| Matter of Long Is. Affordable Homes, Inc. v Board of Appeals of Townof Hempstead |
| 2008 NY Slip Op 10627 [57 AD3d 996] |
| December 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of Long Island Affordable Homes, Inc.,Respondent, v Board of Appeals of Town of Hempstead,Appellant. |
—[*1] Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineola, N.Y. (William F.Bonesso of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review two determinations of the Board ofAppeals of Town of Hempstead dated June 18, 2003 and February 25, 2004, which denied thepetitioner's applications for an area variance and to exempt its property from the 55-footminimum street frontage requirement set forth in article VII, § 76 of the Building ZoneOrdinance of the Town of Hempstead, respectively, the Board of Appeals of Town of Hempsteadappeals, as limited by its brief, from so much of a judgment of the Supreme Court, NassauCounty (McCormack, J.), entered March 19, 2007, as granted that branch of the petition whichwas to annul the determination dated February 25, 2004, and directed the Board of Appeals ofTown of Hempstead to issue the petitioner a building permit authorizing the proposedconstruction of a dwelling on the property.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts,without costs or disbursements, that branch of the petition which was to annul the determinationdated June 18, 2003 is granted, that branch of the petition which was to annul the determinationdated February 25, 2004 is denied as academic, and the matter is remitted to the Board ofAppeals of Town of Hempstead [*2]for the granting of an areavariance, subject to any conditions or requirements which the Board of Appeals of Town ofHempstead may deem appropriate.
The petitioner is the owner of a 9,200-square-foot parcel of real property located in the Townof Hempstead (hereinafter the property), on which it intends to construct a one-family dwelling.The property, which is located in the Residence "B" District of the Town, has 45.23 feet of streetfrontage on Bennett Avenue. In accordance with article VII, § 76 of the Building ZoneOrdinance of the Town of Hempstead (hereinafter the Ordinance), the lot must have a minimumof 55 feet of street frontage in order to construct a dwelling as of right on a lot located in theResidence "B" District. The Ordinance has a single and separate ownership exemption for parcelsof at least 4,000 square feet which were under different ownership from that of any adjoiningland on October 25, 1957 and did not come into common ownership with any adjoining landsince that date.
The petitioner submitted an application to the Board of Appeals of Town of Hempstead(hereinafter the Board) seeking an area variance with respect to the property's street frontage.During the public hearing before the Board, the petitioner also argued, in the alternative, that itdid not need an area variance because the property is exempt from the 55-foot minimum streetfrontage requirement, based upon the Ordinance's single and separate ownership exemption. Insupport of that argument, the petitioner presented evidence that the property had never been heldin common ownership with another parcel that also fronted onto Bennett Avenue, although theproperty and the two adjoining parcels were commonly owned for a period of time before andafter 1957.
In a determination dated June 18, 2003, the Board denied the petitioner's application for anarea variance. In a subsequent determination dated February 25, 2004, the board denied thepetitioner's application for an exemption from the 55-foot minimum street frontage requirement.The petitioner commenced the instant proceeding to review those determinations. The SupremeCourt granted that branch of the petition which was to annul the determination that the propertywas not exempt from the minium frontage requirements, and directed the Board to issue thepetitioner a building permit authorizing the construction of the proposed dwelling, finding thatthe petitioner established its entitlement to the exemption from the 55-foot minimum streetfrontage requirement. The Board appealed from that portion of the judgment. The petitioner didnot cross-appeal from so much of the judgment as denied that branch of the petition which was toannul the determination dated June 18, 2003 and confirmed the determination denying itsrequested variance.
At the outset, we note that the petitioner's failure to cross-appeal from so much of thejudgment as denied that branch of the petition which was to annul the determination dated June18, 2003, denying its application for an area variance, does not preclude our review of thepropriety of that determination (see CPLR 5501 [a] [1]). Since the petitioner was theprevailing party in the Supreme Court and was not aggrieved by the judgment appealed from(having been granted an exemption from the zoning ordinance), it is free to argue both that theSupreme Court's determination with respect to the Board's denial of the exemption was corrector, as an alternative ground for the grant of relief, that the Supreme Court's determination on theissue of the variance was incorrect (see CPLR 5501 [a] [1]; Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d 539 [1983]).
The petitioner established that the parcel located directly to the east of the property, whichaccesses a different street than the property, had less than 55 feet of street frontage and wasimproved with a [*3]dwelling. It further established that the valueof the property without the variance was only $5,000, but if the variance were granted theproperty would have a value of approximately $60,000. The petitioner's expert also noted thatfive of the seven homes on Bennett Avenue were also nonconforming with respect to streetfrontage. Moreover, the record reflects that the property would be used for a single-familydwelling, with an expected value comparable to those of the surrounding homes.
Opposition to the petitioner's application for an area variance came from some of theneighboring property owners who, in general terms, described the adverse consequencesattendant to the development of any property, including traffic, parking, lighting, visual impact,and similar considerations. In this regard, the record shows that the gravamen of such complaintsappears to stem from the opponents' belief that a new neighbor would interfere with their use ofoff-street parking, and otherwise interfere with traffic conditions. Notwithstanding theseconcerns, the record reveals that the street in question is a dead-end street and that the onlyincrease in traffic would be that of new residents at the dwelling to be constructed on theproperty. The record also shows that because the property is substantially oversized, ample roomexists for on-site parking to service any dwelling constructed on the property. The neighborssimply did not want to lose what they considered vacant community land.
These facts bear no relationship to the findings made by the Board. In particular, there isnothing in the record to suggest that the construction of a dwelling will impede or add to theburden of delivering municipal or private services to the residents of Bennett Avenue. The recordalso shows that the development of the property cannot be effected absent the requested variance.
A determination of whether or not to grant a variance entails consideration of the factors setforth in Town Law § 267. An examination of each factor, based on the record herein,shows that the Board failed properly to apply the statutorily-mandated factors. The record showsthat the granting of the proposed variance and the development of the property will not changethe character (i.e., the residential nature) of the surrounding community, nor will the granting ofthe variance per se adversely affect the physical or environmental conditions of theneighborhood. The Board's conclusion that the requested variance is substantial is not borne outby the record. While the petitioner seeks an 18% deviation from the existing street frontagerequirements, only two lots on the street are code-compliant, and the variation from the othernoncompliant properties is negligible. Moreover, as previously indicated, the record is devoid ofany suggestion that the property can be developed without the proposed variance.
Based on the circumstances of this case, the determination of the Board lacks a rational basisand is not supported by evidence in the record (see Matter of Pecoraro v Board of Appeals ofTown of Hempstead, 2 NY3d 608 [2004]). Assuming, arguendo, that the concerns as toparking, and the size and siting of the home to be built, were genuine, the Board failed toconsider whether such concerns could be ameliorated by granting the variance subject toreasonable conditions it might impose. Accordingly, the judgment must be reversed insofar asappealed from, that branch of the petition which was to annul the determination dated June 18,2003 must be granted, and the matter must be remitted to the Board to grant the variance, subjectto such reasonable conditions and requirements as it may deem appropriate (see Matter ofApostolic Holiness Church v Zoning Bd. of Appeals of Town of Babylon, 220 AD2d 740[1995]; Matter of Jackson v Kirkpatrick, 125 AD2d 471 [1986]).
In light of our determination with respect to the variance, any consideration of the applicationfor [*4]the exemption, as provided by the Ordinance, has beenrendered academic (see Matter of Jung v Planning Bd. of Town of Middletown, 258AD2d 865 [1999]). Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.