of Peter F. COHALAN, Supervisor, et al.,

comprising the Town Board of the Town of Islip, Petitioners, v. William H. SCHERMERHORN, Chairman, et al., constituting the

Zoning Board of Appeals of the Town of Islip, and

C.P. Builders, Inc., Respondents.

Supreme Court, Special Term, Suffolk County, Part I.

Dec. 6, 1973.

Henry G. Wenzel, III, Islip Town Atty., Islip, for petitioners.

James V. Fallon, Sayville, for respondents.

Donner, Fagelson & Hariton, P.C., Bay Shore, for respondent, C.P. Builders.

LEON D. LAZER, Justice.

The Islip Town Board (the 'town') has instituted this Article 78 proceeding to annul a series of five variances granted by the respondent Islip Board of Zoning Appeals (the 'board') the respondent C. P. Builders, Inc. (the 'owner'). The parcel involved has 396 feet of street frontage and 110 feet of depth, and was purchased less than a year before the owner applied to the board for relief. It consists of a single one acre lot on an old filed map, lying in the single-family 'Residence A' district which requires of each building lot an area of 11,250 square feet and a frontage of 75 feet, here limiting the plot yield to three. The variances authorized the construction of five dwellings on lots which contained 8,690 square feet of area and frontages of 79 to 80 feet. The grant was made subject to Planning Board approval.

The variance applications were predicated on the theory that compliance with zoning ordinance provisions relating to plot area would result in street frontages exceeding 100 feet which the owner characterized as 'confiscatory' under the circumstances. No 'dollars and cents' testimony was offered at the hearing (see Stanley Park, Inc. v. Donovan, 34 A.D.2d 690, 312 N.Y.S.2d 472). After inspecting the property the board approved the applications concluding 'that the applicant will suffer economic injury if the strict application of the area ordinance were enforced to require the applicant to provide an improved plot frontage in excess of 102 feet in lieu of the required 75 feet.' The board also found that the contiguous parcels were substandard and that the proposed reduced lots conformed substantially to the plots in the immediate surrounding area.

The town has attacked the board's determination as a usurpation both of the town's legislative function to rezone and the Planning Board's powers to approve subdivisions and it further urges that the variances are not supported by the record.

The variances do not constitute a rezoning.

A board of appeals has no power to remake a zoning map under the guise of granting a variance (Scarsdale Supply Co. v. Vil. of Scarsdale, 8 N.Y.2d 325, 206 N.Y.S.2d 773, 170 N.E.2d 198) for such a change constitutes an exercise of legislative power (Old Farm Road v. Town of New Castle, 26 N.Y.2d 462, 311 N.Y.S.2d 500, 259 N.E.2d 920; Levy v. Board of Standards and Appeals, 267 N.Y. 347, 196 N.E. 284; Reed v. Board of Standards & Appeals, 255 N.Y. 126, 174 N.E. 301; 101 C.J.S. Zoning § 283). A variance may be regarded as a zoning amendment if it alters in any fundamental and substantial respect the zoning scheme which is articulated in the ordinance (3 Anderson, American Law of Zoning § 14.68 at 61; Mayflower Prop., Inc. v. City of Fort Lauderdale, 137 So.2d 849 (Fla.App.); Bryant v. Lake County Trust Co., 284 N.E.2d 537 (Ind.)). In determining whether the zoning province of the legislative body has been invaded, size is a significant factor (Van Deusen v. Jackson, 35 A.D.2d 58, 312 N.Y.S.2d 853, aff'd, 28 N.Y.2d 608, 319 N.Y.S.2d 855, 268 N.E.2d 650; Matter of Beach Haven Jewish Center v. Foley, 18 A.D.2d 917, 238 N.Y.S.2d 181, rev'd on dissenting opinion below, 13 N.Y.2d 973, 244 N.Y.S.2d 778, 194 N.E.2d 687; Gardner v. Le Boeuf, 24 Misc.2d 511, 204 N.Y.S.2d 468, aff'd, 15 A.D.2d 815, 226 N.Y.S.2d 678) for the variance which most closely resembles an amendment is one which applies to a large or extensive tract of land (3 Anderson, American Law of Zoning § 14.69). Applications for variances which change the density or use of such tracts have been characterized as 'futile' and will not receive judicial approval (see Levitt v. Incorporated Vill. of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212, 160 N.E.2d 501 (127 acres); Scarsdale Supply Co. v. Vil. of Scarsdale, Supra (3.4 acres); Van Deusen v. Jackson, supra (7.365 acres); Gardner v. Le Boeuf, supra (14 acres); Spadafora v. Ferguson, 182 Misc. 161, 48 N.Y.S.2d 698, aff'd, 268 App.Div. 820, 50 N.Y.S.2d 408 (33 lots--13 houses); Von Gerichten v. Schermerhorn, 49 Misc.2d 800, 268 N.Y.S.2d 589 (14 parcels); Matter of Northampton Colony v. Board of Appeals of Inc. Vil. of Old Westbury, 30 Misc.2d 469, 219 N.Y.S.2d 292, aff'd, 16 A.D.2d 830, 230 N.Y.S.2d 668 (5 1/2 acres); Hiscox v. Levine, 31 Misc.2d 151, 216 N.Y.S.2d 801 (modification by plg. bd.--37.4 acres); Hess v. Zoning Board of Appeals of Village of Sands Point, 17 Misc.2d 22, 188 N.Y.S.2d 1028 (40 acres); 2 Anderson, New York Zoning Law & Practice § 18.58; 2 Rathkopf, The Law of Zoning & Planning § 39--10).

Research has revealed no case of judicial disapproval of a variance based on property size where but a single acre was involved. Neither has it disclosecd any determination holding that a density increase from three residences to five in a high density area constitutes a usurpation of legislative power. The instant variances do not amend the zoning ordinance or change the boundaries of the district (Levy v. Board of Standards & Appeals, supra), radically alter the nature of the entire zone (Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406) or the essential character of the neighborhood (101 C.J.S. Zoning § 282), destroy the general scheme of the zoning law (Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N.Y. 86, 92 N.E.2d 903), affect a substantial change in the comprehensive plan (2 Rathkopf, supra, § 39--10), seriously disarrange the zoning pattern or defeat the general purpose of the zoning law (Beach Haven Jewish Center v. Foley, supra; Van Deusen v. Jackson, supra). The single family development of the instant parcel based on the board's grants will not upset the zoning balance of the large residential zoning district in which it lies. Whatever its other deficiencies as an administrative determination the board's action did not constitute an

appropriation of the town's legislative function. The

variances do not constitute an unauthorized

subdivision of land.

Although the variances were granted subject to Planning Board approval, the town relief on Van Deusen v. Jackson, supra, to support its theory that the jurisdiction of the planning agency was illegally infringed by variances based upon subdivision into five lots.

In Van Deusen, a 7.365 acre parcel which lay in a 15,000 square foot district had originally been subdivided. The land was subsequently rezoned into a 40,000 square foot district and the owner then obtained from the board of appeals approval of a map showing nine 25,000 square foot lots. Characterizing the object of the variance as the 'sanction of the development of his land as a subdivision at odds with the ordinance,' the court found that 'the other factors in the case, Coupled with size, lead to the conclusion that the variance overran the powers of the respondents.' (p. 61, 312 N.Y.S.2d p. 857; emphasis supplied). In Van Deusen the owner sought to by-pass the planning board. Here the board has specifically conditioned its grant on approval by the Planning Board. There size was a determinative factor. Here the parcel is small.

That the instant owners must obtain approval from the Planning Board to subdivide into five lots is beyond dispute (see Incorporated Village of Nissequogue v. Meixsell, 55 Misc.2d 1069, 287 N.Y.S.2d 555, aff'd, 32 A.D.2d 1029, 303 N.Y.S.2d 488; Ashmill Homes, Inc. v. Town of Islip, N.Y.L.J., 12/4/69, p. 18, col. 2). The real issue is which of the two administrative agencies has priority of jurisdiction. The board has approved the applications subject to Planning Board approval, but the town urges that plat approval was a prerequisite to the variances. Rathkopf supports this view, reasoning that lot variances of restrictions relating to non-existent lots and lot lines mandate that 'the proper procedural order in New York is first to secure approval of the subdivision and then to apply for such variance as may be necessary' (3 Rathkopf, supra, § 71--49). The New Jersey Supreme Court reached a similar conclusion, suggesting that upon an application to the planning board conditional on subsequent approval of a variance, the

'(p)lanning board may, with its approval express its non-binding opinion as to whether the variance would be conducive to or detrimental to the planning scheme because of the undersize of a lot.' (Loechner v. Campoli, 49 N.J. 504, 512, 231 A.2d 553, 558; see also Ryan v. Bd. of Adjust. Woodbridge Tp., 49 N.Y. 520, 231 A.2d 562.)

Had a subdivision plat which contained the five non-conforming lots first been filed with the Planning Board, that agency would have been obligated to conduct a public hearing to consider it (see Northern Operating Corp. v. Chamberlain, 34 A.D.2d 686, 312 N.Y.S.2d 398 aff'd, 31 N.Y.2d 704, 337 N.Y.S.2d 513, 289 N.E.2d 554). The town cites Matter of Weinstein v. Planning Bd. of Vil. of Great Neck, 28 A.D.2d 862, 281 N.Y.S.2d 148, aff'd, 21 N.Y.2d 1001, 290 N.Y.S.2d 922, 238 N.E.2d 325, for the proposition that a planning board is without power to approve a map which violates the zoning ordinance. Northern Operating Corp., supra, establishes the doctrine that the failure of a planning board to conduct a public hearing mandates issuance of a certificate of approval after 45 days even if the plat is non-conforming. Nevertheless, it is clear from the opinion of the Court of Appeals that such certificate of approval does not relieve an applicant...