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Genser v. Board of Zoning and Appeals of Town of North Hempstead

September 15, 2009

IN THE MATTER OF ROBERT E. GENSER, ET AL., RESPONDENTS,
v.
BOARD OF ZONING AND APPEALS OF TOWN OF NORTH HEMPSTEAD, A/K/A BOARD OF ZONING APPEALS OF TOWN OF NORTH HEMPSTEAD, ET AL., APPELLANTS.



In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of North Hempstead dated June 6, 2007, which, after a public hearing, denied the application of the petitioners-plaintiffs for an area variance with respect to lot width, and action for a judgment declaring, inter alia, that the subject property was taken without just compensation, the appeal is from a judgment of the Supreme Court, Nassau County (Galasso, J.), entered November 27, 2007, which granted the petition pursuant to CPLR article 78, annulled the determination, and remitted the matter to the Board of Zoning Appeals of the Town of North Hempstead for the issuance of the requested area variance.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON and CHERYL E. CHAMBERS, JJ.

(Index No. 12224/07)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, the petition for relief pursuant to CPLR article 78 is denied, the determination is confirmed, the cause of action for relief pursuant to CPLR article 78 is dismissed on the merits, and the petitioners-plaintiffs' second cause of action is severed.

On December 15, 2005, the Nassau County Planning Commission approved the application of the petitioner-plaintiff Robert E. Genser to subdivide his property into two parcels. The larger parcel (hereinafter parcel number 1), which had accommodated a single-family house since approximately 1949, was about 109.02 feet wide and the smaller parcel (hereinafter parcel number 2), which was vacant, was about 73.04 feet wide.

Also on December 15, 2005, a proposed zoning amendment was submitted to the Nassau County Planning Commission, which recommended a "local determination" by the Town of North Hempstead. According to the Zoning Board of Appeals of the Town of North Hempstead (hereinafter the Zoning Board), this proposed zoning change had been made public on November 29, 2005.

On or about December 30, 2005, Genser executed a contract of sale whereby he agreed to sell parcel number 1, with the existing house, to Norman Roland and Marilyn Pearl Roland, and parcel number 1 was thereafter conveyed to them.

Meanwhile, after a public hearing on January 3, 2006, the Town of North Hempstead adopted the zoning amendment which provided, inter alia, that the minimum lot width in the Residence A district where the lot is located must be either 65 feet or the average width of the lots within a 200-foot radius, whichever is greater, but in no event greater than 100 feet wide. Although the average lot width in the subject area is 129.47 feet, the Town of North Hempstead Zoning Code capped the required lot width at 100 feet.

When Genser sought to build a single-family residence on parcel number 2, the Building Department disapproved the application on the ground that the lot width of 73.04 feet did not comply with Town of North Hempstead Zoning Code § 70-27.1(D), which required a minimum lot width of 100 feet.

Genser's architect, Alan Cooper, applied for an area variance from the new lot width requirements. According to Cooper, the proposed house met all other zoning requirements and it had been "designed to aesthetically blend with the surrounding neighborhood, with no negative impact on the neighborhood." However, at the public hearing on the application, a member of the Zoning Board stated that he looked at parcel number 2, and the other lots on the same side of the street as parcel number 2 which "appear visually to be greater, significantly greater than the street frontage.... creating one lot that will have more narrow street frontage than its directly adjacent lots and that is of significant concern." Further, it is undisputed that parcel number 2 is the narrowest on its block.

On June 6, 2007, the Zoning Board issued the determination under review denying the variance. The Zoning Board found that "there clearly will be an undesirable change in the character of the neighborhood and a detriment to nearby properties" because Genser's lot would be the narrowest within 200 feet, the second narrowest being 79.2 feet wide. The Zoning Board acknowledged that Genser suffered a difficulty, since parcel number 2, without the variance, was not a buildable lot. However, the Zoning Board found that the difficulty was self-created "at least to some degree" because the proposed zoning change was made public on November 29, 2005; therefore "[w]hether or not the applicant, or his counsel, knew of the impending zoning change when the contract was signed, they could have easily ascertained the relevant information."

Genser and, his architect, Cooper, commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination of the Zoning Board, and action to declare, in the event that the determination was not annulled, ...


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