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New York Real Estate Law ReporterColumns & DepartmentsLandlord Tenant LawLitigation

Development

By ssalkin

Merger Defeats Single and Separate Ownership Claim

Harn Food, LLC v. Dechance,  Comment The language of a local ordinance determines whether and to what extent a landowner who owns a lot that was conforming before enactment of a zoning ordinance enjoys a “single and separate” ownership exemption from the minimum area and frontage provisions of the ordinance. The NY Court of Appeals in 87 N.Y.2d 344 held that pre-existing lots enjoy no common law right to an exemption from minimum area ordinances. Generally, when two lots come into common ownership the lots merge and the owner loses any single and separate ownership exemption. In 142 A.D.2d 582, the court held that landowner was not entitled to the exemption because the nonconforming parcel had been jointly owned with an adjoining property for nine years. The code required that the parcel for which a single and separate exemption is being sought must not have come into common ownership with adjoining property. Similarly, in , 234 A.D.2d 462, the court found that the township properly construed its zoning ordinance to find that, due to common ownership, the subject parcel had merged with the adjoining parcel. The court upheld both the denial of an exemption and the denial of a variance, noting that the requested variance was substantial: landowner sought to build on a 22,500 square foot parcel in a district where minimum lot size was 40,000 square feet. Some courts have recognized an exception to merger if adjoining lots which form back-to-back splits are: 1) not used in conjunction with one another; and 2) do not enhance the utility or value of each other. The court in , 20 A.D.3d 425 held the ZBA acted without a factual basis when it determined that back-to-back lots merged because they were held in common ownership. In , one lot was nonconforming but developed with a single-family house, while the lot behind it was vacant but conformed to all requirements of the existing ordinance. There once had been a fence separating the lots, and the vacant lot was never used as a backyard, was overgrown, and was used as a dumping ground for neighbors. In cases like , where the two lots front on different streets, courts implicitly recognize that no zoning purposes area advanced by mandating that a conforming building lot remain vacant because it is in common ownership with a nonconforming lot fronting on a different street.

Failure to Refer to County Planning Board Invalidates Grant of Area Variance

Matter of Fichera v. New York State Department of Environmental Conservation, 

Denial of Natural Resources Special Permit Upheld

Matter of 278, LLC v. Zoning Board of Appeals, 

Village Ratifies Extension of Lease to Cell Phone Provider

Giunta v. AG Towers, Inc., 

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