| Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. ofAppeals |
| 2012 NY Slip Op 03840 [95 AD3d 1118] |
| May 15, 2012 |
| Appellate Division, Second Department |
| In the Matter of Kabro Associates, LLC,Appellant, v Town of Islip Zoning Board of Appeals,Respondents. |
—[*1] Alicia S. O'Connor, Town Attorney, Islip, N.Y. (Lisa A. Azzato of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town of IslipZoning Board of Appeals dated May 11, 2010, which, after a hearing, denied the petitioner'sapplication for a special exception permit, the petitioner appeals from a judgment of the SupremeCourt, Suffolk County (Rebolini, J.), dated February 25, 2011, 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 is annulled, and the matter is remitted to the Town of IslipZoning Board of Appeals for the purpose of issuing the special exception permit requested by thepetitioner, subject to any conditions or restrictions as may be appropriate.
The petitioner, Kabro Associates, LLC, owns certain real property on the south side ofMontauk Highway in West Islip. The property, which is approximately 586 feet wide, and isdesignated on the relevant zoning map as one lot, is improved with a strip shopping center and afree-standing pharmacy. The front portion of the lot, which is 125 feet deep and fronts onMontauk Highway, is zoned as a Business 1 District, whereas the rear portion of the lot, which is75 feet deep, is zoned as a Residence A District. Pursuant to conditions imposed by the Town ofIslip Planning Board for the petitioner to obtain a Planning Board Special Permit for a restauranton the property, the petitioner was required to apply to the Town of Islip Zoning Board ofAppeals (hereinafter the ZBA) for a special exception permit allowing it to extend its off-streetparking into the portion of the lot situated within the more restrictive residential zoning districtand to enlarge the floor space of an existing building or buildings by 3,000 square feet. Thepetitioner submitted its application to the ZBA, which held a public hearing on the application.At the hearing, the petitioner presented the testimony of a traffic engineer and a real estateappraiser, both of whom were qualified as experts by the ZBA. The petitioner's expertsconcluded that the proposed changes would not adversely affect the surrounding properties byexacerbating traffic conditions or decreasing property values. Owners of neighboring properties,however, objected at the hearing, claiming, among other things, [*2]that the proposed changes would exacerbate existing trafficcongestion and adversely affect the value of their properties. Following the public hearing, andafter accepting additional written submissions, the ZBA denied the petitioner's application. TheZBA relied on, among other things, its concerns about traffic, property values, and the suitabilityof the plan to the location. The petitioner commenced this proceeding pursuant to CPLR article78, seeking a judgment annulling the ZBA's determination and directing the ZBA to approve theapplication for a special exception permit. The Supreme Court denied the petition and dismissedthe proceeding. The petitioner appeals, and we reverse.
" '[I]n a proceeding pursuant to CPLR article 78 to review a determination of a zoning boardof appeals, a zoning board's interpretation of its zoning ordinance is entitled to great deference,and judicial review is generally limited to ascertaining whether the action was illegal, arbitraryand capricious, or an abuse of discretion' " (Matter of East Hampton Indoor Tennis Club, LLC v Zoning Bd. of Appealsof Town of E. Hampton, 83 AD3d 935, 937 [2011], quoting Matter of Brancato v Zoning Bd. ofAppeals of City of Yonkers, N.Y., 30 AD3d 515, 515 [2006]; see Matter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98NY2d 304, 308 [2002]). "In applying the arbitrary and capricious standard, a court inquireswhether the determination under review had a rational basis. Under this standard, a determinationshould not be disturbed unless the record shows that the agency's action was arbitrary,unreasonable, irrational or indicative of bad faith" (Matter of Rendely v Town of Huntington, 44 AD3d 864, 865[2007] [internal quotation marks omitted]; see Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770[2005]). "[A] determination will not be deemed rational if it rests entirely on subjectiveconsiderations, such as general community opposition, and lacks an objective factual basis" (Matter of Cacsire v City of White PlainsZoning Bd. of Appeals, 87 AD3d 1135, 1137 [2011]; see Matter of Halperin v Cityof New Rochelle, 24 AD3d at 772; see also Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town ofGreenburgh, 68 AD3d 62, 76 [2009]).
"Unlike a use variance, a 'special exception allows the property owner to put his property to ause expressly permitted by the ordinance . . . subject only to "conditions" attachedto its use to minimize its impact on the surrounding area' " (Matter of Capriola v Wright, 73 AD3d 1043, 1045 [2010], quotingMatter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30NY2d 238, 243-244 [1972]; see Matterof Navaretta v Town of Oyster Bay, 72 AD3d 823, 825 [2010]). "The significance ofthis distinction is that the 'inclusion of the permitted use in the ordinance is tantamount to alegislative finding that the permitted use is in harmony with the general zoning plan and will notadversely affect the neighborhood' " (Matter of Retail Prop. Trust v Board of Zoning Appealsof Town of Hempstead, 98 NY2d 190, 195 [2002], quoting Matter of North Shore SteakHouse v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d at 243). "Thus, the burden ofproof on an owner seeking a special exception is lighter than that on an owner seeking avariance" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town ofHempstead, 98 NY2d at 195). An owner seeking a special exception permit is only "requiredto show compliance with any legislatively imposed conditions on an otherwise permitted use"(id.).
Here, the ZBA's conclusion that the proposed development would fail to comply with theapplicable legislatively imposed conditions (see Code of Town of Islip §§68-416, 68-417), and its concomitant determination to deny the petitioner's application, wasarbitrary and capricious. The neighboring property owners claimed that the granting of thespecial exception permit would, among other things, exacerbate existing traffic congestion anddecrease the value of their properties. However, these claims were uncorroborated by empiricaldata, and were contradicted by the expert testimony offered by the petitioner, as well as theopinion of the Town of Islip Department of Planning and Development. Accordingly, the ZBA'sdetermination to deny the petitioner's application lacked a rational basis, and the Supreme Courtshould have granted the petition. Thus, we remit the matter to the ZBA for the purpose of issuingthe special exception permit, subject to any conditions or restrictions as may be appropriate.
In light of our determination, we need not reach the petitioner's remaining contention. Skelos,J.P., Dickerson, Eng and Leventhal, JJ., concur.