Verdeland Homes, Inc. v Board of Appeals of Town of Hempstead

[*1] Verdeland Homes, Inc. v Board of Appeals of Town of Hempstead 2006 NY Slip Op 52018(U) [13 Misc 3d 1227(A)] Decided on August 30, 2006 Supreme Court, Nassau County Winslow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 30, 2006
Supreme Court, Nassau County

Verdeland Homes, Inc., Petitioner,

against

The Board of Appeals of the Town of Hempstead, Respondent(s).



006084/06

F. Dana Winslow, J.

Application pursuant to CPLR Article 78 to annul the determination of respondent Board of Appeals of the Town of Hempstead (Zoning Board) in case #266, dated March 17, 2006, which after a hearing, denied petitioner's request for appropriate variances to construct a one-family dwelling and garage is denied and the petition is dismissed.

Petitioner is the contract vendee of a vacant parcel of land owned by Kevin P. Finn, located on the north side of New Street, 1818.18 feet west of Nostrand Avenue, Uniondale, New York, also known as section 50, block 16, lots 134 and 161 on the Land and Tax Map of Nassau County. The sale is contingent upon petitioner obtaining appropriate area variances which would permit construction of a new one-family dwelling and garage as proposed on lots 134 and 161 (Case # 265) having a street frontage of 42.51 feet, an average depth of 103.47 feet and an a total land area of 4,398.63 square feet. The application in Case # 266, by owner Kevin Finn, is for leave to maintain a dwelling on an existing plot [section 50, block 16, lot 266], abutting the vacant property. The improved parcel has a street frontage of 50 feet, an average depth of 103.35 feet and a total land area of 5,167.6 square feet. The properties share a common boundary line but have been separately identified and/or classified as "residential vacant" (lots 134 and 161) and residential improved (lot 266) for county tax assessment purposes since June 26, 1950. The properties described in Cases # 265 and #266 lie in a Residential "B" Zoning District which requires 6,000 square feet of lot area, including 55 feet of frontage.

According to the record, the dwelling on lot 266 was constructed in 1950, at which time the builder, J. C. & D Construction Corp., held record ownership of both the improved and unimproved abutting parcels. Both parcels were conveyed by the builder [*2]under one deed in 1950 and thereafter similarly conveyed on five subsequent occasions culminating in the conveyance to the present owner in 2004. Prior to the 1957 amendment to § 76A of the Building Zone Ordinance, the improved parcel [lot 266] was totally legal at the time the dwelling was constructed and a Certificate of Occupancy issued on April 27, 1950. Vacant building lots 134 and 161 also constituted a legal building lot at that time.

Broad discretion is vested in local Zoning Boards in considering applications for variances. Arceri v Town of Islip Zoning Board of Appeals, 16 AD3d 411, 412 [2nd Dept. 2005]. Judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion. Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]. A determination related thereto should be sustained if it has a rational basis and is supported by substantial evidence. Matter of Blattner v Zoning Bd. of Appeals of Town of Mount Pleasant, 17 AD3d 360 [2nd Dept. 2005]. When reviewing the determination of a Zoning Board, the court will consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the Board's decision. Halperin v City of New Rochelle, 24 AD3d 768, 772 [2nd Dept. 2005]. Judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them. Cowan v Kern, 41 NY2d 591, 599 [1977].

In determining whether to grant an application for an area variance, a Zoning Board must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community as required by Town Law § 267-b[3][b]. Pasceri v Gabriele, 29 AD3d 805, 806 [2nd Dept. 2006]. The Zoning Board must also consider whether:

1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will result if the area variance is granted;

2) benefit sought by applicant can be achieved by some method, feasible to the applicant, other than an area variance,

3) the required variance is substantial,

4) the proposed variance will have an adverse effect or impact on physical or environmental conditions in the neighborhood or district if it is granted, and

5) the alleged difficulty was self created, which consideration shall be relevant to the decision of the Zoning Board but shall not necessarily preclude granting of the area variance.

Although no single statutory consideration is determinative in assessing an area variance application, the effect of the requested variance on the neighborhood and community is a critical aspect of a Zoning Board's responsibility in balancing the relief [*3]requested by a property owner and the interests of the residents of a municipality. In particular, the conformity or dissimilarity of a property, as compared to the prevailing conditions in the neighborhood with respect to bulk and area, is a highly significant consideration. Rice, 2005 Supp. Practice Commentaries, Cons. Laws of NY Book 61, Town Law § 267-b, Pocket Part at p. 56.

The record at bar demonstrates that the respondent Zoning Board engaged in the requisite balancing of interests and considered the appropriate factors pursuant to Town Law § 267-b[3][b] in passing upon petitioner's variance application.

As set forth in the Findings of Fact dated May 3, 2006, petitioner's request for a permit to erect a dwelling on lots 134 and 161 measuring 42.51' x 103.52' was denied by the Building Department on grounds that to grant such relief would result in the creation of an unlawful subdivision pursuant to § 307 of the Building Zone Ordinance in that the proposed building plot would have a front width from the street line to the front set back line of 42.51', whereas 55' is required, and a lot area of 4399 square feet, whereas 6000 square feet is required.

Notwithstanding petitioner's assertions to the contrary, respondent Zoning Board properly found that, pursuant to § 307 of the Building Zone Ordinance, any plot created by the subdivision of a parcel into one or more undersized or substandard plots, vis a vis area and street frontage, and minimum width requirements of the Ordinance in effect at the time of the subdivision, is violative of the Ordinance. § 307 further provides, in pertinent part that,

"said violation shall be deemed to extend and apply to all newly created lots out of the original plot subdivided, whether or not one (1) or more of the newly created plots is technically in conformity with the then existing ordinance."

Pursuant to § 76A of the Ordinance

"[t]he minimum lot or plot width and area and frontage regulations herein set forth shall not apply to any lot or plot having an area and/or width and/or frontage of less than that prescribed herein, provided that such lot, or plot, has an area of at least four thousand (4,000) square feet and was under different ownership from that of any adjoining land on October 25, 1957, and provided further that such lot or plot and any adjoining land did not come into common ownership since that date."

Here, the subject lots have been in common ownership since at least 1950.

Moreover, the respondent Zoning Board found that the 42.5' x 103.52' proposed building plot would create an undesirable change in the character of the neighborhood as there is no building plot within a 200 foot radius of the subject property which "comes anywhere close to the substandard width of the proposed building plot." Within the 200 foot radius, there are six substandard building plots, all of which are at least 50' wide. Six building plots within the radius are 100' wide and five are 90' wide. There are two plots that are 73'+ wide; two that are 70', two that are 65' and six that are 60'. In short, the area [*4]is not a substandard area but rather one that is conforming or over conforming as to lot area. The respondent Zoning Board further found that both the width deficiency (42.51' rather than 55') and the lot area deficiency of 1601 square feet (4395 square feet rather than 6000 square feet) are substantial.

In the view of this Court, review of the respondent Zoning Board's determination demonstrates that the Board adhered to the prescribed statutory criteria (Town Law § 267-b[3][b]) and weighing analysis and the rationality of the decision is supported by sufficient evidence in the record.

The Court finds no merit in petitioner's contention that "[s]ince the subject abutting plots are different' in their utility it would have been reasonable for the Respondent Board to find an equity in the petitioner's request to develop the vacant plot, rather than to deny relief and sterilize the utility of the plot forever." Petitioner's contention, offered without any supporting authority, that it was "inappropriate" for the respondent Zoning Board to prohibit development of lots 134 and 161 because the lot is owned in common with the abutting property is not a basis to annul the decision by the respondent Zoning Board at issue herein.

The respondent Zoning Board's decision is neither arbitrary and capricious nor without rational basis in the record, given the facts at bar. Petitioner offers no support for its theory that both the Building Department and respondent Zoning Board have misinterpreted and misapplied the relevant sections of the Ordinance in refusing to grant petitioner a building permit. Nothing in the Ordinance provides for different treatment in the case of an owner who wishes to subdivide an improved plot covered by a Certificate of Occupancy.

Any economic hardship which either petitioner or the contract vendee will suffer as a result of the respondent Zoning Board' s decision was self-created as a result of a conscious decision. Vilardi v Roth, 192 AD2d 662, 663 [2nd Dept. 1993]. Clearly Mr. Finn, the owner of the parcel, as well as the petitioner, a professional builder, are well aware of the zoning constraints which burden the property. Hardship is self created for zoning purposes where an applicant for a variance acquires the subject property subject to the restrictions from which it seeks relief. Tharp v Zoning Bd. of Appeals of the City of Saratoga Springs, 138 AD2d 906, 907 [3rd Dept. 1988].

This constitutes the Order of the Court.

Dated:ENTER:

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J.S.C.