Hatfield v. Kempner

and votes to reverse the judgment and to confirm appellants’ determination denying petitioner’s application for an area variance, with the following memorandum, in which Rabin, J. concurs: The question here is whether the appellant board abused its discretion, as a matter of law, in denying the application. To the general factual statement in the prevailing memorandum I would add that the board found, on what I think is substantial evidence, that petitioner acquired Lot 62 in 1937 for $1,500; that the lot was used in common with Lot 42 from 1937 until January, 1968^[1] ; that in November of 1962 she acquired title to Lot 42 by devise from her husband; that Lot 62 is 2,500 square feet short of the one-third acre minimum area requirement; that all the lots in the immediate area exceed the square footage of the subject lot; that most of the parcels in the general area, either as improved or as maintained by their owners, substantially exceed the one-third acre minimum; and that granting the variance would adversely affect the neighborhood in property value and character and would increase population, which would adversely affect the development’s inadequate eight-inch water drain sewer and the town’s already overburdened schools, garbage collection and disposal system. That being so, I find no abuse of discretion in the board’s determination (see Matter of Fulling v. Palumbo, 21 N Y 2d 30 , 34). There is no doubt that Lots 62 and 42 were used in common since 1937 or that, for at least four months, there was a merger of title in petitioner. Upon the happening of that merger there could be no division of the total parcel by which a substandard lot would be created, unless permitted by an exception in the ordinance (see Khare v. Incorporated Vil. of Massapequa Park, 62 Misc 2d 68 , 70, affd. 35 A D 2d 653 , affd. 27 N Y 2d 991 ). In the zoning ordinance of the Town of Harrison the only exception appears to be that contained in section 72-21F which in pertinent part reads: “Existing lots. In the case of a lot existing at the effective date of this ordinance and con