| Matter of Witkowich v Zoning Bd. of Appeals of Town ofYorktown |
| 2011 NY Slip Op 04261 [84 AD3d 1101] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of Nicholas Witkowich, Appellant, v ZoningBoard of Appeals of Town of Yorktown et al., Respondents. |
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In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Yorktown dated June 28, 2010, made after a hearing, that a garageproposed to be erected upon the real property of Andrew Sabo was a permitted use accessory to aresidential structure, that erection of the garage according to the plans submitted by Andrew Sabodid not require an area variance, and which affirmed the issuance of a building permit by theTown of Yorktown Building Inspector to Andrew Sabo for the construction of the garage, thepetitioner appeals from a judgment of the Supreme Court, Westchester County (Loehr, J.), datedAugust 19, 2010, which denied the petition and dismissed the proceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is granted, the determination is annulled, and the building permit issued by the Town ofYorktown Building Inspector to Andrew Sabo for the construction of a garage, according to theplans submitted by Andrew Sabo, is vacated.
Andrew Sabo was issued a building permit, in 2009, to construct a large garage on a lotlocated in an R-2 residential zoning district in the Town of Yorktown. The petitioner commencedan administrative proceeding before the Zoning Board of Appeals of the Town of Yorktown(hereinafter the ZBA), inter alia, challenging the issuance of the permit. The ZBA affirmed theissuance of the permit, and determined that the garage, as proposed by Sabo, was a permitted useaccessory to his residence and did not require an area variance. The petitioner instituted thisCPLR article 78 proceeding to review the ZBA's determination.
Judicial review of a determination by a zoning board is generally limited to determiningwhether the action taken by the zoning board was illegal, arbitrary and capricious, or an abuse ofdiscretion (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Genser v Board of Zoning &Appeals [*2]of Town of N. Hempstead, 65 AD3d 1144,1146-1147 [2009]; Matter of Pasceri vGabriele, 29 AD3d 805, 805-806 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770-771[2005]). "Where the determination of a zoning board of appeals is rational" and supported byevidence in the record, "a reviewing court may not substitute its own judgment for that of theboard, even if such a contrary determination is itself supported by the record" (Matter of Rossney v Zoning Bd. of Appealsof the Inc. Vil. of Ossining, 79 AD3d 894, 895 [2010]; see Matter of Metro Enviro Transfer, LLCv Village of Croton-on-Hudson, 5 NY3d 236, 241 [2005]; Matter of Retail Prop.Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196 [2002]).
Here, however, the determination of the ZBA that the proposed garage constituted apermitted "accessory" building, as defined by Town of Yorktown Zoning Ordinance §300-3 [B], is not rationally based. That ordinance defines an "accessory" building as a"subordinate building . . . the use of which is customarily incidental to that of amain building on the same lot."
The record demonstrates that the proposed garage, designed to house at least eight or nineautomobiles, would have nearly twice the square footage of Sabo's residence. In addition, there isinsufficient evidence to support a finding that the use of structures of this size as garages is"customarily incidental" to residential homes in the subject neighborhood. Although a zoningboard may properly rely upon personal knowledge of board members regarding thecharacteristics of a neighborhood (seeMatter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d1068, 1069 [2007]; Matter of NorthShore F.C.P., Inc. v Mammina, 22 AD3d 759, 760 [2005]), here, there is no indicationthat the members of the ZBA relied on evidence of any specific accessory structures in theneighborhood, or as to the dimensions or uses of any such structures. In addition, although Sabosubmitted letters from friends and neighbors asserting that there are several accessory buildingsin the vicinity that are similar to the proposed garage, those letters did not detail the locations ordimensions of those structures. Under these circumstances, the ZBA lacked a rational evidentiarybasis to support its finding that the proposed garage constitutes a permissible accessory building,within the meaning of the subject zoning ordinance. Accordingly, the ZBA's determination wasarbitrary and capricious (see Matter of Porianda v Amelkin, 115 AD2d 650, 650-651[1985]; see also Matter of Presnell v Leslie, 3 NY2d 384, 387-388 [1957]; Matter of J & M Harriman Holding Corp. vZoning Bd. of Appeals of Vil. of Harriman, 62 AD3d 705, 706-707 [2009]).
The ZBA's determination that no area variances were required for the proposed garage wasalso arbitrary and capricious. Pursuant to the subject zoning ordinance, an accessory buildingmust be no more than 15 feet in height (see Town of Yorktown Zoning Ordinance§ 300-21, Appendix A). The relevant zoning ordinance further provides that an accessorybuilding over 15 feet in height must be located 25 feet from the main building on the site (seeTown of Yorktown Zoning Ordinance § 300-14 [B], [C]), and defines the "height" of abuilding with reference to the grade of the property (see Town of Yorktown ZoningOrdinance § 300-3 [B]). The plans submitted by Sabo failed to show the grade of theproperty, and there is no other evidence as to that issue in the record. Consequently, the "height"of the garage, as defined by the zoning ordinance, cannot be determined by the record. Further,the plans also show that the height of the proposed garage, as measured from the base of theproposed structure itself, would be over 15 feet. Since there was no evidence in the record tosupport the ZBA's determination that the garage would be less than 15 feet high under anydefinition, that determination was arbitrary and capricious (see Matter of J & M HarrimanHolding Corp. v Zoning Bd. of Appeals of Vil. of Harriman, 62 AD3d at 706-707; cf.Matter of Hoffmann v Gunther, 245 AD2d 511, 512-513 [1997]), as was the ZBA'sconcomitant determination that Sabo did not require an area variance to construct the garage inaccordance with his plans. Covello, J.P., Eng, Chambers and Miller, JJ., concur.