Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.” That is not entirely true. An exception to the single and separate doctrine is the doctrine of merger. Undersized lots that share a common boundary and are owned by the same person or entity can “merge.” Merged lots, therefore, become one larger lot, preventing either of the original lots from being developed separately without a subdivision and variances. See, Ramundo v Pleasant Valley Zoning Bd. of Appeals, 41 AD3d 855 [2d Dept 2007].
Municipalities throughout New York that have “up zoned” areas to prevent further development sometimes claim that contiguous lots have merged, because this lessens potential density on these now undersized parcels. Developers thinking of buying a parcel comprised of undersized lots and their counsel need to understand the doctrine of single and separate ownership and the doctrine of merger and its exceptions. Often, lots which the municipalities claim have merged may or may not actually merge, and knowledge of these legal issues can sometimes preserve the lots as individual, buildable parcels or prevent unwise investments of merged lots.
For example, the Town of Huntington Code §198-116.1 entitled “Merged Lots” provides that “lots shall merged by operation of law when a nonconforming parcel of land created before January 1, 1980 and an adjacent parcel are under common ownership; or when any parcel of land is use, in whole or in part for the benefit of an adjacent parcel having common ownership.” In comparison, the Smithtown Code §322-74 entitled “Non-Conforming Lots” preserved single and separately held lots and provides that “nonconforming lots may be used or a building or structure may be erected on such a lot for use…, upon the approval of the Board of Appeals, provided that, at all times subsequent to the effective date of any ordinance making such lots nonconforming, such lots have been separately owned in good faith and; (1) does not or did not join any lot or land in the same ownership; and (2) does not or did not adjoin any lot under the same practical or effective ownership, whether or not the incidents of title are or were the same.”
It is well established that in the absence of an express statutory provision setting forth the conditions under which adjoining parcels may be deemed to have merged, there can be no merger. See, Meadow v. Mansi, 282 AD2d 677 [2d Dept 2001]. The Court of Appeals has confirmed that a “merger” is not effective merely because adjoining parcels come into common ownership. See, Allen v. Adami, 39 NY2d 275 . The Court went on to hold that the municipality cannot rely on the “intent” of the single and separate property owners to determine an irrevocable merger of the lots has occurred.
In 1996, the Court of Appeals went on to clarify that “there is no common-law ‘single and separate ownership’ exemption from minimum area requirements, and that such an exemption only applied if the municipality enacted a local law or ordinance providing for such an exemption. See, Matter of Kahn v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344. The Court held that where the municipality has not created an exemption, the property owner must obtain the necessary variances for development on a substandard lot.
In summary, the doctrines of single and separate ownership and merger have a complex history, and there are many exceptions that can cause a variety of results. Despite all this, a knowledgeable counsel must be able to navigate the applicable codes to educate the prospective purchaser or municipality, and litigate if necessary, to preserve or limit the right to develop “non-merged” lots.