| Matter of Trump on the Ocean, LLC v Cortes-Vasquez |
| 2010 NY Slip Op 06804 [76 AD3d 1080] |
| September 28, 2010 |
| Appellate Division, Second Department |
| In the Matter of Trump on the Ocean, LLC,Respondent, v Loraine A. Cortes-Vasquez et al., Appellants. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Steven R. Schlesinger of counsel), forpetitioner/plaintiff-respondent.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the SouthernRegion, Hudson Valley Board of Review, dated April 30, 2008, which, after a hearing, deniedthe application of the petitioner/plaintiff for a variance and action, inter alia, for specificperformance of a lease, the respondents/defendants appeal, as limited by their brief, from somuch of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated December 1,2008, as, upon a decision of the same court dated October 21, 2008, granted that branch of thepetition which was to annul the determination on the ground that it was arbitrary and capricious.
Ordered that the judgment is modified, on the law and the facts, by adding a provisionthereto remitting the matter to the Southern Region, Hudson Valley Board of Review, to grantthe requested variance, subject to any reasonable condition it deems appropriate; as so modified,the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matteris remitted to that entity for further proceedings.
In 2004, the New York State Office of Parks, Recreation and Historic Preservation(hereinafter OPRHP) solicited bids from private developers to undertake, and bear the expenseof, the design and construction of "a signature year-round public dining and catering facility" toreplace the former Boardwalk Restaurant in Jones Beach State Park. OPRHP ultimately selecteda developer who later formed the petitioner/plaintiff, Trump on the Ocean, LLC (hereinafter thepetitioner), to develop the state-owned site. Due to strict limitations imposed by OPRHP on thefootprint and height of the building, the petitioner designed the facility with a basement thatwould be used for, among other things, kitchens, employee lounge areas, and utility equipment.
The petitioner and the State of New York, through OPRHP, subsequently entered into a40-year lease, according to which the petitioner was authorized to construct and operate thefacility. [*2]Pursuant to the lease, the petitioner is responsible forall necessary maintenance and repairs, ordinary and extraordinary, and must obtain floodinsurance for the facility, at no cost to the public.
The lease further specified that the project design was required to comply with the New YorkState Uniform Fire Prevention and Building Code (hereinafter the Uniform Code) and that thepetitioner was responsible for obtaining any necessary approvals. In this regard, the project site islocated in an area designated by the Federal Emergency Management Administration as a coastalhigh hazard area, in that it is subject to high-velocity wave action. Consequently, the project issubject to sections 1612.4 and 1612.5 of the Building Code of New York State (hereinafter theBuilding Code), a component of the Uniform Code (see 19 NYCRR 1219.1, 1221.1). (19NYCRR 1221.1 was amended effective January 1, 2008. It is undisputed that, because thepermitting process for the subject facility was commenced prior to that date, the former versionof that regulation, which references the 2002 edition of the Building Code, is applicable here.)Those sections of the Building Code require that buildings constructed in flood hazard zones bedesigned in accordance with standards set forth in a manual, known as ASCE 24-98, publishedby the American Society of Civil Engineers, and that the buildings be certified as such.
As relevant to the determination under review, ASCE 24-98 essentially requires that thelowest horizontal structural member of the lowest floor of the structure be built above theelevation to which there is a 1% annual chance that flood waters might rise, or in other words,that it be built to, or above, the "design flood elevation" (hereinafter DFE). While ASCE 24-98allows enclosed areas to be constructed below the DFE, those areas may only be used forparking, building access, and storage; they must be constructed with breakaway walls; and theycannot contain certain utility equipment. The proposed facility is also subject to Building Code§ 1003.3, which requires "egress doors" to be side-hinged swinging doors (except undercertain conditions inapplicable here). Accordingly, in order to construct the proposed occupiedbasement, which was similar to the occupied basement used in the former Boardwalk Restaurant(to which the ASCE 24-98 standards did not apply), OPRHP applied on behalf of the petitionerto the Southern Region, Hudson Valley Board of Review (hereinafter the Board), for a variancefrom sections 1612.4, 1612.5 and 1003.3 of the Building Code.
At the hearing on the variance application, the petitioner submitted evidence with regard toits proposed alternative to strict compliance with the above-referenced provisions. There was noopposing evidence offered. The petitioner established that through the use of "dryfloodproofing"—a "floodproofing method" used to create a waterproof "structureenvelope"—the facility would be designed (and certified as such) to prevent waterinfiltration and to "resist flotation, collapse and lateral movement" due to the effects of flood andhigh-velocity wave action. Further, four loading docks leading to the basement, which are locatedbelow the DFE, are designed to protect the loading entrances from any rise in groundwater, andare built to an elevation that is higher than the maximum tide surges occurring during "normalstorm conditions," as recorded by the National Oceanic and Atmospheric Administration(hereinafter NOAA). The loading docks will further be equipped with specialized flood doors,which will serve to seal the loading docks in the event of significant storms that may cause floodsexceeding this elevation. In this regard, the facility will be in constant communication with theNassau County Office of Emergency Management (hereinafter OEM), which has detailed plansto implement evacuation orders 36 hours before the arrival of storms of a magnitude that wouldrequire use of the flood doors. Electrical power and gas services also would be shut down duringsuch an event.
After hearing the evidence, the Board denied the variance application, concluding that thepetitioner had failed to make the "threshold" showing that granting the requested variance wouldnot "substantially adversely affect [the Building Code's] provisions for health, safety, andsecurity" (19 NYCRR 1205.4 [a]), and, in any event, that the petitioner had also failed todemonstrate its entitlement to the variance under 19 NYCRR 1205.4 (b) (3) and (5), as assertedin its application. The petitioner then commenced the present hybrid CPLR article 78 proceedingand action, seeking, as relevant here, to annul the Board's determination on the ground that it wasarbitrary and capricious. The Supreme Court, generally concluding that the Board's reasoningwas based upon misapprehensions of fact and was contradicted by the evidence, granted thatbranch of the petition and annulled the determination.
"While judicial review [of administrative decisions] must be meaningful, the courts may not[*3]substitute their judgment for that of the agency for it is nottheir role to weigh the desirability of any action or [to] choose among alternatives" (Matter of Riverkeeper, Inc. v Planning Bd.of Town of Southeast, 9 NY3d 219, 232 [2007] [internal quotation marks omitted]).Rather, an agency determination "should be annulled only if it is arbitrary, capricious orunsupported by the evidence" (id. at 232). A determination is arbitrary if it is made"without sound basis in reason and . . . without regard to the facts" (Matter ofPell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222, 231 [1974]; see Matter of Marotta v Scheyer, 40 AD3d 645, 647 [2007]).
As the Board correctly interpreted its authority, it is empowered to grant a variance fromprovisions of the Building Code where the petitioner demonstrates entitlement to such reliefupon any one of the six grounds listed in 19 NYCRR 1205.4 (b), provided that the variancewould not "substantially adversely affect provisions for health, safety, and security and thatequally safe and proper alternatives may be prescribed" (19 NYCRR 1205.4 [a]). Here, the Boardrationally concluded that the petitioner was not entitled to a variance on the ground that strictcompliance "would inhibit achievement of some other important public policy" (19 NYCRR1205.4 [b] [3]) because the petitioner failed to present sufficient evidence to support itsconclusory contention that the proposed facility would not be economically viable if thebasement uses were moved to the first floor of the facility. Nonetheless, the Board's conclusionthat the petitioner failed to show that "strict compliance . . . would be unnecessaryin light of alternatives" which would achieve the Building Code's intended health, safety, andsecurity objectives (see 19 NYCRR 1205.4 [b] [5]) was "without sound basis in reasonand . . . without regard to the facts" as was, a fortiori, its conclusion that thevariance would "substantially adversely affect the [Building Code's] provisions for health, safety,and security" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d at 231; 19 NYCRR 1205.4 [a];see Matter of Marotta v Scheyer, 40 AD3d at 647).
Significantly, the Board's determination in this respect was not based upon any objection tothe use of dry floodproofing, or any related concern regarding the prospective impermeability andstructural integrity of the facility's walls and foundation in the event of a flood. Rather, except foran issue concerning the ability of the Fire Department to service the facility, which was irrelevantto the specific variance application before the Board, all of the Board's findings in support of itsdetermination were based upon the use of the flood doors to seal the loading docks. The evidencein the record, however, served only to demonstrate that the proposed facility with the flood doorswould not "substantially adversely affect provisions for health, safety, and security," and that thepetitioner's alternative was "equally safe" as the provisions of the Building Code (19 NYCRR1205.4 [a]).
The Board made 15 separate findings as the basis for its determination that the petitionerfailed to meet its burden of proof. Most significant, as the appellants argue, the Board found(findings one through three) that the flood doors, which are horizontal sliding doors that must beoperated manually, could block required exits and, thus, as characterized by the appellants'counsel, potentially "trap employees in the basement," threatening their "lives and safety." Withrespect to this conclusion, it appears that the Board may have misapprehended that the flooddoors would only be deployed under the rare circumstances of a flood emergency, while at allother times, the doors are in a recessed position. As such, three of the loading docks wouldalmost always be available for egress. More importantly, even when the flood doors are closed,egress from the basement is provided by two staircase exits leading to the first floor, which is atthe level of the DFE. The record upon which the Board's determination was made was devoid ofany evidence that these staircase exits were unsuitable to allow employees to safely exit thebasement, including in the event that water should infiltrate the building. Due to the presence ofthese staircase exits, the Board's conclusion that the closing of the flood doors would trapemployees in the basement was irrational.
While the appellants now argue that the staircase exits do not independently conform to theBuilding Code's egress requirements because they are placed too closely together, this issue israised for the first time on appeal, and, significantly, was not the basis of the Board'sdetermination to deny the variance. Nevertheless, the Board may grant the requested variancessubject to any reasonable conditions deemed appropriate, which, if reasonable and appropriate,could include movement of the staircase exits to provide an adequate distance between them(cf. Matter of St. Onge v Donovan, 71 NY2d 507, 516 [1988]). In this manner, thebasement can be constructed to conform to the Building Code's egress requirements, [*4]even when the flood doors are deployed, by providing theappropriate number of exits, separated by proper distance, and utilizing the side-hinged swingingdoors required by Building Code § 1003.3. The loading docks simply serve, in the absenceof flooding conditions, as additional, but non-essential, exits.
The Board's remaining findings—many of which simply state a fact about the doors,without providing a nexus between the fact stated and any perceived substantial, adverse effecton the Building Code's objectives—either similarly disregarded the facts or are irrationallyspeculative. In addition to the issue of blocked exits, the Board observed that the doors requiredregular maintenance and inspection and had to be manually operated by trained personnel(findings seven through nine). The evidence demonstrated, however, that Presray Corporation(hereinafter Presray), which designed and manufactures the doors, will be contracted to inspectthe doors twice annually and that a dedicated security officer, trained by Presray in the use andmaintenance of the doors, will be present at the site 24 hours per day.
The Board's finding (finding 10) that the doors might become clogged with debris due totheir location at the loading docks, and thus prevent them from being closed properly, appears tofollow from the misapprehension that the doors would be used "in the course of business." Infact, the evidence demonstrated that, when not deployed (closed), which is most of the time, thedoors are recessed and covered by "protective shrouds." In addition, the trenches in the floorthrough which the doors slide are similarly protected. Indeed, removing the protective doorshrouds and opening the trench covers are the first steps in deploying the doors into their closedor sealed position.
The Board further found (finding six) that the doors were not certified by "an independenttesting laboratory" such as Underwriters Laboratory as capable of performing their intendedfunction. The evidence demonstrated, however, that Underwriters Laboratory does not certify thistype of product and, more importantly, that Presray is certified by the Nuclear UtilitiesProcurement Issues Committee, which allows Presray to supply its product to the nuclearindustry in accordance with federal quality assurance standards (see 10 CFR part 50,appendix B). In conjunction with this certification, the company is audited every 24 months forquality assurance purposes. The Board failed to explain why this certification process is notsufficient to meet its concerns. Moreover, the doors that will be manufactured for the subjectfacility will be tested first in a fixture built at the Presray plant, and again after they are installedat the subject facility, to ensure that they withstand flooding conditions without leakage. Whilethe Board may not be familiar with the flood doors, the evidence established that the doors arenot a recent, untested technology. Rather, the record contains evidence of the successful use ofthe doors in a telecommunications electronics switching station in New Orleans; in facilities,such as nuclear power plants and hospitals, where safety is of utmost concern; and in commercialestablishments serving the public, such as hotels and banks. The petitioner also offered evidencethat similar doors withstood the onslaught of hurricane conditions without incident.
While the Board cited as one of its concerns that the inflatable seals on the doors arepower-operated (finding 12), it acknowledged that they could be inflated manually if power wereto be shut down. The Board's findings regarding the time required to close the doors, particularlyif the seals had to be manually inflated, and the unspecified "unsafe conditions" that could occurif water reached the utility equipment in the basement (findings 12, 14, and 15), fail to take intoaccount the type of storm for which the doors will be needed. Data recorded by NOAA indicatesthat tide surges resulting from "normal storm conditions" would not likely exceed the elevationof the loading dock openings. Rather, flooding conditions for which the doors would need to bedeployed primarily occur when storm winds exceed 50 miles per hour. It is only in these limitedcircumstances that the doors would need to be deployed, and during such a significant storm, therestaurant would not be operational, particularly in light of OEM's 36-hour evacuation policy.Indeed, the Board acknowledged that "during the type of storm warning in which the doors aremost likely to be used, all of Jones Beach would be subject to a mandatory evacuation order,"which includes a shutdown of electric power and gas services. Simply put, it is not suddenemergencies, as would require very quick action, that the doors are needed to protect against, butrather, approaching storms which provide adequate opportunity to accomplish the task ofevacuating and securing the building and the flood doors. Notably, the prior BoardwalkRestaurant also utilized an occupied basement, built to much lower design standards, which wasnever undermined by flooding.
The Board's reasoning that the doors might mechanically malfunction in such a manner as[*5]cannot be resolved by local mechanics or the trained securityofficer, in communication with Presray, but rather, that Presray will have to physically come tothe restaurant to service the doors, and will not have time to make the 90-minute trip before astorm hits (finding 13), is too speculative to serve as a basis for denying the variance. Notably,the doors have been used in facilities as distant from Presray's New York offices as Texas andNew Orleans. Similarly unduly speculative is the possibility that Presray, which has been inbusiness for over 50 years, might go out of business, making replacement parts unavailable(finding 11). Again, this is not the only facility to which the doors are supplied, and it is just aseasy to speculate that another business concern would emerge to fill that need should Presray goout of business.
Finally, the Board's reasoning that the Wantagh Fire Department was not consulted as towhether it could service the facility in the event of a flood (findings 4 and 5) is not relevant to theapplication before it. The application before the Board was for a variance from specificprovisions of the Building Code dealing with the construction of occupied spaces in a flood zoneand with egress doors, which provisions are unrelated to fire department services. Indeed, theappellants indicated to the Supreme Court that the lack of input from the Wantagh FireDepartment during the hearing "was mentioned in the decision as a concern. But, obviously,that's not what the decision was based on. It was just mentioned as a concern."
Because examination of the Board's findings in light of the evidence reveals that itsreasoning misapprehended or disregarded the facts and was overly speculative, the Board'sdetermination lacked a rational basis, particularly in light of the Board's ability to imposereasonable conditions in granting the variance (cf. Matter of Long Is. Affordable Homes, Inc. v Board of Appeals of Townof Hempstead, 57 AD3d 996, 997 [2008]; Matter of Marotta v Scheyer, 40AD3d at 647; Matter of Baker v Brownlie, 248 AD2d 527 [1998]). We, therefore, modifythe Supreme Court's judgment annulling the determination by adding to the judgment a provisionremitting the matter to the Board to grant the requested variance, subject to any reasonableconditions it deems appropriate; as so modified, the judgment is affirmed insofar as appealedfrom. Skelos, J.P., Angiolillo, and Leventhal, JJ., concur.
Roman, J., dissents, and votes to reverse the judgment insofar as appealed from and deny thatbranch of the petition which was to annul the determination on the ground that it was arbitraryand capricious, with the following memorandum:
On January 9, 2004, the New York State Office of Parks, Recreation and HistoricPreservation (hereinafter OPRHP) published a Request for Proposals (hereinafter RFP) to selecta private developer to design, construct, and operate a new restaurant on the site of the formerBoardwalk Restaurant located at Jones Beach State Park on Long Island. The RFP clearlynotified prospective bidders that, "[t]he New York State Building Code will apply to all work andstructures" and that the selected developer must "comply with all applicable federal, state lawsand regulations, including any historic preservation laws and regulations, as applicable." OPRHPselected a developer who later formed the petitioner/plaintiff, Trump on the Ocean, LLC(hereinafter the petitioner), and on September 25, 2006, OPRHP and the petitioner executed a40-year lease. Jones Beach State Park has been designated by the Federal EmergencyManagement Agency (hereinafter FEMA) to be a coastal high hazard zone, which is defined as acoastal area that is subject to high-velocity wave action from storms or seismic sources. Inessence, this classification dictated that the building had to be constructed to withstand a"100-year flood elevation."
The design and construction of buildings located in such flood hazard zones is governed bythe Building Code of New York State (hereinafter the Building Code), a component of the NewYork State Uniform Fire Prevention and Building Code (hereinafter the Uniform Code;see 19 NYCRR 1219.1, 1221.1). Pursuant to Building Code of New York State §1612.4, for safety purposes, the design and construction of a building located in a flood hazardarea must comply with the standards set forth in the "Flood Resistant Design and ConstructionManual" published by the American Society of Civil Engineers, which is commonly abbreviatedas "ASCE 24-98." The petitioner was aware of these requirements, as the lease [*6]stated that "[d]esigns for all projects proposed by Lessee shall be incompliance with the NYS Uniform Building and Fire Code."
This case arises because the petitioner's proposed design deviates from the requirements ofthe Building Code and, therefore, the petitioner seeks variances from 26 provisions of theBuilding Code. The procedure for obtaining a variance is set forth in 19 NYCRR part 1205 etseq., which states, inter alia, that the Secretary of State has created several regional boards toreview applications for variances. Each regional board of review consists of five members,including one registered architect, one professional engineer, one building code expert, one fireprevention expert, and one businessman or lawyer (see 19 NYCRR 1205.3 [a]).
Pursuant to 19 NYCRR 1205.4 (a), each regional board of review has the power to "vary ormodify, in whole or in part, any provision or requirement of the Uniform Code in cases wherestrict compliance . . . would entail practical difficulties or unnecessary hardship orwould otherwise be unwarranted; provided, however, that any such variance or modification shallnot substantially adversely affect provisions for health, safety, and security and that equally safeand proper alternatives may be prescribed."
In general, ASCE 24-98 requires that new construction in a flood hazard zone must be"designed, constructed, connected and anchored to resist flotation, collapse or permanent lateralmovement resulting from the action of hydrostatic, hydrodynamic, wind and other loads during[a] design flood." Pursuant to ASCE 24-98 § 4.6, enclosed areas that are below the designflood level are only permitted if they are used for parking, building access, or storage.
The petitioner's proposed design deviates from ASCE 24-98 by including an occupiedbasement located below design flood elevation in a flood hazard area which is subject tohigh-velocity wave action. The proposed basement facility would contain a kitchen, storage,ancillary offices, employee restrooms, and utility rooms. The proposed plan also includessituating electrical equipment below the design of the flood elevation. Pursuant to section 8.1 ofASCE 24-98, "[u]tilities and attendant equipment" cannot be located below the design floodelevation.
The developer is limited by the OPRHP design criteria to a particular footprint on the firstfloor, and the petitioner determined that the kitchen and electrical equipment could not be locatedon the main floors of the facility without reducing the amount of space available for therestaurant and reducing income to the point where the facility would not be economically viable.The petitioner claimed that the Board of Review should grant the variance pursuant to 19NYCRR 1205.4 (b) (3) because strict compliance with the Building Code would inhibit theachievement of an important public policy, namely, the construction of a restaurant at JonesBeach State Park that would generate income for New York State.
The application for the variance stated that the issues of safety and security would beaddressed by the Nassau County Office of Emergency Management to prevent flooding fromaffecting the health and security of the building's occupants; that the design employed dryflood-proofing or flood damage resistant material that makes portions of the buildingimpermeable to flood waters; and that the building would include the utilization of speciallydesigned horizontally operating flood doors instead of side-hinged swinging doors, to close theexits to the loading docks in the basement which would be penetrable by flood waters in theevent of a flood.
According to the petitioner, the horizontal sliding doors were specially designed by thePresray Corporation (hereinafter Presray), which had provided similar watertight doors forhospitals, hotels, electronic switching stations, nuclear power plants, and military installations.However, pursuant to Building Code § 1003.3.1, all egress doors must be side-hingedswinging doors unless one of the stated exceptions applies. The requested variance asserted thatstrict compliance with the Building Code was not required because the flood doors and thedry-flood proofed design sufficiently protected the employees and electrical equipment thatwould be located in the basement.
The hearing took place on March 4, 2008, before the Southern Region, Hudson Valley [*7]Board of Review (hereinafter the Board) in Garden City. Pursuantto 19 NYCRR 1205.4 (b), the Board may vary or modify a provision or requirement of theBuilding Code when the party seeking the variance or modification has shown by the weight ofthe evidence that strict compliance would, inter alia, "inhibit achievement of some otherimportant public policy" or "be unnecessary in light of alternatives which ensure the achievementof the code's intended objective or in light of alternatives which, without a loss in the level ofsafety, achieve the code's intended objective more efficiently, effectively, or economically" (19NYCRR 1205.4 [b] [3], [5]). To obtain the variance, the petitioner had the burden ofdemonstrating to the Board that the proposed plans would not undermine the Building Code'sprovisions forbidding construction which substantially adversely affects health, safety, andsecurity (see 19 NYCRR 1205.4 [a]).
Among the petitioner's witnesses at the hearing was the president of Presray, Jason Smith,who testified that his company, which manufactured the horizontal sliding doors, was located inPawling, about 1½ hours away from Jones Beach. Smith explained that his company wouldtrain the "resident technicians," who would clean and maintain the horizontal sliding doors andwould conduct a "comprehensive inspection" twice a year to make sure that the doors were in"perfect working order." Although Smith admitted that there were at least four steps involved inclosing the sliding horizontal doors, he asserted that a trained person could close the doors inabout 15 minutes.
The Board voted four to one to deny the variance. In a decision dated April 30, 2008, theBoard determined that the petitioner failed to meet the threshold requirement of proving thatgranting the variance would not substantially adversely affect provisions for health, safety, andsecurity the Board also concluded that "the proposed alternatives do not ensure safety and publicwelfare." The Board rejected the petitioner's argument that strict compliance with the relevantrequirements of the Building Code would inhibit the achievement of an important public policy.The Board found in this regard "[t]he petitioner did not demonstrate to the satisfaction of theBoard that it was not possible to construct an economically viable facility, which would complywith all applicable provisions of the [Building Code] at this site."
The Board listed 16 findings in support of its determination, as follows: (1) if the proposedflood doors were closed, they would block the required exit doors; (2) the proposed doors werenot automatic and, if the flood doors were closed, a person attempting to exit the basementthrough the basement's exit doors would be required to open the flood doors manually; (3) atleast 30 to 35 people would be working in the basement with a maximum occupancy of 85persons; (4/5) the fire-rescue department nearest to the facility is the Wantagh Fire Department,and the petitioner had not consulted, or submitted any written comments from, that entity; (6) thepetitioner had not submitted any certification from an independent testing laboratory stating thatthe proposed flood doors are capable of serving the function for which they were designed; (7)the proposed flood doors are not automatic and would have to be closed manually; (8) closing theproposed flood doors requires a number of steps, including removing the protective shrouds thatconceal the doors, opening the trench covers, manually sliding the doors across the trench, andinflating the seals; (9) the petitioner needed trained personnel to operate the proposed flooddoors; (10) the petitioner needed trained personnel to clean and maintain the doors because theycould easily become damaged or clogged with debris while they were open for deliveries fromthe loading docks; frequent inspections and maintenance were critical to the proper operation ofthe doors; (11) it would be difficult or impossible to obtain replacement parts if Presray, whichwas the exclusive manufacturer, went out of business or stopped making this type of door at anytime during the anticipated life of the building; (12) the inflatable seals would be designed tooperate primarily with compressed air, with nitrogen backup; however in an emergency, LIPA,the local power company, would shut down the power and, thus, the primary means of inflatingthe seals might not be available; (13) Presray was located in Pawling, which was about 1½hours away from Jones Beach; therefore, it would not be able to provide "on site remediation" incase of an emergency because, during the type of storm warning in which the doors are mostlikely to be used, all of Jones Beach would be subject to mandatory evacuation and it is unlikelythat a private concern such as Presray would be permitted access to the site; (14) a trained personwould need about 15 minutes to close the proposed doors and it would take longer if there wasno trained person at the site or if the doors did not operate properly; (15) the equipment thatwould be located in the proposed basement would include, but not be limited to, electric meters,disconnect switches and circuit breakers, elevator hydraulic pumps and reservoirs, refrigerationequipment, and generators; if the flood doors failed to operate properly during a flood event, thelocation of such equipment in the basement would give rise to unsafe conditions; and (16) thepetitioner had not met its burden of proving that granting the variance [*8]would not substantially adversely affect the provisions for health,safety, and security; insufficient evidence was presented to the Board to warrant a variance; andthe proposed alternatives do not ensure safety and public welfare.
Pursuant to CPLR 7803 (3), the relevant inquiry in this case is "whether a determination wasmade in violation of lawful procedure, was affected by an error of law or was arbitrary andcapricious or an abuse of discretion." As a general rule, an action is deemed to be arbitrary if it istaken without a sound basis in reason and generally without regard to the facts (see Matter ofPell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222, 231 [1974]).
It is well established that the scope of judicial review of an administrative determination islimited to whether there was a rational basis for the determination or whether it was arbitrary andcapricious (see Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]). As theCourt of Appeals explained in Matter of Jennings v New York State Off. of MentalHealth (90 NY2d 227, 239 [1997]), the reviewing court may not substitute its judgment forthat of the agency responsible for making the determination, and the existence of alternativerational conclusions does not warrant the annulment of the agency's determination. Further, asexplained in Matter of Consolidated Edison Co. of N.Y. v New York State Div. of HumanRights (77 NY2d 411, 417 [1991]), although a contrary decision may be reasonable andsustainable, the reviewing court may not substitute its judgment for that of the administrativeagency (see also Matter of Cowan v Kern, 41 NY2d 591, 599 [1977] [the judicialresponsibility is to review the agency's decisions, but not, absent proof of arbitrary andunreasonable action, to make them]; Matter of Stork Rest. v Boland, 282 NY 256, 267[1940] [courts may not reject the choice made by the administrative agency where the evidence isconflicting and room for choice exists]).
It is equally well settled that where the interpretation of a statute or its application involvesthe "knowledge and understanding of underlying operational practices or entails an evaluation offactual data and inferences to be drawn therefrom," the courts regularly defer to the governmentagency responsible for administering the statute (Kurcsics v Merchants Mut. Ins. Co., 49NY2d 451, 459 [1980]). "In instances where special knowledge of factual data or operationalpractices are necessary for interpreting the relevant statute or regulation, the agency's specialexpertise is entitled to deference and, if not irrational or unreasonable, the interpretation andconstruction given statutes by the body responsible for their administration should be upheld" (Matter of Pro Home Bldrs., Inc. vGreenfield, 67 AD3d 803, 805 [2009] [internal quotation marks omitted]). Thus, theagency's construction of the statute is entitled to deference and, if its interpretation is notirrational or unreasonable, it will be upheld (see Matter of Howard v Wyman, 28 NY2d434, 438 [1971]).
The Board's findings were rationally based on the technical requirements set forth in theBuilding Code and ASCE 24-98. For instance, Building Code § 1003.3.1 requires that allegress doors must be side-hinged swinging doors unless one of the stated exceptions applies, andhorizontal sliding doors are only permitted if they comply with eight criteria, including, inter alia,that: (1) they must be power-operated and can be operated manually in the event of a powerfailure; and (2) they can be opened by a simple method from both sides without any specialknowledge or effort. Based upon the evidence presented at the hearing, it was rational for theBoard to find that the proposed horizontal sliding doors do not provide an equally safe alternativeto those criteria. The Board reasonably concluded that there was insufficient proof in the recordthat the flood doors designed by Presray would operate properly and function to keep water outof the basement in the event of a flood brought on by a catastrophic weather event.
Additionally, the proposed horizontal sliding doors were not in compliance with the BuildingCode's requirement that power-operated horizontal sliding doors be operated quickly and by asimple method. The proposed doors, which are manually operated, require an individual withtraining just to close the doors, a procedure which can take up to 15 minutes. The alternative planproposed by the petitioner required the specially trained individual to be on premises constantlyin order to close the proposed flood doors in the event of an emergency. The Board hadreasonable doubts about food service employees operating the doors in the event a trainedsecurity officer was absent during an emergency.[*9]
As also specified by the Board in finding No. 6, there wasno proffered testimony by any independent expert as to the capability of the flood doorsoperating under storm conditions. The Board's conclusions highlighted its concerns that theviability of the doors was premised only upon the testimony of Jason Smith, the President ofPresray, who will sustain a substantial economic benefit from the purchase of doorsmanufactured and designed by his company.
Thus, in assessing the evidence presented by the petitioner, the Board reasonably noted thatthe petitioner failed to present testimony or evidence from an independent expert as to theviability of Presray's flood doors in this designated coastal high hazard area, thereby making aninsufficient showing to support the variance. The Board's concerns about the ability of the doorsto function properly had a rational basis, that being the health, safety, and security of the 30 to 35individuals whom the petitioner expects to be working in that basement area. Although themajority states that the flood doors have been commissioned for use in other types of facilities,the safety standards in other facilities are not necessarily the same standards as those mandatedby the Building Code for a building in this coastal high hazard area.
The Board had reasonable concerns as to the safety and security of persons working in thebasement if the flood doors did not operate properly, or the electrical equipment in the basementwere to create a dangerous condition during a flood or fire. The Board's concerns, as enumeratedabove, were rationally based upon the lack of evidence proffered at the hearing. The petitioner'switnesses did not present sufficient evidence to overcome the Board's concerns.
The Supreme Court relied on the facts that Nassau County had an emergency evacuation planand that the Wantagh Fire Department normally provided services at Jones Beach. The SupremeCourt stated that, "at the very least, concern for life of those in the basement seems irrelevant as astorm of that magnitude would have caused an evacuation of Jones Beach immediately and therewas no testimony to support a supposition that it would not." The Supreme Court disregarded theinherent uncertainty of predicting the likelihood and severity of a sudden catastrophic storm thatcould wash out roads and access to the basement. This reasoning would allow the local county'semergency procedures to replace ASCE 24-98, which provides the specifications for designingbuildings that can protect human life in the event of a flood.
The Board's determination was not arbitrary and capricious, and was based upon rationalfindings. The Building Code is clear that basements constructed in flood zones should not beutilized for employee work areas. The alternatives proposed by the petitioner contravene thepurposes of the Building Code and raised reasonable and rational concerns. The Supreme Courtimproperly substituted its judgment for that of the Board, whose members included an architect,a businessman, a fire prevention expert, and a Building Code expert. The Supreme Court failedto give the proper weight and deference to the Board's determination, which involved factualevaluations that required highly technical and specialized expertise. The Board reasonably deniedthe variance, as the presentation made by the petitioner was deficient in showing that thealternative plans were sufficient to protect the safety of the occupants. Although the majoritystates that the petitioner's proffer was unopposed, that does not excuse the fact that a sufficientshowing must be made by the petitioner, who bears the burden of proof (see 19 NYCRR1205.4 [b]).
There is no evidence in the record that the Board acted in a manner that was arbitrary,unreasonable, irrational, or indicative of bad faith. Moreover, there is no evidence that theBoard's determination was based on any impermissible considerations such as public opinion orcommunity pressure (see Matter of Wal-Mart Stores v Planning Bd. of Town of N. Elba,238 AD2d 93 [1998]). The Board's determination was not capricious or speculative, and wasfounded on a rational analysis of the highly technical engineering requirements of the BuildingCode. Under these circumstances, the Supreme Court should not have disturbed the Board'sdetermination to deny the petitioner's application for a variance from the relevant provisions ofthe Building Code.
Motion by the petitioner/plaintiff-respondent on an appeal from a judgment of the SupremeCourt, Nassau County, dated December 1, 2008, inter alia, to strike two exhibits to the brief ofthe respondents/defendants-appellants and any references to those exhibits on the ground thatthey contain or refer to matter dehors the record. By decision and order on motion datedNovember 16, 2009, that branch of the motion was held in abeyance and referred to the panel ofJustices hearing the appeal for a determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the branch of the motion which was to strike two exhibits to the brief of therespondents/defendants-appellants and any references to those exhibits on the ground that theycontain or refer to matter dehors the record, is granted, and the subject exhibits and any referencethereto in the appellants' brief have not been considered in the determination of the appeal.
Appellate review is limited to the record that was made in the Supreme Court and, absentmatters that may be judicially noticed, new facts may not be introduced at the appellate level(see Bindler v Brown, 133 AD2d 602, 603 [1987]). In this case, neither of the profferedexhibits warrants judicial notice (see Tippetts-Abbett-McCarthy-Stratton v New York StateThruway Auth., 15 AD2d 598 [1961]; cf. Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445[2005]). Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.