Appellate Division Affirms Supreme Court Determination Upholding Southampton Town ZBA Decision
August 19, 2019
By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The parcels are 12,495 sf and 54,042 sf respectively, located in the CR-200 zoning district, are nonconforming as to size and the applicant proposed to merge the parcels to allow for the construction of a single family residence. Both vacant parcels have access to Old Sag Harbor Road over a 50 foot wide easement granted to the property in 1949. However, the easement did not provide the requisite “road frontage” under the Code to build the residence. The application was opposed by the neighboring property owners to the north of the parcels who alleged that the properties (i) had merged and were not single and separate, (ii) even as merged were still not entitled to relief under Town Code §330-115D; and (iii) the application did not pass the variance standards for granting relief. The Zoning Board of Appeals granted the variance request finding that:
“the benefit to the applicant outweighs any perceived detriment to the neighborhood or the community. The detriment to the neighborhood, as articulated by Ms. Nowak and Mr. Lombardo, is in the construction of a dwelling on the premises since it will obstruct their views of the vacant, wooded, premises. However, applicant is not before this Board for relief for a building envelope for the dwelling. Rather, applicant requires relief as the premises does not have any road frontage, and there was evidence presented that in fact, there are several properties in the neighborhood that have received relief from this Board for reduced road frontage, and a review of the tax map confirms several flag lots in the neighborhood. As such, it is likely that the granting of relief will have no discernible impact on the neighborhood. Likewise, this Board notes that it was presented to this Board that the two lots will merge, resulting in a larger (though still nonconforming) lot in this CR-200 zoning district—one that is larger in size than that of Ms. Nowak’s. Therefore, Board finds that there is no detriment to the community here in granting 0 feet road frontage to the premises and that there is a great benefit to the applicant since securing the variance is necessary in order to build on the premises.”
The neighboring property owners brought an Article 78 Proceeding challenging the Zoning Board of Appeals approval entitled, Nowak v. Town of Southampton Zoning Board of Appeals et al., Supreme Court Suffolk County, Index No. 376/2016. By decision dated November 2, 2016, the Honorable Joseph C. Pastoressa, J.S.C. denied the petition and dismissed the proceeding. Petitioner’s primary argument was that respondents were not entitled to a variance because the two lots had merged for zoning purposes and were not entitled to be treated as nonconforming lots under the Code. Specifically, Town Code §330-115D provides that a “nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot…” Regardless, the Court found Petitioner’s argument unpersuasive stating, “even if the two lots did merge, the Town Code provides that, if a nonconforming lot “shall thereafter be held in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two parcels shall remain nonconforming in the same respect..” Thus, the Court determined that the two parcels, as merged comprised of 66,537 sf, well below the required 200,000 sf in the CR200 zoning district, were still nonconforming and entitled to relief under Town Code §330-115.
Petitioners appealed the determination to the Appellate Division, Second Department in Matter of Ann L. Nowak v. Town of Southampton et al., decided July 31, 2019. The Appellate Division affirmed the Supreme Court’s determination and found that the ZBA’s determination to grant the area variance allowing zero feet of road frontage for the subject properties had a rational basis.