| Matter of Morrissey v Apostol |
| 2010 NY Slip Op 06214 [75 AD3d 993] |
| July 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Matthew Morrissey, Appellant, v G.Michael Apostol, as Chair of the Zoning Board of Appeals of the City of Albany, et al.,Respondents. |
—[*1] John J. Reilly, Corporation Counsel, Albany (Jeffrey V. Jamison of counsel), forrespondents.
Stein, J. Appeal from a judgment of the Supreme Court (McNamara, J.), entered December31, 2009 in Albany County, which, among other things, dismissed petitioner's application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to,among other things, review a determination of respondent Zoning Board of Appeals of the Cityof Albany denying petitioner's application for a variance.
Petitioner is the owner of residential property located at 414 Hudson Avenue in the City ofAlbany. A local zoning ordinance restricts occupancy of the premises to a single family(see Albany City Code § 375-65).[FN1]Pursuant to the ordinance, "family" means "[o]ne, two or three [*2]persons occupying a dwelling unit . . . or. . . [f]our or more persons occupying a dwelling unit and living together as atraditional family or the functional equivalent of a traditional family" (Albany City Code §375-7 [B]). Notably, it is presumed that four or more unrelated persons living in a singledwelling unit are not the functional equivalent of a traditional family (see Albany CityCode § 375-7 [B]).
After city officials learned that petitioner was renting the premises to six unrelated collegestudents, petitioner was served with a cease and desist notice and order requiring that he "removeall unrelated persons in excess of . . . three" from the premises. Petitioner did sowithout making any attempt to establish that his tenants had been living together as thefunctional equivalent of a traditional family. However, he also sought a use variance permittingsix unrelated individuals to reside in the dwelling.[FN2]Respondent Zoning Board of Appeals of the City of Albany (hereinafter Board) ultimatelydenied petitioner's application.
Thereafter, petitioner commenced this combined CPLR article 78 proceeding anddeclaratory judgment action seeking a declaration that the term "family," as defined in theordinance, was unconstitutional or, in the alternative, an annulment of the Board's determinationdenying his variance application. Supreme Court dismissed that portion of the petition seeking toannul the Board's determination and rejected petitioner's claim that the definition of "family" isimpermissibly vague, thus violating state and federal due process principles. This appeal ensued,and we now affirm.
We begin by addressing petitioner's assertion that the definition of "family" found in theAlbany City Code is unconstitutional. In that regard, zoning ordinances are presumed to beconstitutional and the challenger bears the burden of proving unconstitutionality beyond areasonable doubt (see McMinn v Town of Oyster Bay, 66 NY2d 544, 548 [1985]).Moreover, a zoning ordinance is valid if (1) it is enacted to further a legitimate governmentalpurpose and (2) there is a reasonable relation between the goal of the ordinance and the meansemployed to achieve that goal (see Matter of Genesis of Mount Vernon v Zoning Bd. ofAppeals of City of Mount Vernon, 81 NY2d 741, 743-744 [1992]).
Here, petitioner acknowledges that the ordinance serves a legitimate end—thepreservation of the single-family character of the neighborhood. He argues, however, that thereis no reasonable relation between the ordinance, as written, and achievement of that end.Specifically, petitioner contends that the lack of objective criteria delineating what constitutes a"traditional family" or the "functional equivalent of a traditional family" renders the ordinancevoid for vagueness and grants unfettered discretionary enforcement authority to respondentNicholas DiLello, the Director of the City of Albany Division of Buildings and Codes.[FN3][*3]
We disagree. "A statute withstands an attack forvagueness if it contains sufficient standards to afford a reasonable degree of certainty so that aperson of ordinary intelligence is not forced to guess at its meaning and to safeguard againstarbitrary enforcement" (Salvatore v City of Schenectady, 139 AD2d 87, 89 [1988][citations omitted]). The ordinance at issue here satisfies these requirements, as the terms"family" and "functional equivalent of a traditional family" are not so vague as to confound aperson of ordinary intelligence and, thus, the ordinance is "not susceptible to arbitraryenforcement" (Matter of Flow v Mark IV Constr. Co., 288 AD2d 779, 780 [2001];see generally Group House of Port Washington v Board of Zoning & Appeals of Town of N.Hempstead, 45 NY2d 266 [1978]). In our view, the meaning of those terms is readilyascertainable given the body of case law—specific to the zoningrealm—interpreting the term "family" (see e.g Village of Belle Terre v Boraas,416 US 1 [1974]; McMinn v Town of Oyster Bay, 66 NY2d 544 [1985]; GroupHouse of Port Washington v Board of Zoning & Appeals of Town of N. Hempstead, 45NY2d 266 [1978]; City of White Plains v Ferraioli, 34 NY2d 300 [1974]). We are,therefore, satisfied that the ordinance is not impermissibly vague and that it does not impartlimitless discretion to the Board (see Matter of Durante v Town of New Paltz Zoning Bd. ofAppeals, 90 AD2d 866, 867 [1982]). Additionally, since petitioner was entitled to rebut thepresumption that his tenants were not living together as the functional equivalent of a traditionalfamily, but elected not to do so, he was not deprived of due process (see Matter ofUnification Theol. Seminary v City of Poughkeepsie, 201 AD2d 484, 484-485 [1994]).
We are similarly unpersuaded by petitioner's argument that the Board's denial of hisapplication for a use variance was arbitrary and capricious. As the applicant, petitioner wasrequired to demonstrate, among other things, that the existing zoning regulation resulted in anunnecessary hardship that was unique to his property, that such hardship was not self-created,and that it precluded his realization of a reasonable return on his investment[FN4](see General City Law § 81-b [3] [b]; Albany City Code § 375-26 [B] [2][a]).[*4]
Petitioner did not satisfy any of the foregoing criteria. Inaddition to presenting questionable financial data, petitioner made no effort to show that hecould neither increase the rent nor sell the property at a profit—either as a one-family ortwo-family home (see Matter of Drake v Zoning Bd. of Appeals of Vil. of Colonie, 183AD2d 1031, 1032 [1992]; cf. Matter of Dwyer v Polsinello, 160 AD2d 1056, 1058[1990]) and failed to demonstrate that the property was significantly distinct from otherresidences in the neighborhood (see Matter of Citizens for Ghent v Zoning Bd. of Appeals ofTown of Ghent, 175 AD2d 528, 530 [1991]). Furthermore, inasmuch as the occupancyrestriction on the premises had long been in existence when petitioner purchased the property, hefailed to demonstrate that any hardship was not self-created (see Matter of Diana v City ofAmsterdam Zoning Bd. of Appeals, 243 AD2d 939, 940 [1997]; Matter of First Natl.Bank of Downsville v City of Albany Bd. of Zoning Appeals, 216 AD2d 680, 682 [1995]).Accordingly, the Board's denial of petitioner's application had a rational basis and was supportedby substantial evidence (see Matter ofAndrome Leather Corp. v City of Gloversville, 1 AD3d 654, 656 [2003], lvdenied 1 NY3d 507 [2004]; Matter of Conte v Town of Norfolk Zoning Bd. ofAppeals, 261 AD2d 734, 738 [1999]).
Petitioner's remaining contentions have been reviewed and are determined to be without merit.
Rose, J.P., Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Under the ordinance, atwo-family dwelling or a house of worship would also qualify as a principal permitted use. Theresidence at issue here is a one-family dwelling, which is defined as "[a] detached building,designated for or occupied exclusively by one family and containing not more than one dwellingunit" (Albany City Code § 375-7 [B]).
Footnote 2: Although petitioner was grantedpermission to convert the premises to a two-family dwelling—permitting three unrelatedpersons to reside in each unit—he maintains that such a conversion would not becost-effective and has declined to do so.
Footnote 3: Petitioner's contention thatDiLello was improperly delegated discretion mischaracterizes the administrative process. Hadpetitioner appealed the cease and desist order issued by DiLello, the Board would haveultimately determined whether petitioner's use of his property conformed with the definition of"family" (see Albany City Code § 375-7 [B]; §§ 375-14, 375-15). Inthat regard, while petitioner's failure to exhaust his administrative remedies would ordinarilypreclude our review, an exception to the general rule exists where, as here, petitioner haschallenged the ordinance as facially unconstitutional (see Watergate II Apts. v Buffalo SewerAuth., 46 NY2d 52, 57 [1978]; Matter of Moran Towing Corp. v Urbach, 283 AD2d78, 81 [2001], revd on other grounds 99 NY2d 443 [2003]).
Footnote 4: Petitioner's application ispremised exclusively on the dwelling's "economic obsolescence" should he be limited to rentingto just three people. However, he is under no such limitation, as any number of people livingtogether as a traditional family or the functional equivalent of a traditional family may reside onthe premises (see Albany City Code § 375-7).