Sakrel, Ltd. v. Roth

• Decision Date: 07 October 1991
• Citation: 574 N.Y.S.2d 972,176 A.D.2d 732
• Parties: In the Matter of SAKREL, LTD., Appellant, v. David I. ROTH, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 972

574 N.Y.S.2d 972

176 A.D.2d 732

In the Matter of SAKREL, LTD., Appellant, v. David I. ROTH, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 7, 1991.

Regina Seltzer, Bellport, for appellant.

Thomas F. Whelan, Town Atty., Lindenhurst (Barbara M. Weltsek and Joseph F. Buzzell, on the brief), for respondents.

Before SULLIVAN, J.P., and HARWOOD, MILLER and O'BRIEN, 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 Babylon dated March 24, 1989, which denied the petitioner's application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Vaughn, J.), entered September 27, 1989, which dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner Sakrel, Ltd., is the owner of an undeveloped parcel of real property situated in a B Residence District in the Town of Babylon. Pursuant to Town of Babylon Code § 213-79(A), a parcel of real property situated in a B Residence District must be at least 10,000 square feet in lot area, and must have a width of at least 80 feet at the front building line to be buildable as of right. The petitioner's parcel has an area of approximately 4,000 square feet and a frontage width of 40 feet.

In April 1988 while still a contract vendee, the petitioner submitted an application for a building permit for the construction of a one-family house on the subject parcel. Contemporaneous therewith, the petitioner submitted an application to the respondent Zoning Board of Appeals of the Town of Babylon (hereinafter the Board) for necessary variances. Among the variances which the Board determined would be required to permit the petitioner's proposed construction were variances to diminish lot area from 10,000 square feet to 3,948 square feet, to diminish the frontage width requirement from 80 feet to 40 feet, to diminish the south side yard setback requirement from 18 feet to 5.43 feet, to diminish rear yard requirement from 40 feet to 22 feet, and to exceed the building floor area ratio by 4.5%.

In December 1988 a hearing was held on the petitioner's application, where it was asserted that the subject property had been held in single and separate ownership from a time predating the enactment of the zoning ordinance. Based upon this fact, the petitioner claimed entitlement to the variances as of right. Additionally, the petitioner claimed that denial of its application would cause it to suffer practical difficulties because it would be unable to develop its property, which it had since purchased for an undisclosed price.

The Board was not persuaded. Citing the fact that the petitioner's property had been held in common ownership with a contiguous parcel for a period of 60 years, the Board found that the petitioner had not established that it was entitled to single and separate dispensations. Furthermore, the Board found that even if the petitioner's property was singly and separately owned from a time predating the effective date of the zoning ordinance, it was still undevelopable, as Town of Babylon Code § 213-79(A) permitted the development of such undersized plots, but only if they are at least 6,000 square feet in area and with a minimum frontage width of 60 feet. Additionally, without expressly finding that the petitioner had established the existence of practical difficulties, the Board denied the application, finding that substantial variances were necessary which, if granted to permit the development of undersized plots, would impact upon the surrounding area, inter alia, by increasing density and by taxing municipal services. The petitioner challenged that determination in the instant proceeding, and the Supreme Court upheld the Board's determination. This appeal ensued.

At the outset we agree with the Board's determination that the petitioner has failed to establish its single and separate ownership of the subject premises. The title searches contained in the record indicate that the subject parcel (designated as Block 3, Lot 6), had been held in common ownership with a contiguous parcel to the rear (designated as Block 3, Lot 11). While it has been recognized that such "back to back" split parcels may be deemed not to have merged where the applicant has established that during the period of common ownership the parcels were never used in conjunction with one another and neither parcel materially enhanced the value or utility of the other (see, Matter of Barretto v. Zoning Bd. of Appeals of Inc. Vil. of Bayville, 123 A.D.2d 692, 507 N.Y.S.2d 57), the record is devoid of any such evidence in this case. Indeed, there is no indication whatsoever as to the uses of the two parcels during the years they were commonly owned. Thus, petitioner has failed to meet its burden to establish that the two parcels did not merge and that the subject parcel thus retained its single and separate status (see, Matter of Lakeland Park Estates v. Scheyer, 142 A.D.2d 582, 530 N.Y.S.2d 240).

Furthermore, even assuming that the petitioner had established that the subject parcel had retained its single and separate status, under the applicable provisions of the Code of the Town of Babylon, the property would still be too small for development. As acknowledged by the petitioner's president, Sanford Kressler, the subject property measures less than 4,000 square feet due to the angles of the property lines. Town of Babylon Code § 213-79(A) provides that an undersized property held in single and separate ownership prior to the enactment of the zoning ordinance is buildable, but only if it has a minimum frontage width of 60 feet and an area of 6,000 square feet. Moreover, even if the property was not deficient in frontage width and area, other variances would still be needed. The Town of Babylon Code does not provide blanket single and separate dispensations excusing all area deficiencies (see, Matter of Koster Keunen v. Scheyer, 156 A.D.2d 563, 549 N.Y.S.2d 72; Matter of Lakeland Park Estates v. Scheyer, supra; Matter of Kast v. Casey, 129 A.D.2d 641, 514 N.Y.S.2d 119). Accordingly, to the extent that the petitioner has failed to establish its entitlement to the requested variances under a theory of single and separate ownership, its application was properly denied (cf., Matter of Bauer v. Zoning Board of Appeals of Town of Yorktown, 121 A.D.2d 627, 503 N.Y.S.2d 652).

Turning to the merits of the petitioner's variance application, we find that practical difficulties were established. The petitioner has demonstrated that the only permitted use of its property is for a single family residence but that it cannot erect a single family residence without coming into conflict with the zoning ordinance. This clearly constitutes practical difficulties (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756; Cange v. Scheyer, 146 A.D.2d 594, 536 N.Y.S.2d 836; Matter of Bueno v. Bd. of Appeals on Zoning of City of New Rochelle, 139 A.D.2d 644, 527 N.Y.S.2d 797; Matter of Lanzilotta & Teramo Dev. Corp. v. Lazarus, 127 A.D.2d 767, 512 N.Y.S.2d 160; Matter of Lund v. Edwards, 118 A.D.2d 574, 498 N.Y.S.2d 870; Matter of Feldman v. Nassau Shores Estates, 12 Misc.2d 607, 172 N.Y.S.2d 769, aff'd 7 A.D.2d 757, 181 N.Y.S.2d 79; 2 Anderson, New York Zoning Law and Practice § 23.40[3d ed; 1989].

Since the petitioner adduced sufficient evidence of practical difficulties, it was incumbent upon the Board to establish that strict application of the zoning ordinance was necessary to promote and protect the public health, safety and welfare (see, Matter of National Merritt v. Weist, 41 N.Y.2d 438, 393 N.Y.S.2d 379, 361 N.E.2d 1028), and that the need to promote the public good outweighs the injury to the petitioner (see, Matter of Niceforo v. Zoning Bd. of Appeals of Town of Huntington, 147 A.D.2d 483, 537 N.Y.S.2d 579). In reaching this determination, a board must consider: (1) how substantial the variance is in relation to the requirements of the zoning ordinance, (2) whether the granting of the variance will result in a substantial change in the character of the neighborhood, (3) whether the difficulty of development within the parameters of the zoning ordinance can be obviated by some feasible method other than a variance, and (4) whether in view of the manner in which the difficulty arose, the interest of justice will be furthered by allowing the variance (Matter of Niceforo v. Zoning Bd. of Appeals of Town of Huntington, supra, at 485, 537 N.Y.S.2d 579; Matter of Townwide Props. v. Zoning Bd. of Appeals of Town of Huntington, 143 A.D.2d 757, 533 N.Y.S.2d 466; Matter of Friendly Ice Cream Corp. v. Barrett, 106 A.D.2d...