Agenda - Planning Commission - 02/06/1996

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Z.B. January 15, 1996 -- Page 5 Variance -- Did New Owner Create His Own Problems? Romanov. Jenks, 631 N.Y.S.2d 875 (New York) 1995 Cholost owned property in the village of Lynbrook, N.Y. In August 1988, she got a variance to subdivide her property into two lots, one for a pre- existing two-family home and one for a new single-family home. The Zoning Board of Appeals granted the variance in violation of a law that required a supermajority vote and even though the county Planning Commission recom- mended disapproval. Cholost did nothing else regarding the variance. In 1990, the village amended its code to increase the minimum frontage for single-family homes from 50 to 55 feet. The lot on which Cholost wanted to put the single-family house had 40 feet of frontage, x In August 1990, Romano contracted to buy the entire property from Cholost. In September 1991, the village Building Department notified Cholost that the variance to subdivide her property was voided because the time within which to get a building permit based on that variance expired. Cholost asked the village attorney for an explanation. The attorney told Cholost the vari- ance was still valid. However, the attorney warned of a proposed local law that would shorten a variance's life to one year if within that time no building permits were issued or if no conJtruction started. The proposed law applied to all variances, whenever granted. The new law was enacted in December 1991. In February 1992, Romano bought Cholost's property. According to Romano, he was not notified until four months after he closed on the property that the original variance was void because it was not approved by a supermajority of the board. Romano reapplied for a new variance on the same terms as the original variance. During hearings before the board, a neighbor complained the pro- posed driveway would pass within feet of his bedroom window. Other resi- dents said they opposed construction of another house on "a postage stamp lot." Romano argued the single-family home was for his father, and that he relied on the village attorney's statement that the variance was valid when he spent $70,000 renovating the existing two-family home. The board denied Romano's application, and Romano appealed to court. The court dismissed Romano's case. Romano appealed again. DECISION: Affirmed. The lower court properly dismissed Romano's case. The board's decision to deny the variance was rational and supported by substantial evidence. Romano failed to show strict compliance with zoning would cause him practical difficulties. His problems were self-created. The village attorney clearly warned Cholost of the change that would void her variance. The pro- posed frontage of 40 feet was a significant deviation from the village's 55-foot minimum. Romano's acquisition of the property and the money he spent on improvement of the two-family house both occurred after the village law was changed to limit the life of variances to one year.