Agenda - Planning Commission - 09/03/1996

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Page Z-- August 1996 Z.B Variance -- Appraiser says landowner probably has most inferior site in neighborhood Sul~kis v. Town of Sand Lake Zoning t~oard of A_ppeals, 642 N. Y.S. 2d 374 (New I~ork) 1996 Acl~ner Fuels Inc. owned 11.5 acres in the town of Sand Lake, N.Y. One- and-a-half acres were developed to accommodate a 30,000-gallon propane storage'tank surrounded by a fence. The property was next to an electrical substation and a highway garage. Four years after Ackner bought the property, the town passed zoning regu- lations that designated the property as residential/recreational. Ackner's use of the fenced-in area became a nonconforming use. Ackn~ er expanded its use of the property outside the fenced-in area to store construction materials and propane tanks, and park and maintain its vehicles. Several Years later, the Zoning Board of Appeals found that this use violated the zonir~g regulations. Ackner applied for a use variance and proposed adding a 4,000-square- foot garage. The board held public hearings at which two appraisers testified. One appraiser said while soil in the entire county was poor, Ackner's soil was particularly deficient. He said Ackner's was "probably the most inferior site in that neighborhood." Based on this and the property's 40-foot slope, he said it was not economically feasible to develop the site residentially. The second appraiser found Ackner's annual return on investment was not reasonable com- pared to the marketplace. As a residential lot, its market value was estimated at about $20,000. Neighboring landowners presented evidence to the contrary and said some- one offered to buy Ackner's property for $50,000. However, evidence showed that despite discussions about a possible sale, the parties never agreed on any- thing. The neighbors also said the added garage would increase traffic. The board granted Ackner's request. It found the property would not yield a reasonable return if zoned residential; the hardship was unique because of the property's location, poor soil, and the cost of moving the storage tank; the variance would not alter the neighborhood's residential and industrial charac- ter; because of the neighboring substation and highway garage, any increase in traffic would not alter the neighborhood's character either; because Ackner bought the property before the zoning regulations were enacted, Ackner did not create its own hardship; and the variance would not negatively affect the environment. The neighbors appealed to court. DECISION: Board's decision confirmed. The board properly granted Ackner a variance. Based on the evidence, the board could reasonably find the property would not yield a reasonable return if zoned residential. The board could also find the hardship unique in light of the property's cumulative negative factors: its location, poor soil, and the cost of moving the ~storage tank. Nothing showed the variance would hurt the public