| Matter of Rendely v Town of Huntington |
| 2007 NY Slip Op 07850 [44 AD3d 864] |
| October 16, 2007 |
| Appellate Division, Second Department |
| In the Matter of Marie Rendely, Respondent, v Town ofHuntington et al., Appellants, et al., Respondents. |
—[*1] Marie Rendely, Huntington, N.Y., petitioner-respondent pro se.
In a proceeding pursuant to CPLR article 78 to review an amended determination of theZoning Board of Appeals of the Town of Huntington dated September 18, 2002, which, after ahearing, imposed conditions upon the granting of the petitioner's application to erect an accessorybuilding on her residential property, the appeal is from so much of a judgment of the SupremeCourt, Suffolk County (Jones, Jr., J.), entered December 9, 2005, as granted the petition in part,annulled the conditions imposed by the Zoning Board of Appeals of the Town of Huntington,and directed the Zoning Board of Appeals of the Town of Huntington to issue the necessarypermits without conditions.
Ordered that the judgment is modified, on the law, by deleting the provision thereof grantingthat branch of the petition which was to annul the condition imposed by the Zoning Board ofAppeals of the Town of Huntington prohibiting the petitioner from using the proposed structureas habitable living space and substituting therefor a provision denying that branch of the petition;as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements.
"In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board ofappeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary [*2]and capricious, or an abuse of discretion" (Matter of Arceri v Town of Islip ZoningBd. of Appeals, 16 AD3d 411, 412 [2005]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]). "Inapplying the 'arbitrary and capricious' standard, a court inquires whether the determination underreview had a rational basis. Under this standard, a determination should not be disturbed unlessthe record shows that the agency's action was 'arbitrary, unreasonable, irrational or indicative ofbad faith' " (Matter of Halperin v City ofNew Rochelle, 24 AD3d 768, 770 [2005], quoting Matter of Cowan v Kern, 41NY2d 591, 599 [1977]). "As a general rule, zoning ordinances are in derogation of the commonlaw and must be strictly construed against the municipality" (Matter of Arceri v Town of IslipZoning Bd. of Appeals, 16 AD3d at 412). "However, this rule is subject to the limitation thatwhere . . . it would be difficult or impractical for a legislative body to promulgatean ordinance which is both definitive and all-encompassing, a reasonable amount of discretion inthe interpretation of the ordinance may be delegated to an administrative body or official"(id.). " 'A zoning board may, where appropriate, impose 'reasonable conditions andrestrictions as are directly related to and incidental to the proposed use of the property,' andaimed at minimizing the adverse impact to an area that might result from the grant of a varianceor a special permit' " (Matter of St. Onge v Donovan, 71 NY2d 507, 515-516 [1988],quoting Matter of Pearson v Shoemaker, 25 Misc 2d 591, 592 [1960]; see Matter of Martin v Brookhaven ZoningBd. of Appeals, 34 AD3d 811, 812 [2006]). However, if a zoning board imposesconditions that are unreasonable or improper, those conditions may be annulled (see Matter ofMartin v Brookhaven Zoning Bd. of Appeals, 34 AD3d at 812; Matter of Baker vBrownlie, 270 AD2d 484, 485 [2000]).
It is undisputed that the petitioner's hearing testimony and the evidence that she submitted tothe Zoning Board of Appeals in support of her application established that the ways in which shestated that she intended to use the proposed structure qualified as "accessory uses" (Town ofHuntington Code § 198-2 [B]). Contrary to the Zoning Board of Appeals' apparentdetermination, the design features that were the subject of the first three conditions—afireplace or wood burning stove, fixed interior stairs, and a second floor—did not removethe proposed structure from the ambit of the definition of "accessory building" (id.).Absent any evidence to the contrary, the inclusion of these elements in the structure would notnecessarily alter the proposed building's otherwise acknowledged status as "a subordinatebuilding, the use of which [would be] clearly incidental to or customarily found in connectionwith the main building" (id.). These design elements were not expressly prohibited in anaccessory building under the Town of Huntington Code, and there was no evidence in the recordto suggest that, by including them in the structure, the petitioner intended to use the structure asanything other than an accessory building for accessory uses. Rather, it appears that theseconcerns were based solely on the conjecture and speculation of members of the Zoning Board ofAppeals (cf. Matter of Eddy v Niefer, 297 AD2d 410, 413 [2002]; Matter of KamHampton I Realty Corp. v Board of Zoning Appeals of Vil. of E. Hampton, 273 AD2d 385,387 [2000]; Matter of Frank v Scheyer, 227 AD2d 558, 559 [1996]; Matter of PineHill Concrete Mix Corp. v Town of Newstead Zoning Bd. of Appeals, 161 AD2d 1187, 1188[1990]). Accordingly, the Supreme Court properly annulled the first three conditions imposed inthe Zoning Board of Appeals' determination. Conversely, the condition imposed by the ZoningBoard of Appeals providing that the proposed accessory building may never be used as habitableliving space was neither unreasonable nor improper, and was wholly consistent with the Town ofHuntington Code (see Town of Huntington Code § 198-2 [B]; § 198-10[G]).
The parties' remaining contentions are not properly before this Court or without merit.Miller, J.P., Ritter, Santucci and Dillon, JJ., concur.