| Matter of Kearney v Village of Cold Spring Zoning Bd. ofAppeals |
| 2011 NY Slip Op 02881 [83 AD3d 711] |
| April 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Brian Kearney et al.,Respondents, v Village of Cold Spring Zoning Board of Appeals,Appellant. |
—[*1] Silverberg Zalantis LLP, Tarrytown, N.Y. (Katherine Zalantis and Steven M. Silverberg ofcounsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Village of ColdSpring Zoning Board of Appeals dated September 10, 2009, which, after a hearing, denied thepetitioners' application for area variances, the appeal is from (1) an order of the Supreme Court,Putnam County (O'Rourke, J.), dated December 7, 2009, which granted the petition, and (2), ajudgment of the same court dated December 21, 2009, which granted the petition, annulled thedetermination, and directed the Village of Cold Spring Zoning Board of Appeals to issue therequested variances and to issue findings that the subject property was exempt from certainzoning requirements.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the order is vacated, the petition is denied,and the proceeding is dismissed on the merits; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The appeal from the order must be dismissed, as no appeal lies as of right from aninterlocutory order entered in a proceeding pursuant to a CPLR article 78 proceeding (seeCPLR 5701 [b] [1]), and we decline to grant leave to appeal in view of the fact that a finaljudgment has been entered. The issues raised on the appeal from the order are brought up forreview and have been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
The petitioners are the owners of an approximately 10,000-square-foot parcel of real propertyin the Village of Cold Spring, Putnam County. The property is included in an industrial zoning or"I-1" district. While residential development is permitted within an I-1 district, the Villagezoning code requires a minimum lot area of 40,000 square feet for such development.
In July 2007 the petitioners sought a permit to build a single-family residence on the subjectproperty. That permit application was denied by the Building Inspector. The petitioners then[*2]submitted an application to the Village of Cold Spring ZoningBoard of Appeals (hereinafter the ZBA), seeking variances from the dimensional requirements ofthe I-1 district. The ZBA denied the petitioners' application for variances.
The petitioners subsequently commenced this proceeding pursuant to CPLR article 78challenging the ZBA's determination. The Supreme Court concluded that the I-1 district'sdimensional requirements did not apply to the subject lot, under a certain exception in the Villagezoning code referred to by the parties and the court as the "small lot exception" (see ColdSpring Village Code § 134-17 [E]). The Supreme Court also found that the ZBA's decisionto deny the variances was arbitrary and capricious. Accordingly, the Supreme Court granted thepetition, annulled the ZBA's determination, and directed the ZBA to issue a finding that the"small lot exception" applies to the subject property and to grant the requested variances. TheZBA appeals.
The Supreme Court erred in considering the petitioners' claim that their property was exempt,under the "small lot exception" to the zoning code, from the dimensional requirements prescribedby the zoning code for residential development in I-1 districts. A petitioner may not raise newclaims in a proceeding pursuant to CPLR article 78 that were not raised at the administrativelevel (see Matter of Klapak v Blum, 65 NY2d 670, 672 [1985]; Matter of Emrey Props., Inc. vBaranello, 76 AD3d 1064, 1067 [2010]; Matter of Trident Realty v Planning Bd. ofInc. Vil. of E. Hampton, Suffolk County, 248 AD2d 545 [1998]). Further, "[j]udicial reviewof an administrative determination is limited to the grounds invoked by the agency in making itsdecision" (Matter of Filipowski vZoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831, 832 [2010]; seeMatter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758[1991]). Here, while the petitioners communicated their opinion to the ZBA that they did notrequire variances because their property was exempt from the I-1 district's dimensionalrequirements under the "small lot exception," they expressly advised the ZBA at the publichearing held on February 19, 2009, that they were "not asserting in the context of this proceedinghere that [they were] entitled to apply the small lot exception," but, rather, were merely seekingvariances. Consequently, the ZBA's findings and decision were limited to the question of whetherthe petitioners were entitled to variances, and did not address the question of whether theproperty was exempt from the I-1 district dimensional requirements. Accordingly, the petitioners'claim that their property was so exempt is "precluded from judicial review" (Matter of EmreyProps., Inc. v Baranello, 76 AD3d at 1067 [internal quotation marks omitted]; see Matterof Klapak v Blum, 65 NY2d at 672; Matter of Trident Realty v Planning Bd. of Inc. Vil.of E. Hampton, Suffolk County, 248 AD2d 545 [1998]).
The Supreme Court further erred in determining that the ZBA's denial of the requestedvariances was arbitrary and capricious. Local zoning boards have "broad discretion inconsidering applications for area variances" (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d608, 613 [2004]). "The judicial function in reviewing such determinations is limited and areviewing court should refrain from substituting its own judgment for the judgment of the zoningboard" (Matter of Goldberg v ZoningBd. of Appeals of City of Long Beach, 79 AD3d 874, 877 [2010]; see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613). Thus, "[c]ourts mayset aside a zoning board determination only where the record reveals that the board acted illegallyor arbitrarily, or abused its discretion" (Matter of Pecoraro v Board of Appeals of Town ofHempstead, 2 NY3d at 613; see Matter of Goldberg v Zoning Bd. of Appeals of City ofLong Beach, 79 AD3d at 877).
Here, the ZBA had a rational basis for denying the variances. The requested variances, whichwould allow the construction of a single-family home on a lot one-quarter the size of thatrequired by the zoning code, were substantial, and the petitioners' difficulty was self-created, asthey were aware of the zoning code's restrictions before taking title to the property (seeVillage Law § 7-712-b [3] [b] [3], [5]; Matter of Pietrzak & Pfau Assoc., LLC v Zoning Bd. of Appeals of Townof Wallkill, 34 AD3d 818 [2006]). Further, the ZBA " 'was entitled to consider theeffect its decision would have as precedent' " (Matter of Genser v Board of Zoning & Appeals of Town of N.Hempstead, 65 AD3d 1144, 1147 [2009], quoting Matter of Gallo v Rosell, 52 AD3d 514, 516 [2008]; see Matterof Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 615; Matter of Kaiser v Town of Islip ZoningBd. of Appeals, 74 AD3d 1203 [2010]). In this respect, the ZBA rationally concludedthat granting the [*3]variances could set a negative precedentwithin the neighborhood, and serve as a catalyst for like applications on similarly situated lots,thereby effectively negating the status of the industrial zoning district.
Accordingly, the petition should have been denied and the proceeding dismissed on themerits.
The parties' remaining contentions need not be addressed in light of our determination.Skelos, J.P., Eng, Austin and Cohen, JJ., concur.