Opinion
June 19, 1967
In a proceeding under CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Oyster Bay, denying an application for a variance to permit and allow the erection of a dwelling on a plot of ground having less area and building-line width than the ordinance requires, the Zoning Board appeals from a judgment of the Supreme Court, Nassau County, entered September 13, 1966, which annulled the determination and directed it to grant the variance. Judgment reversed, on the law, without costs, determination confirmed and proceeding dismissed, without costs. No questions of fact were considered. The Town Zoning Ordinance provides that no building may be erected on a lot having an area of less than 10,000 square feet and a width of less than 80 feet at the building line, provided that a building may be built upon a smaller lot, but not more than 15% smaller in area or such width, held in single separate ownership on the effective date of a certain amendment of the Ordinance, January 27, 1953. The Town Zoning Ordinance further provides that, if a substandard plot (such as the one here involved) is acquired under any circumstances by an adjoining owner, the plot merges in fee with the adjoining plot and is no longer a separately buildable plot. In 1951 the subject plot was a legal and buildable plot under the Zoning Ordinance then in effect, having 8,146 square feet and a frontage width of 81.46 feet. By the above-mentioned 1953 amendment of the Ordinance, the property was no longer a buildable plot. It came into common ownership with adjoining property in 1960. By further amendment of the Ordinance in 1962, it became merged with said adjoining property and thereafter the merged properties were required to be treated as a single unit ( Matter of Faranda v. Schoepflin, 21 A.D.2d 801). The 1962 amendment of the Ordinance also provided that it is unlawful for any person to subdivide any parcel of land to create a separate plot which would violate the area, width or street frontage requirements of the ordinance. When Mrs. Carr, the common owner of both the plot containing the building and the subject property, conveyed the building plot to Mr. and Mrs. Vollet and at the same time conveyed the subject plot to Mrs. Vollet, she violated section C-3 of article V of the Zoning Ordinance, as amended and revised on May 29, 1962, in that she subdivided her parcel of land to create a substandard plot, containing an area of only 8,146 square feet. Moreover, on this record we see no practical difficulties. In our opinion, the Zoning Ordinance insofar as it is here invoked constitutes a proper exercise of the Town's zoning power; the Zoning Board properly construed the ordinance; and the board did not act arbitrarily or unreasonably in enforcing it and in denying petitioner's application. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Nolan, JJ., concur.