Conley v. Town of Brookhaven Zoning Bd. of Appeals

• Decision Date: 13 July 1976
• Parties: , 353 N.E.2d 594 Raymond C. CONLEY et al., Appellants, v. TOWN OF BROOKHAVEN ZONING BOARD OF APPEALS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 681

386 N.Y.S.2d 681

40 N.Y.2d 309, 353 N.E.2d 594

Raymond C. CONLEY et al., Appellants, v. TOWN OF BROOKHAVEN ZONING BOARD OF APPEALS et al., Respondents.

Court of Appeals of New York.

July 13, 1976.

George A. Boehling, East Setauket, for appellants.

C. Francis Giaccone, P.C., Lake Ronkonkoma, for Town of Brookhaven Zoning Board of Appeals, respondent.

John P. Bracken, East Setauket, for Dean De Poy and another, respondents.

JASEN, Judge.

The question presented for our review is whether the zoning board of appeals abused its discretion, as a matter of law, in granting the respondents De Poys' application for an area variance.

Dean and Judith De Poy are the fee owners of a parcel of land situated in a rural residential area of the Village of East Setauket, Town of Brookhaven, Suffolk County. The parcel consists of 62,660 square feet of land and fronts on Shore Road, 140 feet south of Hawkins Avenue, which runs at right angles to Shore Road. A house, constructed at least 150 years ago and recognized as an historic structure by the local historical society, stands in the front portion of the parcel. Behind the house is a large wooded area of trees and underbrush. With the exception of a sale of a small portion of land to an adjoining owner, the property has remained unchanged since 1869.

The parcel is an 'A' residential zone, requiring a minimum lot area of 30,000 square feet, a frontage of 150 feet and a side yard of 60 total feet. The De Poys purchased the property in September, 1973 for $85,000. Although they were aware of the zoning requirements, $20,000 of the sales price represented the value which would inure to the owner should the property be divided into two separate lots. In January, 1974, the De Poys applied for a zoning variance which would permit them to create a second lot of 30,000 square feet in the rear portion of their parcel and to build a residence thereon. The variance application was prompted by the need to construct an access road to the landlocked rear portion of the property. The road would run along the north side of the De Poy property and, thus, would run behind the residences which front on Hawkins Avenue. The access road, an alleyway in essence, would be 35 feet wide ¹ and 239.62 feet in length, leaving the front portion of the property with a frontage of 98.43 feet and a side yard setback of 30 feet. Although both proposed lots would satisfy the minimum area requirements, the rear lot's frontage would be below the zoning requirement consisting only of the 35-foot-wide road and the front lot would be deficient both by its frontage and by one side yard. ² Several of the neighboring landowners, particularly those who own Hawkins Avenue property behind which the road would run, and the Civic Association of the Setaukets, Inc., objected to the variance application. Interestingly, most of the homes in the vicinity are in themselves nonconforming, and the largest of the four lots on Hawkins Avenue abutting the proposed De Poy access road consists of but 12,000 square feet.

The objections contended that the building of the road and second residence would burden the local environment, greatly increase the density of the nearby public roads, would impair their own scenic views and create an additional traffic hazard. In addition, it was alleged there would be drainage problems and that the road would be inaccessible to fire and emergency apparatus. Objection was also made regarding the clearing of trees and underbrush that would be necessitated by the construction of residence and road. After a public hearing, the zoning board of appeals granted the requested variances, concluding that the erection of a new house on the second lot would not diminish the property values of the neighboring residences, that the De Poys were not obligated to maintain the wooded area, that the building of a dwelling on a lot meeting the minimum zoning area requirements would not substantially increase the density of the area and that requiring the owner to pay taxes on an area twice the size of the minimum zoning would work a financial hardship.

The neighboring property owners commenced this proceeding to have the board's determination annulled. Special Term denied the petition upon the ground that there was sufficient showing of practical difficulties, citing Matter of Mastromonaco v. Bartels (16 A.D.2d 676, 227 N.Y.S.2d 74). The Appellate Division, with two Justices dissenting, affirmed the order of Special Term, without opinion. (49 A.D.2d 567, 370 N.Y.S.2d 182.)

On this appeal, we are concerned with the granting of an area variance and the supporting proof need not be as compelling as is required to sustain a request for a use variance. The difference in the level of proof is explained by the fact that, generally, an area variance will release a landowner from the duty to follow the strict letter of the zoning ordinance so that the land may be put to a permitted use. On the other hand, a use variance, if granted, will result in the use of land in a manner inconsistent with the basic character of the neighborhoos. (Matter of Wilc v. Zoning Bd. of Appeals of City of Yonkers, 17 N.Y.2d 249, 254, 270 N.Y.S.2d 569, 571, 217 N.E.2d 633, 634, 2 Rathkopf, Law of Zoning and Planning, p. 45-1.) The oft-stated standard by which a request for an area variance is to be measured is whether strict compliance with the zoning ordinance will result in practical difficulties. (E.g., Matter of Wilcox v. Zoning Bd. of Appeals of City of Yonkers, supra; Matter of Village of Bronxville v. Francis, 1 A.D.2d 236, 238, 150 N.Y.S.2d 906, 908, affd. 1 N.Y.2d 839, 153 N.Y.S.2d 220, 135 N.E.2d 724, 2 Anderson, New York Zoning Law and Practice (2d ed.), §§ 18.32, 18.33, 18.40.) The local zoning boards have discretion in considering applications for variances and the judicial function is limited one. The Courts may set aside a zoning board determination only where the record reveals illegality, arbitrariness or abuse of discretion. (Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 32, 286 N.Y.S.2d 249, 250, 233 N.E.2d 272, 273; Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24.) Phrased another way, the determination of the responsible officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence in the record. (...