Petitioners purchased a parcel of property that contained a house built in 1986 and at that time, received a certificate of occupancy as a duplex. However, the house had been used as a three-family dwelling for many years. Prior to the petitioners purchasing the home, the sellers removed a wall and converted the home back to a duplex. The petitioners desired to use the property as a three-family dwelling, so they sought a building permit which was denied because the lot was only 14,520 square feet and the applicable zoning ordinance requires a lot size of 18,500 square feet for a three-family dwelling. The petitioner appealed the decision and at the same time applied for an area variance. The zoning board of appeals denied both the appeal and the variance request, and the petitioners appealed.
The appellate court upheld the decision of the building inspector that the house was not entitled to nonconforming use status since although it had been used as a three family house in the past, such use was not legal and it never conformed to the zoning ordinance. An illegal use of property by predecessors in interest does not confer legal non-conforming use status.
Further, the court upheld the zoning board’s denial of the area variance finding that the board appropriately weighed the statutory factors when considering the benefits versus the detriments associated with the granting of the variance. Specifically, the court noted that board’s findings that the hardship was self-created, that the petitioners were able to use the property as income producing for a two-family dwelling and that the requested variance would require an exception of nearly 4,000 square feet or approximately 21% of the total area. Therefore, the Board’s decision was not arbitrary or irrational.
Smelyansky v Zoning Board of Appeals of the town of Bethlehem, 2011 WL 1407751 (N.Y.A.D. 3 Dept. 4/14/2011).
The decision can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2011/510897.pdf
