| Matter of Goldberg v Zoning Bd. of Appeals of City of Long Beach |
| 2010 NY Slip Op 09265 [79 AD3d 874] |
| December 14, 2010 |
| Appellate Division, Second Department |
| In the Matter of Lenore Goldberg et al., Respondents, v ZoningBoard of Appeals of City of Long Beach et al., Appellants. |
—[*1] Kelly & Labeck, P.C., Long Beach, N.Y. (Denis G. Kelly of counsel), for appellant Janet Slavin. Walter Belling, Long Beach, N.Y., for respondents.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the City of Long Beach dated June 1, 2009, which, after a hearing, granted theapplication of Janet Slavin for several variances and action for a judgment declaring that construction ofthe structure authorized by the granting of the application would interfere with the use of a commoneasement for ingress and egress, the Zoning Board of Appeals of the City of Long Beach and the Cityof Long Beach appeal, and Janet Slavin separately appeals (1), as limited by their respective briefs,from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated August 19,2009, as granted that branch of the motion of the petitioners/plaintiffs which was for a preliminaryinjunction enjoining Janet Slavin from commencing work on the authorized structure, and (2), ajudgment of the same court entered December 1, 2009, which granted the petition, annulled thedetermination, denied the variances, and dismissed the declaratory judgment action as academic.
Ordered that the appeals from the order dated August 19, 2009, are dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the petition is denied, the determination isconfirmed, the proceeding is dismissed on the merits, the motion for a preliminary injunction is denied,and the order dated August 19, 2009, is modified accordingly; and it is further,
Ordered that the matter is remitted to the Supreme Court, Nassau County, for the entry of ajudgment, inter alia, declaring that the construction of the subject structure, as proposed and approved,would not interfere with the use of the common easement for ingress and egress; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately and filing separatebriefs.[*2]
The appeals from the order dated August 19, 2009, must bedismissed because no appeal lies as of right from an intermediate order in a proceeding pursuant toCPLR article 78 (see CPLR 5701 [b] [1]), and we decline to grant leave in view of the factthat a final judgment has been entered.
Janet Slavin is the owner of a single-story oceanfront bungalow located on a landlocked lot in theWest End neighborhood of Long Beach. When originally constructed, Slavin's bungalow was one of 10single-story bungalows built, in two rows divided by a common walkway, on a parcel of propertydirectly north of the beach, between Illinois Avenue and Ohio Avenue. In the 1930's, the fivebungalows lying closest to the shore, those on the southern half of the common walkway, weredestroyed by a hurricane. Years later, the owner of the parcel split the land into five separate lots, eachmeasuring approximately 90 feet by 20 feet and each bisected by the common walkway. Before thelots were sold, the original owner recorded an easement that made the common walkway a legal rightof way for ingress and egress to both Ohio Avenue and Illinois Avenue.
After Slavin purchased the middle of the five lots, Anna DeSanctis and Frank DeSanctis, who hadpreviously purchased the two lots to the east of Slavin's lot, obtained variances to build a largetwo-story house on their double lot. Later, Lenore Goldberg, who owned the two lots directly to thewest of Slavin's lot, demolished her bungalow and constructed a new home, to the maximum allowabledimensions of the building code, on her double lot. Both the DeSanctis residence and the Goldbergresidence were built entirely on the north side of the common walkway.
By application to the Zoning Board of Appeals for the City of Long Beach (hereinafter the Board),Slavin sought variances which would permit her to reconstruct the first floor of her bungalow andconstruct a second-story addition. As proposed, the first story would be built on the footprint of theexisting bungalow and would remain entirely on the north side of the common walkway. Thesecond-story addition, which would be supported by posts and built approximately 12 feet above thecommon walkway, would extend beyond the first story, bridging the common walkway and extendingonto the southern half of the property. The walkway would maintain its original location and dimensionsand would be illuminated by light fixtures controlled by motion sensors. The proposed structure wouldnot violate the setback requirements for the oceanfront portion of the property, but area variances wererequired because, among other things, the structure would exceed the total maximum building areapermitted.
After a hearing, and upon review of submissions from Slavin and from those opposed to theproject, the Board granted the variances, finding that the detriment to the health, safety, and welfare ofthe community did not outweigh the benefit to the applicant. The petitioners, Goldberg and theDeSanctises, then commenced the instant hybrid proceeding pursuant to CPLR article 78 and actionfor a declaratory judgment, contending that the Board's determination was arbitrary and capricious,and, alternatively, seeking a declaration that the structure, as proposed, would interfere with their use ofthe common easement for ingress and egress. The petitioners moved for a preliminary injunctionenjoining the commencement of work on the project and, at the same time, requested a "final judgment"on the hybrid proceeding and action. The Supreme Court, in an order dated August 19, 2009, granteda preliminary injunction but denied that branch of the motion that sought a final determination, statingthat the motion could be renewed upon the submission of all necessary papers. Thereafter, in ajudgment entered December 1, 2009, the Supreme Court granted the petition, annulled the Board'sdetermination as arbitrary and capricious, denied Slavin's application for variances, and dismissed thedeclaratory judgment action as academic. The City of Long Beach and the Board appeal, and Slavinseparately appeals, from both the order and the judgment.
"Local zoning boards have broad discretion in considering applications for area variances" (Matter of Caspian Realty, Inc. v Zoning Bd. ofAppeals of Town of Greenburgh, 68 AD3d 62, 67 [2009]; see Matter of Pecoraro v Board of Appeals ofTown of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Gjerlow v Graap, 43 AD3d 1165, 1167 [2007]; Matter of Halperin v City of New Rochelle,24 AD3d 768, 771 [2005]). In reviewing an application for a variance, a zoning board is requiredto engage in a balancing test "weigh[ing] the benefit of the grant to the applicant against the detriment tothe health, safety and welfare of the neighborhood or community if the variance is granted" (Matterof Pecoraro [*3]v Board of Appeals of Town of Hempstead, 2NY3d at 612; see Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]; Matter of Crilly v Karl, 67 AD3d 793[2009]; Matter of Halperin v City of New Rochelle, 24 AD3d at 773; Town Law §267-b [3]; General City Law § 81-b [4] [b]). The judicial function in reviewing suchdeterminations is limited and a reviewing court should refrain from substituting its own judgment for thejudgment of the zoning board (see Matter of Pecoraro v Board of Appeals of Town ofHempstead, 2 NY3d at 613; Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]; Matter of Rivero v Ferraro, 23 AD3d479 [2005]; Matter of Efraim vTrotta, 17 AD3d 463 [2005]). "Courts may set aside a zoning board determination onlywhere the record reveals that the board acted illegally or arbitrarily, or abused its discretion"(Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613; seeMatter of Gjerlow v Graap, 43 AD3d at 1167; Matter of Halperin v City of NewRochelle, 24 AD3d at 772).
In the instant case, contrary to the Supreme Court's conclusion, the Board's determination grantingthe variances was not arbitrary and capricious, and it should have been sustained upon judicial review.After the Board conducted an extensive hearing, considered renderings of the proposal and aerialphotographs of the surrounding community, and reviewed area variances previously granted in theneighborhood, it rationally concluded that the proposal would not affect the character of theneighborhood, that the requested variances were not substantial, that the desired benefit could not beachieved by any other method, and that the structure would not have an adverse impact on the physicalor environmental conditions in the neighborhood (see Matter of Pecoraro v Board of Appeals ofTown of Hempstead, 2 NY3d at 612-613). In sum, the Board properly weighed the benefit to theapplicant against any potential detriments to the health, safety, and welfare of the community and madea rational determination that was supported by the record (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d at 612-613; Matter of Halperin v City of NewRochelle, 24 AD3d at 772; Town Law § 267-b [3]; General City Law § 81-b [4][b]).
Moreover, the Supreme Court should have declared that the second-story addition, as proposed,would not interfere with the petitioners/plaintiffs' use of the common easement for ingress and egress.Express easements are governed by the intent of the parties (see Lewis v Young, 92 NY2d443, 449 [1998]; Guzzone v Brandariz,57 AD3d 481 [2008]; Estate Ct., LLCv Schnall, 49 AD3d 1076, 1077 [2008]). "As a rule, where the intention in granting aneasement is to afford only a right of ingress and egress, it is the right of passage, and not any right in aphysical passageway itself, that is granted to the easement holder" (Lewis v Young, 92 NY2dat 449). Indeed, an owner of land that is burdened by an express easement for ingress and egress "maynarrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is notimpaired" (Lewis v Young, 92 NY2d at 449; see Guzzone v Brandariz, 57 AD3d at482; Sambrook v Sierocki, 53 AD3d817 [2008]).
In the instant case, the easement specifically granted the petitioners/plaintiffs the right of ingress andegress over the common walkway. Although the petitioners/plaintiffs contend that the addition wouldimpede their ability to use the common walkway to gain access to their respective properties because itwould create a "dark and frightening" "alleyway," they failed to submit any evidence supporting thiscontention. In fact, the record demonstrates that the addition, as proposed and approved, would notimpair the petitioners'/plaintiffs' use of the common walkway for ingress and egress, as it would be builtapproximately 12 feet above the common walkway, that neither the dimensions nor location of thewalkway would be altered, and that the walkway would be illuminated by lighting fixtures controlled bymotion sensors (see Sambrook v Sierocki, 53 AD3d at 818; see also Guzzone vBrandariz, 57 AD3d at 482-483).
The respondents/defendants' remaining contentions are without merit. Prudenti, P.J., Covello,Florio and Belen, JJ., concur.