Lakeland Park Estates, Inc. v. Scheyer

• Decision Date: 05 July 1988
• Citation: 530 N.Y.S.2d 240,142 A.D.2d 582
• Parties: In the Matter of LAKELAND PARK ESTATES, INC., v. Richard I. SCHEYER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 240

530 N.Y.S.2d 240

142 A.D.2d 582

In the Matter of LAKELAND PARK ESTATES, INC., v. Richard I. SCHEYER, et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 5, 1988.

Joseph D'Elia, Huntington (George W. Clarke, of counsel), for appellant.

Guy W. Germano, Town Atty., Islip (Ernest J. Cannava, of counsel), for respondents.

Before THOMPSON, J.P., and SPATT, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Islip, dated March 18, 1986, which denied the petitioner's application for width and area variances to construct a one-family dwelling, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered July 31, 1987, which dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner is the contract vendee of an unimproved parcel of land located on Springdale Drive, Ronkonkoma, New York. The parcel is located in the Residence "A" District and is 50.17 feet wide and has a total area of approximately 10,890 square feet. The petitioner plans to construct a one-family dwelling on the parcel. In order to do so, it must obtain variances from the area density and width requirements of the zoning ordinance which mandates that the plot have an area density of 11,250 square feet and a width of 75 feet (see, Islip Town Code § 68-81 § 68-82). The conveyance of the property is conditioned upon the grant of the necessary variances. The petitioner seeks to obtain the variances as a matter of right pursuant to the single and separate ownership exception provided by Islip Town Code § 68-81(C), and 68-83(C). These sections require "compliance with all zoning requirements other than the one for which the single and separate dispensation is conferred" (Matter of Dittmer v. Scheyer, 74 A.D.2d 828, 425 N.Y.S.2d 175; see also, Matter of Pellati v. Scheyer, 115 A.D.2d 606, 496 N.Y.S.2d 268). Inasmuch as the petitioner is seeking two variances, it fails to comply with the aforesaid provisions. Moreover, a second requirement of the applicable sections of the code is that the parcel for which the single and separate dispensation is sought must not have come into common ownership with adjoining property (see, Islip Town Code § 68-81 § 68-83). However, the record indisputably establishes that from 1963 to 1972, the contract vendor owned an adjoining parcel of land and thus the petitioner has failed to comply with both conditions necessary to obtain single and separate ownership treatment under the zoning ordinance. Accordingly, the Supreme Court properly held that the petitioner was not entitled to the variances as a matter of right and therefore the respondent members of the Zoning Board of Appeals of the Town of Islip had discretion to deny the requested variances.

It is well established that in order to obtain the area variances as a matter of discretion, the petitioner is required to establish significant economic hardship or practical difficulty ( see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756; Matter of Cowan v. Kern, 41 N.Y.2d 591, 394 N.Y.S.2d 579, 363 N.E.2d 305, rearg. denied 42 N.Y.2d 910, 397 N.Y.S.2d 1029, 366 N.E.2d 1365; Matter of Eynon v. Mangravite, 121 A.D.2d 719, 504 N.Y.S.2d 59; Human...