| Matter of Friends of the Shawangunks, Inc. v Zoning Bd. of Appeals ofTown of Gardiner |
| 2008 NY Slip Op 08397 [56 AD3d 883] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Friends of the Shawangunks, Inc., Appellant, vZoning Board of Appeals of Town of Gardiner et al., Respondents. |
—[*1] Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (David C. Brennan ofcounsel), for Zoning Board of Appeals of Town of Gardiner, respondent. DiStasi, Moriello & Murphy, P.C., Highland (Sean Murphy of counsel), for Werner Wustrauand another, respondents.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered February14, 2008 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent Zoning Board of Appeals of the Townof Gardiner granting area variances to respondents Werner Wustrau and Joan Wustrau.
Respondents Werner Wustrau and Joan Wustrau (hereinafter collectively referred to asrespondents) own a 40-acre landlocked parcel of property in the Town of Gardiner, UlsterCounty, that is situated within an area subjected to the Shawangunk Ridge ProtectionRegulations enacted by the Town in 2006 (see Town of Gardiner Zoning Law §220-13.1). In December 2006, respondents submitted an application to respondent Zoning Boardof Appeals of the Town of Gardiner (hereinafter ZBA) requesting area variances to construct a3,200-foot driveway over the land of their neighbor, William Brown, over which respondentsmaintain an easement along an existing dirt road. Specifically, recognizing that the regulationsprohibited [*2]construction on slopes greater than 30% in grade,the construction of driveways longer than 2,500 feet, with more than 250 feet located on a slopegraded between 20% and 30%, and the cutting or grading of an area more than eight feet wide,respondents requested four separate area variances.
The ZBA appointed itself lead agency for review of the application under the StateEnvironmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and classifiedthe project as an unlisted action. At the conclusion of a seven-month review, the ZBA determinedthat the proposed driveway would not have a significant environmental impact, issued a negativedeclaration and granted the variances. This CPLR article 78 proceeding by petitioner ensued.Although Supreme Court found that the project was more appropriately classified as a type IIaction for SEQRA purposes—and, thus, was not subjected to SEQRA review—thecourt also determined that the ZBA nevertheless conducted adequate SEQRA review beforegranting the variances, and dismissed the petition. Petitioner now appeals.
Initially, we agree with petitioner that judicial review of the propriety of an administrativedetermination is limited to the grounds invoked by the agency at the time the determination wasmade and a court may not confirm on other grounds that it finds to be more proper (seeMatter of Berchielli v Zoning Bd. of Appeals of Town of Westerlo, 202 AD2d 733, 734[1994], lv denied 83 NY2d 757 [1994]). As such, Supreme Court exceeded its scope ofreview in determining that the project constituted a type II action, and our analysis will focus onthe propriety of the ZBA's determination based upon its classification of the project as an unlistedaction. We disagree, however, with petitioner's contention that the ZBA failed to conduct anadequate SEQRA review and that the issuance of the negative declaration was an abuse ofdiscretion.
This Court's review of a zoning board's issuance of a negative declaration is limited toascertaining whether the board "identified the relevant areas of environmental concern, took a'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination"(Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986],quoting Aldrich v Pattison, 107 AD2d 258, 265 [1985]; accord Matter of Eadie v Town Bd. ofTown of N. Greenbush, 7 NY3d 306, 318 [2006]). Here, before issuing the negativedeclaration, the ZBA engaged in a lengthy analysis of the relevant environmental concerns,including the identification of threatened or endangered plants and animals on or near the site,the proximity to historical landmarks and places, water runoff or erosion issues, and the potentialvisual impact of the project. During the course of the process, among other things, the ZBAreviewed a full environmental assessment form, solicited input from the Department ofEnvironmental Conservation and neighboring landowners, reviewed reports prepared by twoengineering firms and conducted an on-site visual assessment of respondents' property. Inaddition, numerous public meetings were held to allow the community to comment and voiceconcerns (see Matter of Mayes v Cooper, 283 AD2d 760, 761 [2001]). Based on thisrecord, it is evident that the ZBA properly identified areas of environmental concern and took therequisite hard look at them prior to issuing a well-reasoned negative declaration and, thus, itsissuance of a negative declaration will not be disturbed.
Nor do we find that the ZBA lacked authority to grant the area variances to respondents orthat it abused its discretion in doing so. Specifically, petitioner claims that the ZBA was withoutauthority to grant the variances because, according to the Shawangunk Ridge ProtectionRegulations, the construction of roads on slopes greater than 30% is not permitted "under any[*3]circumstances" (Town of Gardiner Zoning Law §220-13.1 [F] [4] [g] [2]). However, the language cited by petitioner applies only to "roads," asdistinct from "driveways," which are separately regulated (see Town of Gardiner ZoningLaw § 220-13.1 [F] [4] [g] [1], [4], [6], [7]). In any event, zoning boards of appeals are "'invested [by the Legislature] with the power to vary zoning regulations in specific cases in orderto avoid unnecessary hardship or practical difficulties arising from a literal application of thezoning law' " (Matter of Kodogiannis vZoning Bd. of Appeals of Town of Malta, 42 AD3d 739, 739-740 [2007], quotingMatter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97NY2d 86, 90 [2001]; see Town Law § 267-b; Matter of Real Holding Corp. v Lehigh, 2 NY3d 297, 299 [2004]).As such, petitioner's contention that the ZBA lacked authority to grant the variances at issue iswithout merit.
Finally, in making its determination whether to grant the area variances, the ZBA wasrequired to engage in a balancing test, weighing the proposed benefit to respondents against thepossible detriment to the health, safety and welfare of the community (see Town Law§ 267-b [3]), as well as consider the five statutory factors enumerated in Town Law§ 267-b (3) (see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]; Matter of North Country Citizens forResponsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d 1098, 1101[2007]). Here, the ZBA determined that the proposed driveway will not create an undesirablechange in the character of the neighborhood as it will not be visible from neighboring homes orsurrounding areas. It also concluded that the benefit sought by respondents cannot be achieved byany other means inasmuch as the engineer for the Town considered alternatives but ultimatelyconcluded that the proposed configuration of the driveway was the best possible option.Although the variances sought are substantial, the ZBA determined that the driveway will nothave a substantial impact on the community in that the size of the lots in the surrounding area, aswell as the abundant natural screening, will ensure that the driveway will not be visible from anearby road or other houses. Finally, the ZBA determined that respondents' hardship was notself-created as they owned the parcel long before the zoning restrictions were enacted. Based onthe record presented, it cannot be said that the ZBA's determination to grant the area varianceswas arbitrary or an abuse of discretion and, according deference to such determination, it will notbe disturbed (see Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]; Matter ofNorth Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39AD3d at 1102).
Petitioner's remaining contentions, including its claim of impermissible segmentation, havebeen considered and found to be without merit.
Mercure, J.P., Spain and Stein, JJ., concur. Ordered that the judgment is affirmed, withoutcosts.