Agenda - Planning Commission - 03/04/1997

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lot3 Page 2 -- February 10, 1997 z.g, Variance -- Property owner claims busy location makes residential development unfeasible Citation: Rothenberg v. Board of Zoning Appeals of the Town of Smithtown, 648 N.Y..S. 2d 679 (New York) 1996 Rothenberg owned a 2-acre undeveloped corner lot in Smithtown, N.Y. The land was zoned for business but was later rezoned as "warehouse service industry." Rothenberg didn't develop the lot because the state indicated it planned to condemn it. After more than a decade, the state backed out. Rothenberg decided to develop the property commercially, but the town passed a building moratorium. When the moratorium was lifted, the town rezoned the property residential. The corner where the lot was located was by now a major intersection. While only 30 percent of the neighborhood was zoned commercial, the neighborhood was largely commercial near Rothenberg's lot. Rothenberg applied for a variance. At the hearing, a real estate appraiser and an engineer testified the lot's small size and location in a commercial area made residential development unfeasible. The witnesses testified about the cost of subdividing and grading the lot and installing utilities. They concluded the net proceeds of the sale would fail far short of the initial investment. (The parcel was worth about $10,000 in t955.) The zoning board of appeals refused to grant Rothenberg a use variance. It concluded Rothenberg could divide the parcel into three residential lots, and that he failed to show he couldn't get a reasonable return on the property by developing it residentially. Rothenberg appealed. DECISION: Reversed and sent back to the board. Rothenberg was entitled to a use variance. Rothenberg could not make any use of the property, as zoned, that would afford a reasonable return on his investment. The board understated Rothenberg's cost basis in the property, and failed to account for the present value of his investment. The construction costs and potential sale prices it used lacked any basis in the record. In contrast, Rothenberg's witnesses testified to the specific costs of improving the lots and what the net proceeds of a residential sale would be. The variance would not change the essential character of the neighborhood, which was largely commercial near the lot. The hardship was unique, as Rothenberg's was the only lot on a major intersection that was undeveloped and zoned residential. Finally, the hardship was not self-created: The lot was originally zoned commercial, and was left vacant because the state was going to condemn it and then backed out, after which the town passed the moratorium. The case was sent back to the board with instructions to consider whether Rothenberg should also get an area variance. see also: Lahey v. Kelly, 518 N.E.2d 924. I I I I I I I I I I I I I ! I I I I