| Matter of Jonas v Stackler |
| 2012 NY Slip Op 04171 [95 AD3d 1325] |
| May 30, 2012 |
| Appellate Division, Second Department |
| In the Matter of Robert P. Jonas, Jr., Respondent, v WalterStackler et al., Appellants. |
—[*1] Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale, N.Y. (JudyLynn Simoncic of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Village ofCentre Island Board of Zoning Appeals dated December 27, 2010, which, after a hearing, deniedthe petitioner's application for an area variance permitting construction of a dwelling at anelevation less than 12 feet above sea level, the appeal is from a judgment of the Supreme Court,Nassau County (Adams, J.), entered September 7, 2011, which, upon an order of the same courtentered August 8, 2011, granting the petition, is in favor of the petitioner annulling thedetermination and directing the application to be approved.
Ordered that the judgment is reversed, on the law, with costs, the petition is denied, thedetermination is confirmed, the proceeding is dismissed on the merits, and the order is modifiedaccordingly.
The petitioner is the owner of a vacant waterfront parcel located at the southerly end of aprivate road in the Village of Centre Island. The parcel is irregularly shaped and, at its highestpoint, lies at an elevation roughly 8.4 feet above mean sea level. Adjacent to the west liewetlands and marshlands, which are owned by the Village and conserved as a bird sanctuary andnature preserve. Adjacent to the east lie Oyster Bay Harbor and the Oyster Bay National WildlifeRefuge.
In 2006 the petitioner secured a tidal wetlands permit from the New York State Departmentof Environmental Conservation (hereinafter NYSDEC), which authorized the construction of adwelling, on piles, within a footprint approximately 30.4 feet from the southerly property line.Thereafter, the petitioner applied to the Village for a building permit to construct a3,654-square-foot dwelling in accordance with the plans submitted to NYSDEC. The VillageBuilding Inspector denied the building permit application, explaining that the parcel did not meetthe minimum frontage or lot-size requirements, that the plans did not meet all setbackrequirements, and that the proposed construction was prohibited because it called for a dwellingto be located at an elevation less than 12 feet above mean sea level. The petitioner then applied tothe Board of Zoning Appeals of the Village of Centre Island (hereinafter the BZA) for areavariances from these four requirements.[*2]
Due to one recusal and one vacancy on the five-memberBZA, the petitioner was required to secure the approval of each of the remaining three BZAmembers. At several public hearings, the BZA heard testimony and received reports from expertsretained by the petitioner and from experts retained by certain neighbors opposed to theapplication. The BZA also heard comments from the Village Engineer and from residents of thecommunity. After the hearings, the BZA unanimously approved the application insofar as itconcerned the variances pertaining to lot area, frontage, and setbacks. With respect to thesevariances, the BZA members all agreed that the benefit to the petitioner outweighed any potentialdetriment to the community. The BZA, however, could not reach an agreement with respect tothe elevation variance. A motion to grant the elevation variance did not garner the requirednumber of votes to pass, the motion failed, and the application for a variance from the elevationrequirement was denied "as a matter of law," with no factual findings provided.
The petitioner then commenced the instant proceeding pursuant to CPLR article 78 asserting,among other things, that the denial of the elevation variance was arbitrary and capricious,unreasonable, and unsupported by the record. The Supreme Court, upon a review of the entirerecord, granted the petition, annulled the determination denying the request for an elevationvariance, and directed the elevation variance to be approved. The members of the BZA appeal,and we reverse the judgment, deny the petition, confirm the determination, and dismiss theproceeding on the merits.
" 'Local zoning boards have broad discretion in considering applications for area variances' "(Matter of Goldberg v Zoning Bd. ofAppeals of City of Long Beach, 79 AD3d 874, 876 [2010], quoting Matter of Caspian Realty, Inc. v Zoning Bd.of Appeals of Town of Greenburgh, 68 AD3d 62, 67 [2009]; see Matter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771[2005]). In reviewing an application for an area variance, a zoning board is required to engage ina balancing test "weigh[ing] the benefit of the grant to the applicant against the detriment to thehealth, safety and welfare of the neighborhood or community if the variance is granted"(Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612; seeMatter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]; Matter of Goldberg v Zoning Bd. ofAppeals of City of Long Beach, 79 AD3d at 876; Matter of Crilly v Karl, 67 AD3d 793 [2009]; Matter ofHalperin v City of New Rochelle, 24 AD3d at 773; Village Law § 7-712-b [3] [b])."The judicial function in reviewing such determinations is limited and a reviewing court shouldrefrain from substituting its own judgment for the judgment of the zoning board" (Matter ofGoldberg v Zoning Bd. of Appeals of City of Long Beach, 79 AD3d at 877; see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613; Matter of Halperinv City of New Rochelle, 24 AD3d at 772). "Courts may set aside a zoning boarddetermination only where the record reveals that the board acted illegally or arbitrarily, or abusedits discretion" (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at613).
"[W]hen a quorum of the board is present and participates in a vote on an application, a voteof less than a majority of the Board is deemed a denial" (Matter of Tall Trees Constr. Corp. vZoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 89 [2001]; see Matter of London v Zoning Bd. ofAppeals of Town of Huntington, 49 AD3d 739 [2008]). That no factual findings wereprovided or articulated does not preclude judicial review. Where there is no formal statement ofreasons for the rejection, "an examination of the entire record, including the transcript of themeeting at which the vote was taken along with affidavits submitted in the article 78 proceedingcan provide a sufficient basis for determining whether the denial was arbitrary and capricious"(Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97NY2d at 93 [citations and internal quotation marks omitted]).
Here, contrary to the Supreme Court's conclusion, the record supports the BZA's denial of theelevation variance. The BZA conducted an extensive hearing, considered the activities authorizedby the NYSDEC, and reviewed maps, aerial photographs, and scientific data concerning the areain question. While the petitioner presented expert testimony indicating that the proposed planwould not affect the character of the neighborhood or have an adverse impact on the physical orenvironmental conditions, those opposed to the application presented evidence indicating that theproposed construction would affect flooding, expose neighboring lands and the groundwater to[*3]potential contamination, and have an adverse impact on theaesthetic quality of the community. Notably, these arguments were supported by expert testimonywhich was based on scientific data and empirical facts (cf. Matter of Frank v Scheyer,227 AD2d 558 [1996]). Under the circumstances, and in light of the evidence presented, alongwith the affidavits submitted in the CPLR article 78 proceeding, the BZA did not act arbitrarilyor illegally in denying the requested elevation variance. As such, the determination should nothave been disturbed (see Matter of London v Zoning Bd. of Appeals of Town ofHuntington, 49 AD3d at 740).
The petitioner's remaining contention is without merit. Rivera, J.P., Belen, Sgroi and Miller,JJ., concur.