| Matter of Genser v Board of Zoning & Appeals of Town of N.Hempstead |
| 2009 NY Slip Op 06548 [65 AD3d 1144] |
| September 15, 2009 |
| Appellate Division, Second Department |
| In the Matter of Robert E. Genser et al.,Respondents, v Board of Zoning and Appeals of Town of North Hempstead, AlsoKnown as Board of Zoning Appeals of Town of North Hempstead et al.,Appellants. |
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In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Boardof Zoning Appeals of the Town of North Hempstead dated June 6, 2007, which, after a publichearing, denied the application of the petitioners-plaintiffs for an area variance with respect to lotwidth, and action for a judgment declaring, inter alia, that the subject property was taken withoutjust compensation, the appeal is from a judgment of the Supreme Court, Nassau County(Galasso, J.), entered November 27, 2007, which granted the petition pursuant to CPLR article78, annulled the determination, and remitted the matter to the Board of Zoning Appeals of theTown of North Hempstead for the issuance of the requested area variance.
Ordered that the judgment is reversed, on the law, with costs, the petition for relief pursuantto CPLR article 78 is denied, the determination is confirmed, the cause of action for reliefpursuant to CPLR article 78 is dismissed on the merits, and the petitioners-plaintiffs' secondcause of action is severed.
On December 15, 2005, the Nassau County Planning Commission approved the applicationof the petitioner-plaintiff Robert E. Genser to subdivide his property into two parcels. The largerparcel (hereinafter parcel number 1), which had accommodated a single-family house sinceapproximately 1949, was about 109.02 feet wide and the smaller parcel (hereinafter parcelnumber 2), which was vacant, was about 73.04 feet wide.
Also on December 15, 2005, a proposed zoning amendment was submitted to the NassauCounty Planning Commission, which recommended a "local determination" by the Town ofNorth Hempstead. According to the Zoning Board of Appeals of the Town of North Hempstead(hereinafter the Zoning Board), this proposed zoning change had been made public on November29, 2005.
On or about December 30, 2005, Genser executed a contract of sale whereby he agreed tosell parcel number 1, with the existing house, to Norman Roland and Marilyn Pearl Roland, and[*2]parcel number 1 was thereafter conveyed to them.
Meanwhile, after a public hearing on January 3, 2006, the Town of North Hempsteadadopted the zoning amendment which provided, inter alia, that the minimum lot width in theresidence A district where the lot is located must be either 65 feet or the average width of the lotswithin a 200-foot radius, whichever is greater, but in no event greater than 100 feet wide.Although the average lot width in the subject area is 129.47 feet, the Town of North HempsteadZoning Code capped the required lot width at 100 feet.
When Genser sought to build a single-family residence on parcel number 2, the buildingdepartment disapproved the application on the ground that the lot width of 73.04 feet did notcomply with Town of North Hempstead Zoning Code § 70-27.1 (D), which required aminimum lot width of 100 feet.
Genser's architect, Alan Cooper, applied for an area variance from the new lot widthrequirements. According to Cooper, the proposed house met all other zoning requirements and ithad been "designed to aesthetically blend with the surrounding neighborhood, with no negativeimpact on the neighborhood." However, at the public hearing on the application, a member of theZoning Board stated that he looked at parcel number 2, and the other lots on the same side of thestreet as parcel number 2 which "appear visually to be greater, significantly greater than thestreet frontage . . . creating one lot that will have more narrow street frontage thanits directly adjacent lots and that is of significant concern." Further, it is undisputed that parcelnumber 2 is the narrowest on its block.
On June 6, 2007, the Zoning Board issued the determination under review denying thevariance. The Zoning Board found that "there clearly will be an undesirable change in thecharacter of the neighborhood and a detriment to nearby properties" because Genser's lot wouldbe the narrowest within 200 feet, the second narrowest being 79.2 feet wide. The Zoning Boardacknowledged that Genser suffered a difficulty, since parcel number 2, without the variance, wasnot a buildable lot. However, the Zoning Board found that the difficulty was self-created "at leastto some degree" because the proposed zoning change was made public on November 29, 2005;therefore "[w]hether or not the applicant, or his counsel, knew of the impending zoning changewhen the contract was signed, they could have easily ascertained the relevant information."
Genser and, his architect, Cooper, commenced this hybrid proceeding pursuant to CPLRarticle 78 to review the determination of the Zoning Board, and action to declare, in the eventthat the determination was not annulled, that Genser's property was taken without justcompensation.
The Supreme Court erroneously found that Genser had "a vested right not only just to dividethe property but also to sell and/or develop it" when the Nassau County Planning Commissionapproved his subdivision application on December 15, 2005. The law is that a property owneracquires vested rights when, "pursuant to a legally issued permit, he demonstrates a commitmentto the purpose for which the permit was granted by effecting substantial changes and incurringsubstantial expenses to further the development" (Town of Orangetown v Magee, 88NY2d 41, 47 [1996]), which was not established here.
Further, the Supreme Court improperly annulled the determination of the Zoning Boarddenying the area variance. Judicial review of a determination denying an area variance is limitedto determining whether the action taken by the zoning board was illegal, arbitrary, or an abuse ofdiscretion (see CPLR 7803 [3]; Matter of Halperin v City of New Rochelle, 24 AD3d 768,770-771 [2005]). Thus, the determination of a zoning board should be sustained upon judicialreview if it has a rational basis and is not arbitrary and capricious (see Matter of Sasso vOsgood, 86 NY2d 374, 384 [1995]; Matter of Pasceri v Gabriele, 29 AD3d 805 [2006]). In applyingthe balancing test set forth in Town Law § 267-b (3) (b), the Zoning Board is "not requiredto justify its determination with supporting evidence with respect to each of the five factors, solong as its ultimate determination balancing the relevant considerations was rational" (Matter of Merlotto v Town of PattersonZoning Bd. of Appeals, 43 AD3d 926, 929 [2007]). "Scientific or other experttestimony is not necessarily required; objections based upon facts may be sufficient"(id.). In rendering its determination, the personal observations of [*3]members of the Zoning Board may be considered (see Matter of Rosewood Home Bldrs., Inc.v Zoning Bd. of Appeals of Town of Waterford, 17 AD3d 962, 964 [2005]; Matterof Holy Spirit Assn. for Unification of World Christianity v Rosenfeld, 91 AD2d 190, 201[1983]). In the instant case, the evidence before the Zoning Board indicated that granting theproposed variance would produce "an undesirable change . . . in the character of theneighborhood or a detriment to nearby properties" (Town Law § 267-b [3] [b] [1]).
Moreover, the Zoning Board "was entitled to consider the effect its decision would have asprecedent" (Matter of Gallo vRosell, 52 AD3d 514, 516 [2008]). In this case, granting the variance would not only seta negative precedent: it would also reduce the average lot width in the area, impairing theeffectiveness of the zoning ordinance.
Further, Genser's difficulty was self-created "at least to some degree," because Genser had atleast constructive notice of the proposed zoning change when he signed the contract of sale withrespect to parcel number 1 on December 30, 2005, one month after the proposed zoningamendment was made public on November 29, 2005. Although this factor, standing alone, wouldbe insufficient to deny the variance (see Town Law § 267-b [3] [b] [5]), the fivefactors, considered collectively, establish that the determination of the Zoning Board was notarbitrary and capricious or irrational.
We note that the Supreme Court did not reach the issue of whether the application of theamended zoning code to Genser's property was confiscatory. Therefore, that issue is not beforeus.
The remaining contentions of Genser and Cooper are without merit or need not be reached inlight of our determination. Rivera, J.P., Covello, Dickerson and Chambers, JJ., concur.