| Matter of Kaiser v Town of Islip Zoning Bd. of Appeals |
| 2010 NY Slip Op 05559 [74 AD3d 1203] |
| June 22, 2010 |
| Appellate Division, Second Department |
| In the Matter of Augusta Kaiser et al.,Respondents, v Town of Islip Zoning Board of Appeals et al.,Appellants. |
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In a proceeding pursuant to CPLR article 78 to review a determination of the Town of IslipZoning Board of Appeals dated May 16, 2007, which, after a hearing, denied the petitioners'application for area variances, the appeal is from a judgment of the Supreme Court, SuffolkCounty (Costello, J.), dated April 20, 2009, which, upon a decision of the same court datedMarch 3, 2009, granted the petition, annulled the determination, and remitted the matter to theTown of Islip Zoning Board of Appeals to grant the variances.
Ordered that the judgment is reversed, on the law, with costs, the petition is denied, thedetermination is confirmed, and the proceeding is dismissed on the merits.
In 2000 the petitioners purchased a 10,000-square-foot parcel of real property in thecommunity of Seaview, on Fire Island, in the Town of Islip. The Town of Islip Town Codeprohibits in-ground swimming pools in the relevant zoning district (see Town of IslipTown Code § 68-149.1 [A]), and provides that above-ground swimming pools may onlybe installed on lots that are 12,000 square feet or larger (see Town of Islip Town Code§ 68-149.1 [C] [1]). Additionally, prior to December 12, 2006, the Town of Islip ZoningCode provided for a renewable temporary special exception applicable to parcels less than12,000 square feet, which permitted persons with certain medical conditions to erect andmaintain above-ground swimming pools for physical therapy purposes (see Town ofIslip Town Code former § 68-149.2). The Town of Islip Town Board (hereinafter theTown Board) repealed the exception, effective December 12, 2006, signaling that no swimmingpool on a lot smaller than 12,000 square feet was consistent with the general zoning plan(see Town of Islip Town Code § 68-149.1 [D]; Matter of Brady v Town ofIslip Zoning Bd. of Appeals, 65 AD3d 1337, 1339 [2009]).
The petitioners applied for a building permit for the purpose of, inter alia, constructing anabove-ground swimming pool with decking. After that permit was denied, the petitioners filed anapplication with the Town of Islip Zoning Board of Appeals (hereinafter the ZBA), seeking anarea variance permitting them to construct the pool on a lot with an area of 10,000 square feet,rather than the required 12,000 square feet. The petitioners also sought a rear yard setbackvariance of 21.5 feet. After a hearing, the ZBA denied the application.[*2]
The petitioners then commenced this proceedingpursuant to CPLR article 78 to review the determination. The Supreme Court determined that theZBA's determination was arbitrary and capricious, and not consistent with the ZBA's priorprecedent. Consequently, the Supreme Court granted the petition, annulled the determination,and remitted the matter to the ZBA to grant the requested variances. We reverse.
"The judicial responsibility is to review zoning decisions but not, absent proof of arbitraryand unreasonable action, to make them" (Matter of Cowan v Kern, 41 NY2d 591, 599[1977]; see Matter of Brady v Town of Islip Zoning Bd. of Appeals, 65 AD3d at 1338).Upon judicial review, the general rule is that, absent evidence of illegality, a court must sustainthe determination if it has a rational basis in the record before the zoning board (see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter ofIfrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood, 86 NY2d 374,384 [1995]; Matter of Brady v Town of Islip Zoning Bd. of Appeals, 65 AD3d at 1339;Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d1144, 1146-1147 [2009]).
"In applying the balancing test set forth in Town Law § 267-b (3) (b), [a] ZoningBoard is 'not required to justify its determination with supporting evidence with respect to eachof the five [statutory] factors, so long as its ultimate determination balancing the relevantconsiderations was rational' " (Matter of Genser v Board of Zoning & Appeals of Town of N.Hempstead, 65 AD3d at 1147, quoting Matter of Merlotto v Town of Patterson ZoningBd. of Appeals, 43 AD3d 926, 929 [2007]). Here, contrary to the conclusion reached by theSupreme Court, the ZBA's determination, based on its application of the balancing test andconsideration of the relevant factors set forth in Town Law § 267-b (3) (b), had a rationalbasis and was not arbitrary and capricious. The evidence before the ZBA supported theconclusion that granting the requested variances would produce an undesirable change in thecharacter of the neighborhood or a detriment to nearby properties (see Town Law§ 267-b [3] [b] [1]; Matter of King v Town of Islip Zoning Bd. of Appeals, 68AD3d 1113, 1115 [2009]; Matter of Brady v Town of Islip Zoning Bd. of Appeals, 65AD3d at 1340). The evidence before the ZBA established that there were no swimming pools onsubstandard lots within 500 feet of the petitioners' property. Moreover, within the relevantcommunity of approximately 300 homes, only two permanent above-ground pools were grantedby variance rather than the temporary special exception. Further, the conclusions of the ZBA thatthe variances were substantial, and that any hardship was self-created, were rationally based(see Town Law § 267-b [3] [b] [3], [5]).
Contrary to the petitioners' contention, the ZBA's granting of two particular priorapplications for area variances for above-ground swimming pools did not constitute a precedentfrom which the ZBA was required to explain a departure. The petitioners failed to establish thateither case bore sufficient factual similarity to the subject application so as to warrant anexplanation from the ZBA (see Matter of Brady v Town of Islip Zoning Bd. of Appeals,65 AD3d at 1340). Additionally, the ZBA was entitled to consider the effect its decision wouldhave as precedent (see Matter of King v Town of Islip Zoning Bd. of Appeals, 68 AD3dat 1115; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65AD3d at 1147).
The petitioners argued that the proposed swimming pool would have no greater impact thana swimming pool on a standard lot. However, the ZBA properly rejected this argument, asgranting the petitioner's application on this basis alone would render meaningless the TownBoard's legislative decision to limit above-ground swimming pools as of right to lots not lessthan 12,000 square feet (see Matter of King v Town of Islip Zoning Bd. of Appeals, 68AD3d at 1115-1116; Matter of Brady v Town of Islip Zoning Bd. of Appeals, 65 AD3dat 1340). Accordingly, the Supreme Court improperly annulled the ZBA's determination denyingthe petitioner's application. Rivera, J.P., Covello, Balkin and Hall, JJ., concur.