An unexpected merger in the Heights

Most people who are familiar with the Heights would almost immediately recognize the twin cottages on the corner of Clinton and Waverly Avenue. But what many Islanders probably don’t know is the section of the zoning code that automatically merged the lots on which they sit into one property.

Julie Ben-Susan, the houses’ owner, certainly didn’t know the code — or at least didn’t know the town would enforce it without telling her.
Wednesday night, Ms. Ben-Susan asked the Zoning Board to split her property back into two separate lots, as they had existed for many years. The two houses were built in 1879, according to the Building Department. Though they were at one point attached, they have existed as two separate houses on separate lots for the better part of the past century.
She said during the meeting that the two houses will be much easier to sell separately than together as a package. But she can’t sell them separately when both structures are on the same lot.
According to code, if the property deeds of a nonconforming lot and an adjacent lot are under the same name, those lots are automatically merged by the town in order to form one larger, conforming lot in a process called “merger by operation of law.” Ms. Ben-Susan acquired the properties when Mary Esther Graham Courtney, Ms. Ben-Susan’s mother, passed away in 1993 and left the northern house to her. When her uncle, John Michels passed away in 1997, he left her the southern house. According to the code, the property became a single lot after three years since both lots were under her name.
Ms. Ben-Susan didn’t find out that her lots were merged until October of 2010, when a buyer sought information on the houses and went to the building department. Ms. Ben-Susan still gets two separate tax bills for the houses, she said, which led her to believe that they were still separate. Had she merely put the second house in her husband’s name, she added, her problem could have been avoided.
As she said in a letter to the board, “As they came to me years apart, I completely lost sight of the law that would merge them … I understand this occurs as an operation of law but for some reason I thought that there was prior notification to avoid just this sort of situation.”
One of the requirements for splitting a lot that was merged through operation of law is that each new lot’s area must be at least 50 percent of what’s required by current zoning code. For Ben-Susan’s zone (AA reverting to A residential), that’s 0.5 acres for each lot.
Ms. Ben-Susan’s original lots were 0.06 and 0.12 acres and so they can’t satisfy that requirement. Thomas Sledjeski, Ms. Ben-Susan’s lawyer, commented “It’s virtually impossible to come up with any two lots in the Heights that would meet this criteria.”
Board chairwoman Joann Piccozzi noted that the automatic merger has put two houses on a single lot, which isn’t allowed by town code and makes the lot even less conforming than when it was split. The other board members present, Pat Shillingburg and William Johnston III, agreed with Ms. Piccozzi (board members Doug Matz and Peter Ruig were absent). “I don’t think we should be allowing the law to be totally, completely irrational,” said Ms. Shillingburg.
But if the board is ignoring the area requirement in this case, board attorney Laury Dowd asked, how can it ever implement those criteria in a future case? Ms. Piccozzi responded that every application is different, and in this situation, leaving the lots merged would be a worse situation than un-merging them.
The hearing was closed except for written correspondence submitted before January 5. The board is expected to vote on the application at its January 26 meeting.