Petitioner owned vacant property in the Town of Brookhaven (“Town”) that contained two tax lots that shared a rear boundary and abutted two parallel streets. Petitioner applied for area variances to build two houses on the property, one abutting each street, arguing it was entitled to the variances because the property consisted of two single and separate tax lots.  After a hearing, the Town’s Board of Zoning Appeals (“BZA”) denied the application, determining that the property consisted of two merged tax lots, and that Petitioner would have reasonable use of the property by developing one house instead.  Petitioner filed an Article 78 proceeding seeking to annul the BZA’s determination, but the Supreme Court, Suffolk County denied the petition and dismissed the proceeding. Petitioner appealed.

On appeal, the Second Department held that despite Petitioner’s contention that the property consisted of two separate lots, the record showed that the lots had been held in common ownership since 1948, and Petitioner offered no evidence that the lots were separate.  The record also had evidence that the proposal did not conform to the surrounding development pattern, and was a substantial deviation from the zoning requirements.  Finally, the BZA denied an identical application for a property in the immediate area in 2007.  As such, the Court concluded that the BZA properly weighed the relevant factors in denying Petitioner the requested relief, and that the BZA's determination was not illegal, arbitrary and capricious, or an abuse of discretion.  Thus, the decision of the lower court was affirmed.

The case was Harn Food, LLC v Dechance, 159 A.D.3d 819 (2d Dep’t 2018).