Opinion
July 20, 1970
In this proceeding pursuant to article 78 of the CPLR, petitioner Seine Development Corporation appeals, as limited by its brief, from a judgment of the Supreme Court, Suffolk County, dated November 19, 1968, insofar as it affects said petitioner's land; the judgment confirmed respondents' determination denying petitioners' applications for variances as to minimum area, width and side yard requirements. Judgment modified, on the law, by adding the following to the decretal paragraph of the judgment (after the words that the "determination in each instance is confirmed"): "except that the petition of Seine Development Corporation is granted to the extent that respondents' determination is annulled insofar as it denied said petitioner a variance as to minimum area and width, and respondents are directed to grant a variance as requested with respect to said petitioner's land as to minimum area and width. As so modified, judgment affirmed insofar as appealed from, without costs." We find no substantial evidence in the record to support respondents' finding that the subject parcel has not been held in single and separate ownership since prior to the 1963 zoning amendment which rendered the property substandard as to minimum area and width; and thus the denial of the variance as to these requirements was arbitrary and unreasonable. The mere fact that the subject parcel is contiguous with another, commonly owned, parcel does not effect a merger of the two parcels. Nor, for that matter, does the mere fact that the parcels are contiguous only in the rear and front on separate streets (as here) preclude a merger. Each case must be decided upon its own peculiar facts. In the instant case the abutting parcels are approximately 50 feet by 100 feet and 152 feet by 551 feet respectively. The properties were separately acquired and appear to have never been used in conjunction with one another. Moreover, from their relative positions it appears that one does not materially enhance the value or utility of the other. It also appears that the smaller parcel (the one for which the variance was sought) substantially conforms to the depth characteristics of the neighborhood and that the area in general is comprised mostly of back-to-back lots, 100 feet deep, and fronting on separate streets. In these circumstances it is our opinion that the subject parcel, and the larger abutting parcel, each retained its single and separate identity. As to the request for a yard variance, we agree with respondents that no necessity was shown for the grant of such a variance. At the hearing on the application, the appealing petitioner's counsel conceded that the proposed dwelling could be located on the subject parcel so as to satisfy the existing side yard requirements. In such a circumstance the denial of a yard variance was neither arbitrary nor unreasonable. Christ, P.J., Munder, Martuscello, Latham and Kleinfeld, JJ., concur.