Agenda - Planning Commission - 08/04/1998

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Page 8 -- June 25, 1998 Z.B. Variance-- Board denies minor variance that wouldn't impact neighboring property I Citation: Pottick v. Duncan, Supreme Court of New York, Appellate Div., 2nd Dept., No. 97-07490 (1998) Fox Run Woods Builders Corp. owned property in Syosset, N.Y. It wanted to build a single-family house on the lot, known as Lot 307. Fox Run applied to the Zoning Board of Appeals of the Town of Oyster Bay for the frontage variance it needed to build the house. Its application was in character with the community and complied with all other zoning restric- tions, such as setback, building area, height requirements, and building codes. The town apparently believed Lot 307 had merged with an adjacent lot because Fox Run owned both lots, and Lot 307 was a substandard tot. Fox Run said it was entitled to a building permit as a matter of right because a "gap parcel" separated the two lots. At the board's public hearing, a majority of neighboring property owners opposed Fox Run's request. Fox Run submitted a study, made by an appraiser with 2t years of experience, that concluded the minor variance would be in character with the community and wouldn't adversely impact the neighbor- hood or property values. Fox Run also showed the board issued many other similar and substantial variances in the immediate area. The zoning board found that Fox Run wasn't entitled to build the house as of right because it didn't prove third-party ownership of the gap parcel. The board denied Fox Run a frontage variance, finding the benefits to Fox Run were outweighed by "the detriment to the health, safety and welfare of the neighborhood or community." It apparently relied heavily on the neighbors' opposition. Fox Run appealed to court. The court dismissed its appeal, and Fox Run appealed again. DECISION: Reversed. The board should have granted Fox Run the variance. Whether the tot merged with the adjacent lot was irrelevant. The evidence showed Fox Run's benefit in receiving a minor frontage variance outweighed the detriment such a variance would have on fhe community. The board merely reiterated the balancing test without stating the specific facts it used to deny Fox Run's application. The only evidence indicated the variance would be in character with the community and would have no impact on the character of the neighborhood or property values. Moreover, the board relied heavily on the general grievances of Fox Run's neighbors. This opposition wasn't based on facts, but on the weight of numbers -- how many neighboring property owners were in opposition. The mere presence of community opposition or the unsupported allegations voiced by neighboring property owners didn't justify denying the variance. I I I I I I I I I I I I I I I I I