| Matter of S & R Dev. Estates, LLC v Feiner |
| 2013 NY Slip Op 08641 [112 AD3d 945] |
| December 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of S & R Development Estates, LLC,Respondent, v Paul J. Feiner et al., Appellants. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William P. Harrington andJames W. Glatthaar of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the Town of Greenburgh dated November 9, 2007, that thepetitioner's real property is properly zoned in an R-20, one-family residence zoningdistrict, rather than a CA-I zoning district that permits multi-family housing, the appeal isfrom an order and judgment (one paper) of the Supreme Court, Westchester County(Loehr, J.), entered January 11, 2011, which denied the appellants' motion to dismiss thepetition and granted the petition to the extent of annulling the determination.
Ordered that the order and judgment is affirmed, without costs or disbursements.
On May 24, 2006, the petitioner acquired title to the subject property, a 2.26-acreparcel in Edgemont (hereinafter the subject property), an unincorporated area within theTown of Greenburgh. The subject property was depicted on the official zoning map ofthe Town as located in the CA-I district, in which multi-family residential complexes arepermitted. During the performance of due diligence prior to its purchase of the subjectproperty, the petitioner reviewed prior zoning maps of the Town, all of which indicatedthat the subject property was situated in the CA-I district. On February 2, 2007, thepetitioner submitted an application for site plan approval to the Town's Department ofCommunity Development and Conservation (hereinafter the Department). In a letterdated February 26, 2007, Mark Stellato, then-Commissioner of the Department, notifiedthe petitioner that, following a review of the "initial zoning history" of the subjectproperty, it had "come to [the] attention" of the Department that the subject property wasactually situated in an R-20 district, in which only one-family residences could bedeveloped. The petitioner contended that Stellato then unilaterally directed the Town'sengineer to alter the Town's official zoning map to reflect that the subject property wassituated in an R-20 district, which the petitioner alleges, upon information and belief, thatStellato accomplished "with the stroke of a pen." The petitioner appealed Stellato'sdetermination to the Town's Zoning Board of Appeals (hereinafter the ZBA). In adetermination dated November 9, 2007, the ZBA denied the appeal, concluding that theevidence before it demonstrated that the subject property was not situated within theCA-I district when that district was adopted, and that the subject property was neverrezoned from R-20 to CA-I, notwithstanding the existence of official Town zoning mapsthat depicted the subject property in the CA-I district. Accordingly, the ZBA concludedthat the proper zoning designation of the subject [*2]property was R-20.
The petitioner commenced this proceeding pursuant to CPLR article 78 againstpresent and former members of the Town Board of the Town, the ZBA, and Stellato(hereinafter collectively the appellants) to review the ZBA's determination. Theappellants moved to dismiss the petition. In an order and judgment, the Supreme Courtdenied the motion and granted the petition to the extent of annulling the ZBA'sdetermination.
The Supreme Court, upon the denial of the appellants' motion to dismiss the petition,granted the petition without the benefit of an answer or the filing of the fulladministrative record pursuant to CPLR 7804 (e) (see generally Matter of Bethelite Community Church, GreatTomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8NY3d 1001 [2007]). Nonetheless, where, as here, the "facts are so fully presented inthe papers of the respective parties that it is clear that no dispute as to the facts exists andno prejudice will result from the failure to require an answer," this Court may review themerits of the proceeding without remitting it to the Supreme Court for the filing of ananswer and the administrative record (Matter of Nassau BOCES Cent. Council ofTeachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101-102[1984]; see Matter of Rizvi vNew York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049,1051 [2012]; Matter of Kuzmav City of Buffalo, 45 AD3d 1308, 1310-1311 [2007]; cf. Matter of Shepherd vMaddaloni, 103 AD3d 901 [2013]).
"In a proceeding pursuant to CPLR article 78 to review a determination of a zoningboard of appeals, judicial review is limited to ascertaining whether the action taken isillegal, arbitrary and capricious, or an abuse of discretion" (Matter of Hejna v Board ofAppeals of Vil. of Amityville, 105 AD3d 843, 844 [2013]; see Matter ofMejias v Town of Shelter Is. Zoning Bd. of Appeals, 298 AD2d 458, 458 [2002]; see also Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Luburic v Zoning Bd. ofAppeals of Vil. of Irvington, 106 AD3d 824, 825 [2013]). Here, the SupremeCourt properly concluded that the ZBA's determination was arbitrary and capricious andaffected by an error of law, and properly annulled that determination. As the SupremeCourt correctly determined, Stellato's actions violated, inter alia, former Town ofGreenburgh Code § 285-7 (A), which, at all relevant times, and prior to itsamendment in September 2012, provided that the official zoning map of the Town "shallbe the final authority as to the current zoning classification of any land within theboundaries of" the Town, as well as Town Law §§ 264 and 265, which setforth certain requirements pertaining to public notice and the opportunity to be heard thatmust be satisfied prior to the amendment of zoning regulations, restrictions, andboundaries. Moreover, the record is devoid of evidence to support the ZBA's finding thatthe subject property was depicted in the CA-I district as a result of a scrivener's error. Inresponse to a request pursuant to the Freedom of Information Law (Public Officers Law§ 84 et seq.), the Town failed to produce any official zoning map for theperiod between 1957 and June 2000, or any map relating to the alleged scrivener's error.
The appellants' remaining contentions are either improperly raised for the first timeon appeal or without merit. Skelos, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.