| Matter of Haberman v Zoning Bd. of Appeals of Town of E.Hampton |
| 2011 NY Slip Op 05707 [85 AD3d 1170] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of Perry Haberman, Petitioner, v ZoningBoard of Appeals of Town of East Hampton et al., Respondents. |
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Proceeding pursuant to CPLR article 78 to review a determination of the respondent ZoningBoard of Appeals of the Town of East Hampton dated August 25, 2009, which denied thepetitioner's application to revoke a certificate of occupancy issued to the respondents Ian Sacksand Wendy Sacks.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, without costs or disbursements.
The petitioner owns the real property located at 27 Tyler Road in Montauk, Suffolk County.The respondents Ian Sacks and Wendy Sacks (hereinafter together the Sacks respondents) ownthe real property located at 14 Tyler Road. The properties are approximately 50 feet away fromeach other. On September 16, 2008, the Building Inspector of the Town of East Hampton issueda certificate of occupancy to the Sacks respondents for a one-family residence on their property.The petitioner filed an application with the Zoning Board of Appeals of the Town of EastHampton (hereinafter the ZBA), dated November 14, 2008, appealing from the issuance of thecertificate of occupancy, asserting that the subject structure violated several provisions of theTown's zoning code relating to height restrictions, including its so-called Pyramid Law. Insupport of his application, the petitioner submitted an elevation report from engineer Charles H.Weidner. The alleged violations claimed by Weidner ranged from .66 feet to four feet. In adetermination dated August 25, 2009, the ZBA denied the petitioner's application, finding,among other things, that the certificate of occupancy had been properly issued. The petitionerthen commenced this proceeding pursuant to CPLR article 78 to review the ZBA's determination.In an order dated June 3, 2010, the Supreme Court, Suffolk County, transferred the proceeding tothis Court, finding, inter alia, that the petition raised a question of substantial evidence.
Preliminarily, we note that the Supreme Court should not have transferred this proceeding tothis Court pursuant to CPLR 7804 (g), as the petition did not raise a question of substantialevidence (see Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Halperin v City of NewRochelle, 24 AD3d 768, 769-770 [2005]). We nevertheless retain jurisdiction for thepurpose of deciding the case on the merits (see Thurman v Holahan, 123 AD2d 687[1986]).
We further note that, under the circumstances presented here, the petitioner does not lackstanding to maintain this proceeding (see generally Zupa v Paradise Point Assn., Inc., 22AD3d [*2]843 [2005]).
Turning to the merits, "[a]s the proponent of the revocation of the certificate of occupancy,[the petitioner] had the burden at the hearing held before the ZBA to demonstrate that thecertificate of occupancy was improperly issued" (Matter of Hariri v Keller, 34 AD3d 583, 586 [2006]). Adetermination of a zoning board made after a public hearing should be sustained if it has arational basis and is supported by evidence in the record (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2NY3d 608, 613 [2004]; Matter ofRusciano v Ross, 78 AD3d 715, 716 [2010]; Matter of Millennium Custom Homes, Inc. v Young, 58 AD3d 740,741 [2009]). "Courts may set aside a zoning board determination only where the record revealsthat the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbedto generalized community pressure" (Matter of Pecoraro v Board of Appeals of Town ofHempstead, 2 NY3d at 613; see Matter of Ifrah v Utschig, 98 NY2d 304, 308[2002]).
Here, the petitioner failed to meet his burden of demonstrating that the certificate ofoccupancy was improperly issued. We note in particular that the petitioner's expert conceded thatone alleged nonconformity does not, in fact, exceed the structure's permissible height under theTown's Pyramid Law (see Code of Town of East Hampton § 255-11-72 [D]), whenthe relevant distance for comparison is measured from the nearest property line, as that lawexpressly dictates (id.). The petitioner's expert also acknowledged that certainmeasurements taken in connection with at least one other alleged nonconformity may have been"less than accurate." We conclude that, based on the evidence before it, the ZBA's determinationhad a rational basis and was not illegal, arbitrary and capricious, or an abuse of discretion, andwas not the result of the ZBA succumbing to generalized community pressure. Angiolillo, J.P.,Balkin, Dickerson and Cohen, JJ., concur.