Berko v. Kern

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Smithtown, dated April 13, 1993, which granted Robert Strain’s application for area and frontage variances, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Dunn, J.), entered February 10, 1994, which dismissed the proceeding. Ordered that the judgment is affirmed, with costs. The Board of Zoning Appeals of the Town of Smithtown (hereinafter the Board) properly determined that the applicant, Robert Strain, was entitled to the requested area and frontage variances under the doctrine of single and separate ownership. Although the parcels in question were joined at the rear, thus forming a "back to back split”, the finding by the Board that the record did not establish the existence of a merger during the period of common ownership is supported by substantial evidence (see, Matter of McDermott v Rose, 148 AD2d 615, 615-616; Matter of Barretto v Zoning Bd. of Appeals, 123 AD2d 692; Matter of Bexson v Board of Zoning & Appeals, 28 AD2d 848, 849, affd 21 NY2d 961). The petitioners’ remaining contentions are without merit. Joy, J. P., Friedmann, Krausman and Florio, JJ., concur.