Agenda - Planning Commission - 10/06/2005

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Page 6 -- August 25, 2005 Z,B. in that they shared a common rear boundary and had frontage on two parallel streets. In 1938, Lot 42 was developed with a single-family dwelling, while Lot 64 remained vacant. The improvements on Lot 42 failed to comply with the town's zoning requirements. The prior owner had owned the lots since 1946. When the applicable zoning ordinance was enacted in 1952, the prior owner never sought to establish a preexisting nonconforming use. However, in 1997, in contemplation of a sale, she applied to the Board of Zoning Appeals of the Town of Islip for a variance to "legahze" the dwelling. The board denied the request, finding the lots had merged and the owner should have brought a request to subdivide the lots. Matherson hoped to subdivide the lots to build a conforming residence on Lot 64. The board found the application "in essence identical" to the 1997 application and denied it. Matherson sued, and the court ruled in his favor. The board appealed. DECISION: Affirmed. The board acted arbitrarily, capriciously, and without rational basis in deny- ing the application. First, the board denied the prior owner's 1997 application, which, in eskence, was an application for a "variance" as to Lot 42, on the gound' it was improperly brought and advertised. The court determined the board could not deny the new application on the same gounds as before because the application was properly brought as one to subdivide Lots 42 and 64 as well as for an area variance. Moreover, the board's 1997 determination that the application for a vari- ance concerned not.only Lot 42, but also a single property consisiting of a merger of Lots 42 and 64 lacked any rational basis and was not based on substantial evidence. Lots in "back-to-back" split formation were deemed to not have merged where it was shown that, during .the period of common owner- ship, the parcels were never used in conjunction with one another and neither parcel materially enhanced the value or utility of the other. In this case, Lot 64 had never been used with Lot 42, had never been improved or been considered part of Lot 42's backyard, and had been over- gown with trees and other brush and used by neighbors to dump their grass clippings. In addition, a fence once separated the two lots. Thus, there was no evidence the lots had merged. Finally, since the owner was mainly filing an application to "legalize" the e,,dsting dwelling on Lot 42, it was clear the board had no basis to deny the application. The board was required to engage in a balancing test to weigh the benefit to the applicant against the detriment to the health, safety, and welfare --- of the community. Here, the board failed to explain how leaving the existing dwelling in place, which had been on Lot 42 since 1938, could possibly produce any undesirable change in the neighborhood. 200 ,.e 2005 Quinlan ?uOiishing Group. Any reproduction is prohibited. For more information please call (6'~7) 542-0048.