Shaughessy v. Roth

—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Babylon dated February 24, 1989, which, after a hearing, denied the petitioners’ application for a use variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Baisley, J.), entered September 9, 1991, which annulled the determination and directed the Zoning Board of Appeals to grant the petitioners’ application for a use variance.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioners sought a use variance in order to build a single-family dwelling on a lot which was approximately one half the square footage required under the Babylon zoning code. After a hearing on June 23, 1988, and a six-month delay in filing its decision, the Zoning Board of Appeals of the Town of Babylon (hereinafter the Board) denied the petitioners’ application, on the grounds, inter alia, that (1) the petitioners did not hold the property in single and separate ownership as required to obtain a variance for substandard, i.e. nonconforming, size property, (2) they failed to demonstrate economic hardship, and (3) the adverse impact on the community’s health, safety, and welfare outweighed the benefit to the petitioners in developing the property. The Supreme Court granted the petition to annul the Board’s findings on the ground that the determination was not supported by substantial evidence in the record as a whole. We affirm.

The record indicates that the petitioners sought the variance on the ground of "practical difficulties” in the use and development of their property (see, Conley v Town of Brook-haven Zoning Bd. of Appeals, 40 NY2d 309; see also, Matter of Fuhst v Foley, 45 NY2d 441). Thus, it was irrelevant to the consideration of the application whether the ownership of the property was single and separate, or whether the petitioners demonstrated economic hardship. The petitioners did, however, demonstrate that they could not build on the property without coming into conflict with the zoning code, since the property was substandard in size. Therefore, they sustained their burden of demonstrating "practical difficulties” (see, Matter of Fuhst v Foley, supra).

While a local zoning board has broad discretion in considering applications for variances, its determination will be sustained only if it has a rational basis and is supported by substantial evidence (see, Conley v Town of Brookhaven Zoning *335Bd. of Appeals, supra, at 314; see also, Matter of Slakoff v Hitchcock, 194 AD2d 613). The Board’s determination, which was purportedly based upon criteria enumerated in Human Dev. Servs. v Zoning Bd. of Appeals (110 AD2d 135, affd 67 NY2d 702), now codified in Town Law § 267-b, was not supported by substantial evidence. The only evidence presented by the Board at the June 23, 1988, hearing in opposition to the petitioners’ application was a memorandum from the Town of Babylon’s Department of Environmental Control recommending that the application be denied because approval might set a precedential standard for the development of other substandard parcels in the immediate vicinity of the petitioners’ parcel. The memorandum indicated, generally, that the development of these substandard parcels would unduly tax community resources. However, the memorandum failed to establish that granting the petitioners’ application would have a serious impact upon the community. By contrast, the petitioners presented unrebutted evidence that numerous other substandard lots in the immediate vicinity had already been developed. Thus, it was unlikely that the addition of another single-family dwelling would change the character of the neighborhood significantly. They further indicated that they had unsuccessfully attempted to purchase surrounding property in order to make their substandard lot conform to zoning requirements.

The Board also found that the petitioners’ difficulties were self-created, since the petitioners had purchased the parcel with the knowledge that it was substandard in size. Although not dispositive, the fact that a difficulty is self-created may be considered in determining whether practical difficulty exists (see, Matter of Slakoff v Hitchcock, supra). However, the record indicates that in 1973, approximately 14 years before the petitioners purchased the property, the Planning Board had tentatively approved subdivision of a larger parcel, which created one parcel which conformed to the zoning requirements and the substandard parcel which is the subject of this petition. Although no final subdivision map was ever filed, the Town subsequently issued a building permit to the owner of the larger, conforming parcel, and a single family dwelling was built. Thus, the Town’s actions effectively sanctioned the subdivision, and the Town, at least in part, contributed to the creation of the petitioners’ difficulties, by allowing the creation of the substandard lot (see, Matter of Lund v Edwards, 118 AD2d 574). In light of the manner in which the petitioners’ difficulties arose, and the lack of other evidence to support *336the Board’s determination, the Supreme Court properly granted the petition, annulled the determination and directed the Board to grant a use variance.

We have reviewed the Board’s remaining contention and find it to be without merit. Thompson, J. P., Balletta, Pizzuto and Joy, JJ., concur.