Opinion
December 30, 1970
In a proceeding pursuant to article 78 of the CPLR to review appellants' determination, rendered August 2, 1969, which denied petitioner's application for area variance of zoning, the appeal is from a judgment of the Supreme Court, Westchester County, dated February 27, 1970, which annulled the determination and directed appellants to grant the variance and authorize the issuance of a building permit. Judgment affirmed, without costs. Petitioner owns a substandard vacant lot, known and designated as Block 224, Lot 62, on the tax assessment map of the Town of Harrison, Westchester County. It is also designated by the same lot number on a subdivision map filed in the office of the Clerk of Westchester County in 1926. The parcel, having a frontage of 100 feet on Bates Road in Harrison, has an area of approximately 11,982 square feet; it is more than a quarter of an acre in area, but less than a third of an acre. In 1928, subsequent to the filing of the subdivision map, but prior to petitioner's purchase of the parcel (in 1937) the town adopted a zoning ordinance which provided, inter alia, that no building could be erected in the residence district in which this parcel was located to accommodate more than one family for each one third of an acre or more of land. In 1964, another zoning ordinance was enacted placing the parcel in the R-1/3 Residence area and requiring that each building lot in that area have a minimum lot area of one third of an acre and a minimum lot width of 100 feet. In 1930 William Hatfield, petitioner's husband, purchased Lot 42 in the same tax block. It was improved with a one-family home and was the Hatfield family abode; the rear of the improved lot (Lot 42) is contiguous to the rear of the subject parcel (Lot 62) and fronts on Crawford Road. Hatfield died in November, 1962 and, under his last will and testament, devised the improved lot to petitioner. She in turn conveyed it to her son and daughter-in-law in March of 1963. Thus, the period in which petitioner was the common owner of both parcels was for a limited time of approximately four months. In 1968, the town's Board of Zoning Appeals denied an application by petitioner for an area variance in order to construct a one-family home on the subject substandard lot. Special Term, however, annulled that determination on January 14, 1969 and remitted the matter to the board for action in accordance with Matter of Fulling v. Palumbo ( 21 N.Y.2d 30). Special Term held, inter alia, that the board had failed to demonstrate that some legitimate purposes would be served by restricting the use of petitioner's property or that the public health, safety and welfare would be served by upholding the one-third acre requirement and denying the variance. By contract dated March 15, 1969, petitioner agreed to sell the subject parcel for $16,000, contingent upon the Board of Zoning Appeals' granting an area variance to construct a one-family home thereon. At the hearing before the board on the ensuing variance application, petitioner submitted evidence which indicated that, of the 133 parcels laid out on the 1926 subdivision map, 97 had an area less than a third of an acre. The tax assessment rolls of the immediate area indicate that the area has been developed generally in accordance with the plot plan of the 1926 subdivision map. In denying petitioner's second application for a variance, the board found that the granting of the variance would adversely affect property values, overcrowd schools, and overburden the town's garbage collection system. However, there is no competent proof, in the record of the board's proceedings, to support such findings. Since petitioner seeks an area variance, only practical difficulties need be shown and proof of undue hardship is not necessary to sustain the granting of such a variance ( Matter of Village of Bronxville v. Francis, 1 A.D.2d 236). Furthermore since she has owned the subject parcel for over 30 years, and owned no contiguous parcel until her husband's death, 25 years after she purchased her parcel, it cannot be successfully argued that the substandard condition of her parcel resulted from her decision to subdivide her property so as to create one or more nonconforming plots (cf. Contino v. Incorporated Vil. of Hempstead, 27 N.Y.2d 701). In our opinion, under the circumstances present herein, petitioner, having an enforceable contract to sell the subject parcel for $16,000 as opposed to an unenforceable offer from a neighbor to purchase it for $12,000, will suffer significant economic injury if the variance is not granted. Since the board did not adduce competent proof that the public health, safety and welfare required a denial of the variance, or that the character of the immediate area would be in any way affected by the granting of the variance (although it had two opportunities to do so), we believe Special Term was correct in annulling the board's determination and directing the granting of the variance and the issuance of a building permit ( Matter of Fulling v. Palumbo, 21 N.Y.2d 30, supra). Christ, P.J., Latham and Benjamin, JJ., concur; Munder, J., dissents and votes to reverse the judgment and to confirm appellants' determination denying petitioner's application for an area variance, with the following memorandum, in which Rabin, J. concurs: The question here is whether the appellant board abused its discretion, as a matter of law, in denying the application. To the general factual statement in the prevailing memorandum I would add that the board found, on what I think is substantial evidence, that petitioner acquired Lot 62 in 1937 for $1,500; that the lot was used in common with Lot 42 from 1937 until January, 1968; that in November of 1962 she acquired title to Lot 42 by devise from her husband; that Lot 62 is 2,500 square feet short of the one-third acre minimum area requirement; that all the lots in the immediate area exceed the square footage of the subject lot; that most of the parcels in the general area, either as improved or as maintained by their owners, substantially exceed the one-third acre minimum; and that granting the variance would adversely affect the neighborhood in property value and character and would increase population, which would adversely affect the development's inadequate eight-inch water drain sewer and the town's already overburdened schools, garbage collection and disposal system. That being so, I find no abuse of discretion in the board's determination (see Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 34). There is no doubt that Lots 62 and 42 were used in common since 1937 or that, for at least four months, there was a merger of title in petitioner. Upon the happening of that merger there could be no division of the total parcel by which a substandard lot would be created, unless permitted by an exception in the ordinance (see Khare v. Incorporated Vil. of Massapequa Park, 62 Misc.2d 68, 70, affd. 35 A.D.2d 653, affd. 27 N.Y.2d 991). In the zoning ordinance of the Town of Harrison the only exception appears to be that contained in section 72-21F which in pertinent part reads: "Existing lots. In the case of a lot existing at the effective date of this ordinance and continuously thereafter in ownership separate from that of any abutting land" (emphasis added). It is obvious that petitioner does not qualify for that exception. What has happened here is that by her conveyance of Lot 42 to her son and daughter-in-law petitioner left herself with a substandard plot. To allow her to effectively claim that the zoning ordinance as applied to that self-created substandard lot is confiscatory appears to me to be directly contrary to the holding in Contino v. Incorporated Vil. of Hempstead ( 27 N.Y.2d 701). (See, also, Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258.)
She did convey Lot 42 to her son and daughter-in-law in March, 1963, a fact the board did not mention in the findings.