Hatfield v. Kempner

35 A.D.2d 1010, 318 N.Y.S.2d 754, 1970 N.Y. App. Div. LEXIS 3003

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1970
• Status: Published

Opinion

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 daughterTin-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.