| Matter of Waterways Dev. Corp. v Town of Brookhaven ZoningBd. of Appeals |
| 2015 NY Slip Op 01808 [126 AD3d 708] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Waterways Development Corp.,Respondent, v Town of Brookhaven Zoning Board of Appeals et al.,Appellants. |
Sinnreich Kosakoff & Messina, LLP, Central Islip, N.Y. (Jonathan Sinnreichand Lisa A. Perillo of counsel), for appellants.
Farrell Fritz, P.C., Uniondale, N.Y. (Charlotte A. Biblow and Rachel A. Scelfo ofcounsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Townof Brookhaven Zoning Board of Appeals, dated September 16, 2009, denying thepetitioner's application for a determination that previously approved height variancesremained valid, and denying, as premature, the petitioner's applications for heightvariances, the appeal is from a judgment of the Supreme Court, Suffolk County (Spinner,J.), dated February 15, 2013, which granted the petition to the extent of annulling thedetermination denying the petitioner's application for a determination that previouslyapproved height variances remained valid, and remitted the matter to the Town ofBrookhaven for the issuance of building permits for the subject buildings.
Ordered that the judgment is affirmed, with costs.
The petitioner Waterways Development Corp. (hereinafter Waterways) ownsapproximately 100 acres of property in the respondent Town of Brookhaven, which isdeveloped with a planned retirement community. The property was previously owned byBay Pointe Associates (hereinafter Bay Pointe), which, in the 1980s, sought to constructa retirement community with more than 500 dwelling units. In connection with theproposed development, Bay Pointe applied to the respondent Town of BrookhavenZoning Board of Appeals (hereinafter the ZBA) for variances to permit the constructionof three buildings having three stories not exceeding 35 feet in height (hereinafter themidrises), instead of two and one-half stories not exceeding 35 feet as previouslypermitted by the Town of Brookhaven Town Code. The variances were granted and werevalid for one year. Bay Pointe thereafter applied to the ZBA for an extension of thevariances, stating that it had commenced construction of certain buildings, but not themidrises, and that the project was expected to take six years to complete. The ZBAgranted an extension of one year. Bay Pointe requested a rehearing and, on January 8,1986, the ZBA granted a further extension of the variances. The variance approval states,"Granted, respectively, due to magnitude of project, approved for life of job." The Townof Brookhaven Planning Board (hereinafter the Planning Board) granted final site planapproval for the project on April 24, 1987.
Bay Pointe completed construction of approximately 228 units, with related [*2]improvements. In 1995, Bay Pointe went into bankruptcyand the premises were sold to Post Village, Inc. (hereinafter Post Village). In 1997,so-ordered stipulations of settlement were entered in Bay Pointe's bankruptcy proceedingand in an action commenced by Post Village against the members of the Town ofBrookhaven Town Board related to certain covenants, wherein the Town of Brookhavenacknowledged that the site plan was still valid and in effect and that Post Village couldcommence and/or continue construction pursuant to the site plan without any furtherzoning or planning board approvals. Also in 1997, the Commissioner of the PlanningBoard responded to an inquiry from Waterways about the development by referencingthe site plan approved on April 24, 1987, and stating that the remainder of the approvedunits could still be built. Waterways thereafter purchased the premises and completed thesecond phase of construction and improvements, leaving only the midrises with 145combined units to complete.
In May 2001, Waterways applied for building permits for the midrises. Theapplications were denied and Waterways appealed to the ZBA for a determination ofvested rights to build the midrises. Prior to the hearing, Waterways and the Towncommenced negotiations concerning a transfer of the development rights to anotherproject, and the hearing was adjourned and the appeal later withdrawn. Negotiationswere unsuccessful and, in 2003, Town officials indicated that they would not permitconstruction of the midrises since they believed that the variances had lapsed. Litigationsthen ensued, which were dismissed as unripe due to Waterways' withdrawal of its 2001appeal to the ZBA (seeWaterways Dev. Corp. v Lavalle, 28 AD3d 539 [2006]).
Waterways then applied for building permits to construct the midrises. Theapplications were denied for failure to comply with the two and one-half story restriction.Waterways appealed to the ZBA, challenging the Building Department's determinationthat new variances were required and, alternatively, seeking new variances. After apublic hearing, the ZBA denied the application for a determination that the 1986variance was still valid, noting that the original applicant had estimated completion ofconstruction in six years and determining that it would be unreasonable to conclude thatthe 1986 ZBA would ignore intervening changes in the law and permit completion of theproject after nearly 25 years. The ZBA further determined that, even if it assumed thatthe original variance relief could have survived the 25 year hiatus, bankruptcy,abandonment, and multiple transfers of ownership, it would nonetheless still be void asof August 31, 2005, pursuant to Town Code of the Town of Brookhaven§ 85-30 (B). The ZBA denied the applications for new variances aspremature.
Waterways commenced this CPLR article 78 proceeding to annul the ZBA'sdeterminations as unlawful, arbitrary, and capricious. The Supreme Court granted thepetition to the extent of annulling the ZBA's denial of Waterways' application for adetermination that the 1986 variances remained valid, and remitted the matter to theTown of Brookhaven for the issuance of building permits for the midrises. The ZBA andthe Town of Brookhaven (hereinafter together the respondents) appeal.
The determination of a local zoning board is entitled to great deference, and will beset aside only if it is illegal, arbitrary and capricious, or irrational (see CPLR7803 [3]; Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Birch Tree Partners, LLCv Nature Conservancy, 122 AD3d 841 [2014]). Here, the ZBA's determinationthat the 1986 variances were no longer valid was arbitrary and capricious. Accordingly,the Supreme Court properly annulled that determination. The plain language of thevariance approval states that the variances were "approved for life of job" (see Matter of Merlotto v Town ofPatterson Zoning Bd. of Appeals, 43 AD3d 926, 930 [2007]). The ZBA'sreliance on estimates of the construction time-table given at the public hearing in 1986effectively and improperly imposed a condition not stated in the variance approval(see Matter of Sabatino v Denison, 203 AD2d 781 [1994]). Moreover, its relianceon what it believed members of the ZBA in 1986 would have done had they knownabout the later delays in construction and changes in law was improper speculation (see Matter of Rendely v Town ofHuntington, 44 AD3d 864 [2007]).
Furthermore, the ZBA's determination was in contravention of Waterways' vestedrights to complete construction of the midrises. Vested rights accrue where the ownerdoes [*3]substantial construction and incurs substantialexpense, in good-faith reliance on a permit (see Town of Orangetown v Magee,88 NY2d 41, 47 [1996]; Matterof Exeter Bldg. Corp. v Town of Newburgh, 114 AD3d 774, 779 [2014], lvgranted 24 NY3d 910 [2014]; Matter of James v Town of New Hartford, 49AD2d 247 [1975]). "Although many cases speak in terms of reliance on permits, a rightmay vest in certain situations when 'subdivisions' have been given a 'final grant ofapproval' " (Matter of Exeter Bldg. Corp. v Town of Newburgh, 114AD3d at 780 [citations omitted], quoting Matter of Ellington Constr. Corp. v ZoningBd. of Appeals of Inc. Vil. of New Hempstead, 152 AD2d 365, 373 [1989],affd 77 NY2d 114 [1990]). An owner may acquire vested rights to a site wherethe site is but a part of a single project and substantial construction had been commencedand substantial expenditures made in connection with other phases of the integratedproject which also benefitted or bore some connection to the affected site, such asinfrastructure for the entire project (see Matter of Schoonmaker Homes—JohnSteinberg, Inc. v Village of Maybrook, 178 AD2d 722, 725-726 [1991]; Matterof Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead,152 AD2d at 372-373; Telimar Homes v Miller, 14 AD2d 586 [1961];Elsinore Prop. Owners Assn. v Morwand Homes, 286 App Div 1105 [1955]).Where vested rights accrue, a successor-in-interest succeeds to the vested rights (seeElsinore Prop. Owners Assn. v Morwand Homes, 286 App Div at 1106).
Here, the project was approved as an integrated project. Waterways and itspredecessors completed substantial construction of project-wide infrastructure to thebenefit of the contemplated midrises and incurred substantial expenditures in good-faithreliance on the continuing validity of the variances. Waterways thus accrued a vestedright to complete construction of the midrises in accordance with the approved site planand variances (see Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals,152 AD2d at 377; Telimar Homes v Miller, 14 AD2d 586 [1961]; ElsinoreProp. Owners Assn. v Morwand Homes, 286 App Div 1105 [1955]). Contrary to therespondents' contention, Waterways was not divested of its rights through abandonmentor recoupment (cf. Matter of RCEnters. v Town of Patterson, 42 AD3d 542 [2007]).
The Supreme Court also properly determined that the ZBA's application of TownCode of the Town of Brookhaven § 85-30 (B) (now codified at Code ofTown of Brookhaven § 85-59 [B]) to these variances was arbitrary andcapricious. The provision, enacted in 2003, provides that all prior unexpired and validvariances with no date of expiration were to become null and void on August 31, 2005,subject to certain exceptions. A zoning ordinance must be strictly construed in favor ofthe property owner and against the municipality which adopted and seeks to enforce it(see City of New York v Les Hommes, 94 NY2d 267, 273 [1999]; Matter ofAllen v Adami, 39 NY2d 275, 277 [1976]; Matter of Lucas v Board of Appeals of Vil. of Mamaroneck,109 AD3d 925, 929 [2013]). Any ambiguities must be resolved in favor of theproperty owner (see Matter ofFerraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710 [2004]).Further, legislative enactments are to be construed so as to avoid constitutional issues ifsuch a construction is fairly possible (see FGL & L Prop. Corp. v City ofRye, 66 NY2d 111, 120 [1985]; Matter of Peters v New York City Hous.Auth., 307 NY 519, 527-528 [1954]).
Here, the subject variances were granted for the life of this specific project, not inperpetuity to be applied to any proposed construction. Accordingly, the Supreme Courtproperly determined that the subject variances were outside the scope of the codeprovision. In any event, given Waterways' vested rights to construction of the midrises,and the Town's dilatory tactics after Waterways' 2001 application for the buildingpermits, the ZBA's application of this 2003 enactment to the subject variances wasarbitrary and capricious (see Matter of Pokoik v Silsdorf, 40 NY2d 769, 773[1976]; Matter of c/o Hamptons,LLC v Rickenbach, 98 AD3d 736 [2012]; Matter of Mendozza v Board ofZoning Appeals of Town of Smithtown, 30 AD2d 863 [1968]).
Finally, contrary to the respondents' contention, upon annulling the ZBA'sdetermination, the Supreme Court properly remitted the matter to the Town for theissuance of the building permits sought by Waterways in the underlying applications tothe Building Department. Once a variance has been granted, the Town is "not bestowedwith any discretion, but [is] obligated to issue the building permits as a ministerial act"(Matter of Charter Land Dev. Corp. v Hartmann, 170 AD2d 600, 601 [1991];see Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322 [1993]; Matterof Filmways Communications of Syracuse v Douglas, 106 AD2d 185 [1985],affd 65 NY2d 878 [1985]; cf. Matter of Pius v Bletsch, 70 NY2d 920[1987]; see also ECL 8-0105 [5] [ii]).
[*4] Waterways' contentions regarding the ZBA's denial, aspremature, of its applications for new variances have been rendered academic and, in anyevent, are not properly before this Court (see CPLR 5515; Hecht v City ofNew York, 60 NY2d 57, 61 [1983]). Eng, P.J., Chambers, Cohen and Barros, JJ.,concur.