| Matter of Cacsire v City of White Plains Zoning Bd. ofAppeals |
| 2011 NY Slip Op 06838 [87 AD3d 1135] |
| September 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Nestor Cacsire et al., Appellants, v City ofWhite Plains Zoning Board of Appeals, Respondent. |
—[*1] John G. Callahan, White Plains, N.Y. (Doreen Lusita-Rich of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the City of WhitePlains Zoning Board of Appeals dated February 2, 2010, which, after a hearing, denied thepetitioners' application for area variances, the petitioners appeal from a judgment of the SupremeCourt, Westchester County (Lorenzo, J.), entered June 3, 2010, which denied the petition anddismissed the proceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is granted, the determination of the City of White Plains Zoning Board of Appeals datedFebruary 2, 2010, is annulled, and the matter is remitted to the City of White Plains ZoningBoard of Appeals for the issuance of the requested variances.
In 1993, the petitioners, Nestor Cacsire and Justina Chuquitaype, bought real property in theCity of White Plains that included a house that was being used as a two-family residence at thetime of purchase. The house was built in about 1904 and was located in a residentialneighborhood zoned for one- and two-family houses. The petitioners intended to use the propertyas an investment by renting the two apartments in the house. In the real estate listings, the housewas referred to as a two-family dwelling, and it was similarly described on the petitioners'residential contract of sale. Moreover, the issuance of a mortgage to the petitioners wasconditioned upon the property's use as a legal two-family dwelling.
The petitioners hired an attorney to handle the real estate transaction. The title reportincluded a certificate of occupancy search wherein the City's Department of Buildings(hereinafter the DOB) advised that no certificate of occupancy had been issued for the house,which was built prior to the 1927 enactment of the certificate of occupancy regulations. Thecertificate of occupancy search also revealed that the property was classified by the City for taxpurposes as a two-family dwelling. Based on the title report and the property's tax classification,the petitioners, their real estate attorney, and their mortgagee believed that the property was alegal two-family dwelling in a neighborhood that was zoned for one- and two-family residences.[*2]
In 2002, after renting the property out as a two-familyhouse and paying taxes on it as such for approximately nine years, the petitioners applied to theDOB for permits to renovate the upstairs kitchen, which they received. The project cost thepetitioners approximately $10,000. Upon completion of the renovation, however, the DOBrefused to issue certificates of completion for the work, informing the petitioners, for the firsttime, that there was a "non-consistency with [its] records in regards to the classification of theproperty." The DOB informed the petitioners that if they "desire[d] a two-family occupancy, adesign and application for change of use ha[d] to be approved including a zoning variance."Thus, unless the petitioners obtained six area variances required for the property's legal use as atwo-family dwelling, the second floor apartment had to be removed and the premises convertedback into a one-family dwelling.
The petitioners applied for the requisite six area variances, but the City of White PlainsZoning Board of Appeals (hereinafter the ZBA) denied the petitioners' application, finding, interalia, that the proposed variances were substantial, would produce an undesirable change in thecharacter of the neighborhood, would result in a detriment to the health, safety, and generalwelfare of the community, and that the petitioner's hardship was self-created. The petitionersthereafter commenced this CPLR article 78 proceeding, contending that the ZBA's determinationto deny their application for the area variances lacked a rational basis, and was arbitrary andcapricious. The Supreme Court denied the petition and dismissed the proceeding. We reverse.
Local zoning boards have broad discretion in considering applications for variances, andjudicial review is limited to determining whether the action taken by the board was illegal,arbitrary, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308[2002]; Matter of Halperin v City ofNew Rochelle, 24 AD3d 768, 771 [2005]). Thus, the determination of a zoning boardshould be sustained upon judicial review if it is not illegal, has a rational basis, and is notarbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 385 [1995])."Conclusory findings of fact are insufficient to support a determination by a zoning board ofappeals, which is required to clearly set forth 'how' and 'in what manner' the granting of avariance would be improper" (Matter ofGabrielle Realty Corp. v Board of Zoning Appeals of Vil. of Freeport, 24 AD3d 550,550 [2005] [some internal quotation marks omitted], quoting Matter of Farrell v Board ofZoning & Appeals of Inc. Vil. of Old Westbury, 77 AD2d 875, 876 [1980]). Likewise, adetermination will not be deemed rational if it rests entirely on subjective considerations, such asgeneral community opposition, and lacks an objective factual basis (see Matter of Halperin vCity of New Rochelle, 24 AD3d at 772). Courts may set aside a zoning board determinationwhere the record reveals that the "board acted illegally or arbitrarily, or abused its discretion, orthat it merely succumbed to generalized community pressure" (Matter of Pecoraro v Board of Appeals ofTown of Hempstead, 2 NY3d 608, 613 [2004]).
Pursuant to Town Law § 267-b (3), which sets forth the same standards as GeneralCity Law § 81-b as enacted by the City of White Plains, when determining whether togrant an application for an area variance, a zoning board must weigh the benefit to the applicantagainst the detriment to the health, safety, and welfare of the neighborhood or community if thevariance is granted (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2NY3d at 612). This inquiry also includes a consideration of whether (1) granting the areavariance will produce an undesirable change in the character of the neighborhood or a detrimentto nearby properties; (2) the benefit sought by the applicant can be achieved by some method,feasible to the applicant, other than an area variance; (3) the requested area variance issubstantial; (4) granting the proposed variance will have an adverse effect or impact on thephysical or environmental conditions in the neighborhood or district; and (5) the allegeddifficulty was self-created (see Town Law § 267-b [3] [b]; General City Law§ 81-b [4] [b]; Matter of Sasso v Osgood, 86 NY2d at 382; Matter of Merlotto v Town of PattersonZoning Bd. of Appeals, 43 AD3d 926, 928-929 [2007]).
Here, although the ZBA rationally concluded that the requested variances were substantial,there was no evidence before the ZBA to show that the granting of the variances would have anundesirable effect on the character of the neighborhood, adversely impact physical andenvironmental conditions, or otherwise result in a detriment to the health, safety, and welfare ofthe neighborhood or community (seeMatter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d545, 547 [2007]; Matter of BeyondBldrs. Inc. v Pigott, 20 AD3d 474, 475 [2005]). These [*3]determinations by the ZBA were wholly lacking in any evidentiarysupport and lacked a rational basis. To the contrary, the record indicated that the property ownedby the petitioners had been used by its residents and taxed by the City as a two-family dwellingfor over 50 years. The record showed that granting the variances would not result in an increasein congestion, traffic, and population to the neighborhood. In fact, many of the propertiessurrounding the petitioners' property had similar dimensions and physical characteristics andcontained two-family dwellings, and there was no community opposition to the petitioners'application.
Moreover, contrary to the ZBA's determination that the petitioners' hardship was self-created,the record showed that the petitioners reasonably believed that the property was legally beingused as a two-family residence at the time of purchase and, moreover, that they would suffergreat financial hardship if the area variances were not granted. The property was located in anarea zoned for one- and two-family houses, was being taxed by the City as a two-family house,and did not have a certificate of occupancy because the house was built before such certificateswere issued. Based on a review of the record before the ZBA, its determination that thepetitioners' hardship was self-created lacked a rational basis, and was arbitrary and capricious.
In sum, the record does not contain sufficient evidence to support the rationality of the ZBA'sdeterminations denying the proposed area variances (compare Matter of Ifrah v Utschig,98 NY2d at 308; Matter of JSB Enters.,LLC v Wright, 81 AD3d 955, 957 [2011]). Since the ZBA's determination was irrationaland arbitrary and capricious, the Supreme Court should have granted the petition, annulled theZBA's determination, and remitted the matter to the ZBA for the issuance of the variances.Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.