| Matter of Pinnetti v Zoning Bd. of Appeals of Vil. of MountKisco |
| 2012 NY Slip Op 09067 [101 AD3d 1124] |
| December 26, 2012 |
| Appellate Division, Second Department |
| In the Matter of Nicholas Pinnetti et al.,Appellants, v Zoning Board of Appeals of Village of Mount Kisco,Respondent. |
—[*1] Singleton, Davis & Singleton, Mount Kisco, N.Y. (Whitney Singleton and Robert F. Davisof counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Village/Townof Mount Kisco Zoning Board of Appeals dated January 24, 2011, which, after a hearing, interalia, denied the petitioners' application for an area variance, the petitioners appeal from ajudgment of the Supreme Court, Westchester County (Lorenzo, J.), entered June 2, 2011, whichdenied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioners applied for a building permit from the Village/Town of Mount Kisco(hereinafter the Village) to construct a two-family dwelling on two adjacent lots situated onOakridge Road in the Village. Although 12 houses existed on Oakridge Road at the time whenthe petitioners requested the permit, the Building Inspector of the Village (hereinafter theBuilding Inspector) denied the application on the ground that Oakridge Road did not qualify asan "official" road within the Village, as required by Village Law § 7-736.
The petitioners then applied to the Zoning Board of Appeals of the Village/Town of MountKisco (hereinafter the ZBA) for, inter alia, an interpretation of the Village Law that OakridgeRoad was an "official" road within the Village, and that they were, thus, entitled to the issuanceof a building permit as of right, or, in the alternative, an area variance to relieve them from anylot deficiency preventing the issuance of a building permit.
After a series of public hearings, the ZBA denied the requests for the interpretation and thevariance in a formal resolution dated January 24, 2011 (hereinafter the resolution). The resolutionreflected the ZBA's finding that Oakridge Road was not listed as an "official" road of the Village,as required under the first prong of the two-pronged inquiry set forth in Village Law §7-736 (2). The ZBA also found that the application failed to satisfy the second prong of thestatute, which required that any road providing access to a dwelling be "suitably improved,"because Oakridge Road failed to meet the Village's minimum standards for paved width andlacked a [*2]turnaround, adequate curbing, drainage, andsidewalks, and there was no means for emergency responders to safely gain access to the road.
The resolution further indicated that the ZBA denied the request for a variance afterevaluating the petitioners' application under each of the factors set forth in Village Law §7-712-b (3) (b) and balancing the benefit of granting the petitioners' request against the resultingdetriment to the community. The ZBA found, inter alia, that the construction of an additionaldwelling on Oakridge Road would result in "an undesirable change" and "detriment toneighboring properties," as the additional traffic that would result from the erection of anadditional dwelling on Oakridge Road "would exacerbate already poor traffic conditions andcompromise public safety by making access for residents and emergency responders morearduous."
The petitioners commenced this CPLR article 78 proceeding in the Supreme Court, seeking,inter alia, to review the ZBA's determination. The Supreme Court denied the petition anddismissed the proceeding.
" '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' " (Matter of Campbell v Town of Mount Pleasant Zoning Bd. of Appeals,84 AD3d 1230, 1230 [2011], quoting Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven,77 AD3d 949, 949 [2010]; see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002];Matter of Jonas v Stackler, 95AD3d 1325 [2012]; Matter of Sanzoverino v Bruscella, 291 AD2d 502, 503 [2002]).Accordingly, on judicial review, the determination of a zoning board should be sustained if it isnot illegal, has a rational basis, and is not arbitrary and capricious (see Matter of Sasso vOsgood, 86 NY2d 374, 384 [1995]; Matter of Campbell v Town of Mount PleasantZoning Bd. of Appeals, 84 AD3d at 1230; Matter of Witkowich v Zoning Bd. of Appeals of Town of Yorktown,84 AD3d 1101, 1102 [2011]; Matter of Genser v Board of Zoning & Appeals of Town of N.Hempstead, 65 AD3d 1144, 1147 [2009]).
In determining whether to grant an area variance, a zoning board of appeals is required toengage in a balancing test, weighing the benefit to the applicant against the detriment to thehealth, safety, and welfare of the neighborhood or community if the variance is granted (seeVillage Law § 7-712-b [3] [b]; Matter of Ifrah v Utschig, 98 NY2d at 307; Matter of Jonas v Stackler, 95 AD3d1325 [2012]; Matter of CaspianRealty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 72 [2009]).A zoning board must also consider "(1) whether an undesirable change will be produced in thecharacter of the neighborhood or a detriment to nearby properties will be created by the grantingof the area variance; (2) whether the benefit sought by the applicant can be achieved by somemethod, feasible for the applicant to pursue, other than an area variance; (3) whether therequested area variance is substantial; (4) whether the proposed variance will have an adverseeffect or impact on the physical or environmental conditions in the neighborhood or district; and(5) whether the alleged difficulty was self-created; which consideration shall be relevant to thedecision of the board of appeals, but shall not necessarily preclude the granting of the areavariance" (Village Law § 7-712-b [3] [b]).
Here, the ZBA's finding that the detriment to the community outweighed the benefit ofgranting a variance had a rational basis in the record and was not arbitrary and capricious. Inparticular, the submissions of the Mount Kisco Planning Board, the Building Inspector, and theMount Kisco Fire Department established that Oakridge Road was not adequate to serve anadditional home. The paved portion of Oakridge Road varied from 15 to 21 feet wide, as opposedto the minimum Village standard, and notwithstanding that the road remains in use, it lacked aturnaround, adequate curbing, drainage, sidewalks, and a means of safe access for emergencyresponders, the effects of which would be worsened by construction of another dwelling and theaddition of two more families. Moreover, the requested variance was substantial and the allegeddifficulty was self-created. Further, although the Village proposed reducing certain of therequirements to enable the petitioners to proceed with construction of the proposed dwelling, thepetitioners summarily rejected the proposal and merely proposed to use an 18-foot-wide portionof their property to create a patently insufficient turnaround.[*3]
Although the Supreme Court did not specifically find thatthe building permit was properly denied because of the substandard conditions of the subjectroad, the ZBA's determination in this regard also had a rational basis in the record and was notarbitrary and capricious, based on the same evidence which supports the ZBA's denial of theapplication for a variance (see Village Law § 7-736 [2]).
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.Skelos, J.P., Angiolillo, Dickerson and Hall, JJ., concur.