Fort Ridge Builders, Inc. v. Zoning Bd. of Appeals of Town of Smithtown

• Decision Date: 31 July 1978
• Citation: 64 A.D.2d 704,407 N.Y.S.2d 541
• Parties: In the Matter of FORT RIDGE BUILDERS, INC., Respondent, v. ZONING BOARD OF APPEALS OF TOWN OF SMITHTOWN, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 541

407 N.Y.S.2d 541

64 A.D.2d 704

In the Matter of FORT RIDGE BUILDERS, INC., Respondent, v. ZONING BOARD OF APPEALS OF TOWN OF SMITHTOWN, etc., et al.,

Appellants.

Supreme Court, Appellate Division, Second Department.

July 31, 1978.

Dudley L. Lehman, Smithtown, for appellants.

Frank J. Mack, Huntington, for respondent.

Before SUOZZI, J. P., and GULOTTA, COHALAN and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals, made after a public hearing, which denied petitioner's application for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County, entered January 5, 1978, which annulled the board's determination and directed that the area variance be granted and a building permit be issued.

Judgment affirmed, without costs and disbursements.

The Zoning Board of Appeals made the following findings of fact which are relevant to the issues raised on this appeal:

"A, The entire parcel is approximately 1.3 acres which is well within the R-43 zoning district requirement ;

"B, In 1966 The applicant purchased the premises as two separate and distinct parcels.

"C, Since that time, the 'out' parcel passed through a number of other persons and is not now owned by the applicant.

"D, A building permit had been issued for the subject parcel in 1965-1966;

"E, It appears that the Applicant had purchased the parcel on the strength of obtaining the permit " (emphasis supplied).

However, it also found:

"G, There are no other flag lots in the Immediate area of the subject parcel;

"H, The limited amount of frontage Would prevent reasonable ingress and egress of emergency vehicles. It was testified that the applicant would put in a 12 to 18 foot wide driveway;

"I, The variance, if granted, Would not be within the character of the neighborhood;

"J, It appears that the applicant was aware of the split and as a builder Should have been alerted as to potential difficulties " (emphasis supplied).

In short, the sole reasons for disapproval of the petitioner's application for a variance were (1) the alleged problem of reasonable ingress and egress for emergency vehicles, (2) the claim that the variance, if granted, would not be within the character of the neighborhood, and (3) the claim that the petitioner should have been alerted to potential difficulties. Neither the first nor the second reason is supported by this record, and the third reason in effect a claim of self-imposed hardship will not in and of itself preclude the granting of an area variance (Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 455, 322 N.Y.S.2d 696, 700, 271 N.E.2d 537, 540; Matter of Courtesy Estates v. Schermerhorn, 51 A.D.2d 966, 380 N.Y.S.2d 325; Matter of De Sena v. Board of Zoning Appeals, --- N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d ---- (June 15, 1978)).

The record indicates that the houses on nearby lots 23 and 12 are nearly as far back from the road as the proposed house, and that the house on lot 22 is further back. Furthermore, petitioner proposes to put in a 12 to 18-foot wide driveway. In Matter of Mastromonaco v. Bartels, 16 A.D.2d 676, 227 N.Y.S.2d 74, this court affirmed an order which directed the granting of a variance although the strip of land connecting the "flag" plot with the roadway was only 17 feet wide In toto. Accordingly, the board's finding that emergency vehicles would have difficulty in gaining access to the subject parcel is completely arbitrary.

As for the finding that the character of the neighborhood would be adversely affected, it is undisputed that in the area there are nine other flag lots with a frontage of 40 feet or less and three flag lots with a frontage of 50 feet.

Finally, the contention made in the dissenting memorandum, that the petitioner illegally subdivided his land, was not raised by the appellants at any stage of the proceedings under review; nor was it argued on this appeal. Indeed, such a contention is at variance with the board's own finding that the petitioner "purchased the premises as two separate and distinct parcels."

GULOTTA, COHALAN and MARGETT, JJ., concur.

SUOZZI, J. P., dissents and votes to reverse the judgment and dismiss the proceeding on the merits, with the following memorandum:

Petitioner, a corporation which has been in the custom building business since 1960, sought an area variance from the appellant board in order to build a house (and thereafter sell to a purchaser) on a flag shaped lot having a 40-foot frontage on a road in a zone requiring frontage of 150 feet. The board denied the application on the following grounds:

(1) a building permit issued to petitioner when it first purchased the subject property in "1965-66" was erroneously issued;

(2) the property's flag shape and limited frontage on a road constituted a fire hazard; and

(3) the erection of a house on this type of lot would adversely affect property values in the immediate vicinity.

Special Term found that there was no proof that the building permit issued in 1965 was erroneously issued. It further found that there existed nine flag lots with frontage of 40 feet or less and three flag lots with frontage of 50 feet in the neighboring area and that surrounding home values had appreciated. Special Term held that the existence of these other flag shaped lots belied the board's claim that access for emergency vehicles was a problem. In conclusion, it held that petitioner had demonstrated "practical difficulties" and the denial of an area variance under these circumstances was arbitrary and capricious.

The majority of this court has chosen to affirm the judgment entered at Special Term.

I disagree with Special Term and the majority. In my view, the facts adduced on this record present a classic example of a self-created hardship by the petitioner which is sufficient to warrant a denial of an area variance.

I now turn to the pertinent facts of this case.

On November 5, 1965 the petitioner entered into a contract to purchase a parcel of land measuring approximately 508 feet by 200 feet for $15,500. The contract described the parcel as:

"(K)nown and designated as parts of Lots # 5 and # 6, on a certain map entitled, 'Map of Hickory Hill, Section "A", situated at Fort Salonga, Town of Smithtown, Suffolk County, New York, belonging to Ethel Bartley', which said map was filed in the Office of the Clerk of the County of Suffolk on April 1, 1946, as Map # 1477, more particularly bounded and described in Schedules 'A' and 'B', which Schedules are attached hereto and made a part of this contract."

The land described in Schedule "A" is a 160-foot by 272-foot parcel. The land described in Schedule "B" is the flag shaped parcel with the 40-foot frontage which is the subject of the instant appeal. Purchased together as one parcel, the property had frontage of 200 feet on a road and also satisfied the other area requirements of the ordinance.

The contract of sale was a contingent contract. The condition was as follows:

"It is understood and agreed that the sale of these premises is subject to purchaser obtaining a building permit from the Building Department of the Town of Smithtown for Parcel 'B'. The purchaser is to make immediate and diligent application for the aforementioned building permit.

"It is further understood and agreed that in the event the purchaser is unable to obtain the aforementioned building permit for Parcel 'B', on or before December 15, 1965, the purchaser, by written notice to the attorney for the seller, which notice shall be given prior to December 17, 1965, may cancel this contract and the seller shall return to the purchaser all and any monies deposited under the terms of this contract. Thereupon this contract shall be deemed null and void and neither party shall be obligated to the other."

Although the above cited language refers only to the flag shaped parcel and does not refer to the other parcel, the contract also provided that:

"Said premises are sold and are to be conveyed subject to:

"4. Subject to covenants, restrictions of record, if any, provided same does not prohibit the building of a one-family residential house on each of the parcels described in Schedules A &...