| Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of LongBeach |
| 2007 NY Slip Op 06888 [43 AD3d 1068] |
| September 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Thirty West Park Corp. et al.,Appellants, v Zoning Board of Appeals of the City of Long Beach et al.,Respondents. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y., for respondents Zoning Board ofAppeals of the City of Long Beach, City of Long Beach, and Building Department of the City ofLong Beach. Elovich & Adell, Long Beach, N.Y. (Robert A. Smith of counsel), for respondents AlexandraYaniv and Morris Yaniv.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of therespondent Zoning Board of Appeals of the City of Long Beach dated September 28, 2005,granting the application of the respondents Alexandra Yaniv and Morris Yaniv for a variance,and an action for declaratory and injunctive relief, the petitioners appeal from a judgment of theSupreme Court, Nassau County (Davis, J.), entered March 14, 2006, which denied the petitionand dismissed the hybrid proceeding and action.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the eighth and ninth causes of action; as so modified, the judgment is affirmed, withone bill of costs to the respondents appearing separately and filing separate briefs, and the eighthand ninth causes of action are reinstated and severed.
Contrary to the contentions of the petitioners, the determination of the respondent ZoningBoard of Appeals of the City of Long Beach (hereinafter the board) was amply supported by thehearing record and was not arbitrary and capricious (see generally Matter of Pecoraro v Board [*2]of Appeals of Town of Hempstead, 2 NY3d 608 [2004];Matter of Halperin v City of NewRochelle, 24 AD3d 768 [2005]). The board properly considered and balanced theappropriate statutory factors in reaching its determination (see General City Law §81-b [4] [b]; Matter of Sasso v Osgood, 86 NY2d 374 [1995]; Matter of Mangan v Cianciulli, 19AD3d 598 [2005]; Matter of CFSRealty Corp. v Board of Zoning Appeals of Town of N. Hempstead, 7 AD3d 705[2004]; Matter of Scimone vHumenik, 1 AD3d 370 [2003]; Matter of Marro v Zoning Bd. of Appeals of City ofLong Beach, 287 AD2d 506 [2001]). Similarly, in making its determination, the boardproperly relied upon the personal knowledge and familiarity with the area possessed by itsmembers (see Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]; Matter of Suddellv Zoning Bd. of Appeals of Vil. of Larchmont, 36 NY2d 312 [1975]; Matter of North Shore F.C.P., Inc. vMammina, 22 AD3d 759 [2005]; Matter of Il Classico Rest. v Colin, 254 AD2d418 [1998]; Matter of Michelson v Warshavsky, 236 AD2d 406 [1997]), and the basis ofthat personal knowledge was appropriately set forth in the record (see Matter of CommunitySynagogue v Bates, 1 NY2d 445, 454 [1956]). The petitioners were not entitled to advancenotice that the members of the board would rely upon their own knowledge and experience indeciding the application.
Moreover, the record demonstrates that the board took a hard look at the relevant areas ofenvironmental concern associated with the variance application and set forth an adequatereasoned elaboration of the basis for its determination. Accordingly, the requirements of the StateEnvironmental Quality Review Act (ECL art 8) were satisfied, and the Supreme Court properlyrejected the petitioners' contention to the contrary (see generally Matter of Eadie v Town Bd. of Town of N. Greenbush, 7NY3d 306 [2006]; Matter of Spitzer v Farrell, 100 NY2d 186 [2003]).
The board's issuance of findings of fact subsequent to the commencement of this matter doesnot constitute a basis for reversal (see Matter of North Shore F.C.P., Inc. v Mammina,supra; Matter of Efraim vTrotta, 17 AD3d 463 [2005]; Matter of Warren v Harris, 179 AD2d 660 [1992];Matter of Berka v Seltzer, 170 AD2d 450 [1991]).
In view of the foregoing, the Supreme Court properly dismissed the petitioners' first sevencauses of action, which challenged the administrative determination of the board. However,given the factual disputes among the parties with regard to the plenary claims set forth in theeighth and ninth causes of action, and the absence of a dispositive motion directed at thoseclaims, the court acted prematurely in dismissing them. Accordingly, those causes of action arereinstated and severed. Mastro, J.P., Covello, McCarthy and Dickerson, JJ., concur.