Opinion
September 24, 1990
Appeal from the Supreme Court, Suffolk County (Fierro, J.).
Ordered that the judgment is reversed, on the law, with costs, and the proceeding is dismissed on the merits.
Through one deed, the petitioner obtained 2 adjoining plots, 1 improved by a single-family residence and 1 unimproved. Arguing economic hardship and the existence of nonconforming neighboring properties, the petitioner sought an area variance in order to construct a single-family residence on the unimproved lot. Concluding that the plots were not single and separate and that the petitioner had not demonstrated "practical difficulties", the appellant Zoning Board of Appeals of the Town of Brookhaven denied his application. The court, however, found that the plots retained their single and separate status and that the petitioner demonstrated "practical difficulties". Therefore, it concluded that the variance was warranted and granted the petition. We disagree.
It is settled that where a lot has been held in single and separate ownership since a date prior to the enactment of a zoning ordinance which renders it substandard, the owner is entitled to an area variance as of right (see, e.g., Matter of Morin v. Zoning Bd. of Appeals, 163 A.D.2d 389; Matter of M.E.F. Bldrs. v. Siegel, 162 A.D.2d 533; Cange v. Scheyer, 146 A.D.2d 594; Matter of Barreto v. Zoning Bd. of Appeals, 123 A.D.2d 692; Modular Homes Corp. v. Combs, 115 A.D.2d 527). In the instant case, however, the record does not reveal whether the plots were held in single and separate ownership prior to the upzoning. Moreover, Brookhaven Town Code § 85-2 (c) provides that " whenever a single lot, which has been exempted from the area width and yard requirements by reason of such lot being in single and separate ownership * * * is joined by common ownership to an abutting lot, the greater area width and yard requirements shall apply to the increased size lot" (emphasis supplied). Regardless of whether the plots once were once held in single and separate ownership, this provision clearly indicates that they have since merged (see, e.g., Matter of Wiggin v. Kern, 161 A.D.2d 716; Matter of Faranda v. Schoepflin, 21 A.D.2d 801).
Accordingly, to be entitled to an area variance, the petitioner was required to demonstrate that strict compliance with the zoning law would cause "practical difficulties" (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441; Barrett v. Rose, 152 A.D.2d 525). Because the petitioner only presented proof as to how much the value of the property would be reduced if a variance were withheld, and declined to present any evidence as to the purchase price of the property, he has failed to demonstrate significant economic injury (see, Matter of Cowan v. Kern, 41 N.Y.2d 591; Barrett v. Rose, supra; Matter of Campus v. Delany, 62 A.D.2d 990). Thus, the denial of the area variance was neither illegal, arbitrary, nor an abuse of discretion (see, Matter of Pacheco v De Salvo, 127 A.D.2d 957). Kunzeman, J.P., Eiber, Sullivan and Rosenblatt, JJ., concur.