The Appellate Division upheld an area variance for zero lot frontage that permitted the merger of two lots for the purpose of constructing a single family house, where the merged lots are also non-conforming in other respects. In Matter of Nowak v. Town of Southampton. the applicant (Insource) sought to merge two preexisting nonconforming lots that together failed to meet the lot area requirements and lacked any road frontage, as required under the local zoning code. The access to the road would be solely over an existing easement.
After the Zoning Board of Appeals issued the frontage variance, the neighbor brought an Article 78 proceeding challenging the Zoning Board of Appeals’ determination. The lower court upheld the determination and the petitioner appealed to the Second Department.
The Petitioner, as an adjoining property owner, claimed that by granting the variance the proposed single family house would have an adverse impact upon the petitioner, that the need for the variance was self created and that the lots were not eligible for treatment as nonconforming due to the merger of the lots.
The Court rejected the arguments of the petitioner noting:
“…a ‘nonconforming lot’ is defined as ‘[a]ny lot lawfully existing in single and separate ownership at the effective date of this chapter or any amendment thereto affecting such lot, which does not conform to the dimensional regulations of this chapter for the district in which it is situated. If such lot shall thereafter be held in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two parcels shall remain nonconforming in the same respect’ (Town Code § 330-5)…
The ZBA rationally concluded based on the evidence submitted in support of the application that the parcels were held in single and separate ownership from 1954 through the present (see Town Code §§ 330-5, 330-115[D]). In addition, the ZBA has the power to grant area variances to those parcels and is ‘specifically empowered to grant [a] variance’ ‘modifying the yard requirements of a nonconforming lot which qualified under the terms of § 330-115D as to ownership, but where compliance with the dimensional provisions of this chapter is not feasible’ (Town Code § 330-167[C]; see Town Code § 330-166[C]). Moreover, upon merger of the two parcels as proposed by Insource, the new merged parcel would remain nonconforming “in the same respect” in that it would continue to be nonconforming as to lot width and lot area (Town Code § 330-5).”
The Court analyzed the criteria to be applied in the “balancing test” to determine whether the Zoning Board of Appeals properly granted the area variance and held:
“the ZBA engaged in the required balancing test and considered the relevant statutory factors (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612-615). Contrary to the petitioner’s contentions, the evidence before the ZBA supported its findings that the requested relief would not produce an undesirable change in the character of the neighborhood, have an adverse impact on the physical or environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community, even if the proposed variance was arguably substantial and the alleged difficulty was self-created (see Matter of Stengel v Town of Poughkeepsie Zoning Bd. of Appeals, 167 AD3d at 756; Matter of Wantagh Woods Neighborhood Assn. v Board of Zoning Appeals of Town of Hempstead, 208 AD2d 935, 936-937). There was no evidence before the ZBA to show that granting the application would adversely affect environmental conditions (see Matter of L & M Grazoise, LLP v City of Glen Cove Zoning Bd. of Appeals, 127 AD3d 863, 865). Moreover, the ZBA rationally concluded that the benefit sought, specifically a variance that would enable the construction of a single-family dwelling on a lot without road frontage, could not be achieved by a feasible alternative method which would not require an area variance…”