Posted by: Patricia Salkin | September 25, 2020

NY Appellate Court Upholds Denial of Variance to Divide Parcel into Two Separate Lots Since the Lots Merged

This post was authored by Joseph Doscher, Touro Law Center

 Petitioner Teixeira alleged that the ZBA of the Town of Brookhaven acted inappropriately in denying a variance to divide a piece of property that consists of two separate tax lots that back up to each other and run between two parallel streets with each having its own road frontage on separate roads. The ZBA found the properties have merged into one lot and cannot be divided into two separate building lots. The Supreme Court denied the petition and dismissed the case. The appellate court found evidence in the record to show the lots have merged since the parcels were used in conjunction with each other sharing a fence, with a shed and a swing set on both properties. Therefore the ZBA had reason to determine the two lots had become one under the existing ownership. The Court also found the two lots would not have the area requirements under the Brookhaven Town code to be separated into separate building lots.

 In applying the statutory test for area variances, the Court further found only 19% of the lots in the neighborhood would need a similar variance, the request was substantial, and the detriment to the neighborhood outweighed the benefits to the petitioner. Therefore, the Court determined that the ZBA’s decision was not illegal, arbitrary and capricious, or an abuse of discretion and the decision should be upheld.             

 Teixeira v Dechance, 2020 WL 5648499 (NYAD 2 Dept. 9/23/2020)                        

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