| Matter of Navaretta v Town of Oyster Bay |
| 2010 NY Slip Op 03126 [72 AD3d 823] |
| April 13, 2010 |
| Appellate Division, Second Department |
| In the Matter of John F. Navaretta, Appellant, v Town ofOyster Bay et al., Respondents. |
—[*1] Gregory J. Giammalvo, Town Attorney, Oyster Bay, N.Y. (Donna B. Swanson of counsel),for respondent Town of Oyster Bay. Sinnreich, Kosakoff & Messina, LLP, Central Islip, N.Y. (Timothy F. Hill and Vincent J.Messina of counsel), for respondent Town of Oyster Bay Zoning Board of Appeals.
Proceeding pursuant to CPLR article 78 to review a determination of the Town of OysterBay Zoning Board of Appeals dated November 16, 2006, which, after a hearing, denied thepetitioner's application, in effect, for a special use permit.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with one bill of costs to the respondents.
Initially, we note that the Supreme Court erred in transferring the proceeding to this Courtpursuant to CPLR 7804 (g), since the determination to be reviewed was not made after a hearingheld pursuant to direction of law at which evidence was taken (see CPLR 7803 [4];Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Halperin v City of NewRochelle, 24 AD3d 768, 769 [2005]; Matter of Milt-Nik Land Corp. v City of Yonkers, 24 AD3d 446,447-448 [2005]). Accordingly, the determination is not subject to substantial evidence review.Rather, the question before us is "whether the determination was affected by an error of law, orwas arbitrary and capricious or an abuse of discretion, or was irrational" (Matter of Zupa v Board of Trustees ofTown of Southold, 54 AD3d 957, 957 [2008]; see CPLR 7803 [3]; Matter ofHalperin v City of New Rochelle, 24 AD3d at 770). Nevertheless, since the fulladministrative record is before us, in the interest of judicial economy, we will decide theproceeding on the merits (see Matter ofFNR Home Constr. Corp. v Downs, 57 AD3d 540, 541 [2008]; Matter of Silvera v Town of AmeniaZoning Bd. of Appeals, 33 AD3d 706, 707 [2006]; Matter of Halperin v City ofNew Rochelle, 24 AD3d at 772-773).
In 2002 the petitioner, an attorney, filed an application with the Town of Oyster BayDepartment of Planning and Development (hereinafter the DPD), seeking a permit pursuant tothe Code of the Town of Oyster Bay (hereinafter the Town Code) § 246-5.5.14 to continueoperating his law practice on property zoned for residential use. The ordinance cited by thepetitioner in his application provides that "[o]peration of a home business shall require specialpermit approval from the Zoning Board of Appeals and shall be approved only if the applicantdemonstrates compliance with all of the . . . [*2]standards" which are listed thereunder in the ordinance (TownCode § 246-5.5.14.3). Accordingly, the DPD denied the petitioner's application anddirected him to seek approval from the Town of Oyster Bay Zoning Board of Appeals(hereinafter the ZBA). In 2006 the petitioner submitted an application to the ZBA seeking "apermit for a residential office." After a public hearing, the ZBA denied the petitioner'sapplication, in effect, for a special use permit on the ground that his home business failed tocomply with six of the conditions required by the ordinance for the operation of a home business(see Town Code § 246-5, ¶¶ 5.5.14.3.2, 5.5.14.3.4, 5.5.14.3.6,5.5.14.3.8, 5.5.14.3.9, 5.5.14.3.11).
Contrary to the petitioner's contention, the ZBA is not authorized to analyze his applicationfor a special use permit pursuant to the criteria relevant to use variances (cf. Town Law§ 267-b [2] [b]). "A variance is an authority to a property owner to use property in amanner forbidden by the ordinance while a special exception allows the property owner to puthis property to a use expressly permitted by the ordinance. The inclusion of the permitted use inthe ordinance is tantamount to a legislative finding that the permitted use is in harmony with thegeneral zoning plan and will not adversely affect the neighborhood . . . [T]he use iscontemplated by the ordinance subject only to 'conditions' attached to its use to minimize itsimpact on the surrounding area" (Matter of North Shore Steak House v Board of Appeals ofInc. Vil. of Thomaston, 30 NY2d 238, 243-244 [1972]; see Matter of Pleasant Val.Home Constr. v Van Wagner, 41 NY2d 1028, 1029 [1977]; Matter of Sunrise PlazaAssoc. v Town Bd. of Town of Babylon, 250 AD2d 690, 693 [1998]). Since the locallegislative body has found the special use to be appropriate for the zoning district, a special usepermit is generally granted if the applicant satisfies all of the conditions in the ordinance (see Matter of Juda Constr., Ltd. vSpencer, 21 AD3d 898, 900 [2005]; Matter of Twin County Recycling Corp. vYevoli, 224 AD2d 628, 628-629 [1996], affd 90 NY2d 1000 [1997]; Matter ofJ.P.M. Props. v Town of Oyster Bay, 204 AD2d 722, 723 [1994]). "Failure to meet any oneof the conditions set forth in the ordinance is . . . sufficient basis upon which thezoning authority may deny the permit application" (Matter of Wegmans Enters. vLansing, 72 NY2d 1000, 1001-1002 [1988]; see Matter of Tandem Holding Corp. vBoard of Zoning Appeals of Town of Hempstead, 43 NY2d 801, 802 [1977]; Matter ofSullivan v Town Bd. of Town of Riverhead, 102 AD2d 113, 115 [1984]), and a zoningboard "does not have authority to waive or modify any conditions set forth in the ordinance"(Matter of Dost v Chamberlain-Hellman, 236 AD2d 471, 472 [1997]; see Matter ofVergata v Town Bd. of Town of Oyster Bay, 209 AD2d 527, 528 [1994]).
Here, the record supports the ZBA's findings that the petitioner's home business failed tocomply with several conditions in the special use ordinance, in that his proposed use exceededthe maximum square footage allowed, retained the services of more than one nonresidentemployee, failed to provide sufficient off-street parking, displayed a sign which exceeded themaximum size allowed, failed to maintain the character of the dwelling as a residence, andcreated hazardous or detrimental conditions, including glare from lighting (see TownCode § 246-5, ¶¶ 5.5.14.3.2, 5.5.14.3.4, 5.5.14.3.6, 5.5.14.3.8, 5.5.14.3.9,5.5.14.3.11). Thus, the ZBA's determination had a rational basis and was neither arbitrary andcapricious nor contrary to law (seeMatter of Weber v Baranello, 63 AD3d 955 [2009]; Matter of Zupa v Board ofTrustees of Town of Southold, 54 AD3d at 958; Matter of Halperin v City of NewRochelle, 24 AD3d at 770).
Additionally, the respondent Town of Oyster Bay, which did not render the determinationdenying the special use permit, is not a proper party to this proceeding (see Matter of Wittie v State of N.Y. Off. ofChildren & Family Servs., 55 AD3d 842, 843 [2008]), and the proceeding must, thus,be dismissed insofar as asserted against it.
The petitioner's remaining contentions are without merit. Fisher, J.P., Angiolillo, Dickersonand Leventhal, JJ., concur.