The petitioner, owner of a 9,200 square-foot parcel in the Town’s Residence “B” District, desired to construct a one-family dwelling on the lot. The zoning ordinance requires a minimum street frontage of 55 feet, and since petitioner only had 45.23 feet of frontage, it applied for an area variance, and in the alternative, a determination that they were exempt from the requirement under the zoning ordinance. The zoning board denied the variance and determined that the petitioner was not exempt from the frontage requirement. The petitioner appealed. Although the petitioner initially appealed only the zoning board’s denial of their request for an exemption, the Court noted that their failure to cross-appeal the variance denial does not preclude the Court from reviewing this since the petitioner was the prevailing party in the Supreme Court and was not aggrieved by the judgment appealed from.
In reviewing the evidence, the Court held that the petitioner established that most other parcels on the street did not meet the road frontage requirements; that the value of the property without the variance is $5,000 but with the variance it would be approximately $60,000; and the house to be built on the lot would have an expected value comparable to those of surrounding home. The Court summarized the opposition to the variance as coming from neighboring property owners who “simply did not want to lose what they considered vacant community land.” Neighbors testified that the development of the parcel would result in an adverse consequences from increase in traffic, parking, lighting, visual impact and other similar considerations. However, the Court noted that the street is a dead-end street and the only increase in traffic would be the residents of the new dwelling, and as to parking, the lot could actually accommodate on-site parking to service the dwelling. The Court also found that the Board failed to apply the statutory factors in Town Law 267, concluding that the record shows that the granting of the variance would not change the character of the surrounding community nor would it adversely affect the physical or environmental conditions of the neighborhood. Further, the requested variance was not significant as only two lots on the street were code compliant. Further, the Court concluded that the record was devoid of any suggestion that the property can be developed without the proposed variance, and that the Board’s determination lacks a rational basis and is not supported by evidence in the record. Further, the Court said that the Board failed to consider whether any of the concerns raised could be ameliorated by imposing reasonable conditions on the granting of the variance. The Court directed the Board to grant the variance subject to reasonable conditions and requirements it may deem appropriate.
Long Island Affordable Homes, Inc. v. Board of Appeals of Town of Hempstead, 2008 WL 5413494 (N.Y.A.D. 2 Dept. 12/30/2008).
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2008/2008_10627.htm
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