Marro v Libert

[*1] Marro v Libert 2006 NY Slip Op 50868(U) [12 Misc 3d 1152(A)] Decided on March 8, 2006 Supreme Court, Nassau County Lally, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2006
Supreme Court, Nassau County

Mary Ann Marro, Plaintiff,

against

Jack Libert et al., Defendants.



15005/05

Ute Wolff Lally, J.

This is an Article 78 petition in the nature of mandamus to review a decision of respondent Zoning Board of Appeals of the Town of Oyster Bay which denied petitioner's application for an area variance permitting improvement of her property. The Board denied the application primarily on the ground that the premises were used as an illegal rooming house. For the reasons which follow, the petition is granted, the decision of the Zoning Board is annulled, and the Board is directed to grant petitioner the requested variance.

Petitioner is the owner of a single family home located at 119 Alhambra Road in Massapequa. Respondents Scott Guardino, Jacqueline Waters, Susan Cloninger, Joseph Bordino, John Fanning, and Anthony Addeo are members of the respondent Zoning Board. Respondent Jack Libert is the Board's Chairman. Petitioner's property is situated in an R1-7 zoning district, which requires residential lots to be at least 70 feet wide and to have an area of at least 7,000 square feet. [*2]

Petitioner's property is an irregularly shaped parcel located on the Adam's Canal. The property's west frontage is 40.34 feet running along the canal, and the frontage along Alhambra Road is an angled 47.08 feet. On October 15, 1959, the Board granted Celeste Blasi, petitioner's predecessor in title, a variance to erect a residence on the lot "having less width, area, one side yard, aggregate side yards, less rear yard and greater percentage of building area than [the zoning] ordinance requires, also encroachment of eaves, gutter, stoop and chimney." The variance was granted on the following conditions:

(1) side yard [setbacks of] 5' on the north, 10' on the south

(2) gutters and leaders to be installed on all diminished yards

(3) dry wells to be installed to accept all roof water, run-off

(4) kitchen entrance, stoop and chimney not permitted in diminished yard

(5) the overhang and gutter shall not exceed a maximum of 2'

[6] 18' rear yard [setback].

The variance also required that the building plan which had been submitted to the Board had to be adhered to, except as specified in the above conditions. The residence was then constructed in substantial compliance with the conditions of the variance, but, as will be detailed below, with a slight deviation from the side yard setback requirements. Nonetheless, on January 23, 1986, the Board granted an application by Blasi, amending the prior variance, to allow the garage area of the premises to be converted into living space.

On or about October 15, 2004, Kevin Daily, on behalf of petitioner, filed an application with the Division of Building, Department of Planning and Development of the Town of Oyster Bay requesting a permit to construct a second floor addition to the residence, measuring 19.5 x 31.5 feet. It appears from a photograph and a plot plan subsequently submitted to the Zoning Board that the house is a 1 ½ story Cape Cod style home. Petitioner proposed to "dormer out," or raise the sloping ceiling of the rear bedroom, without changing the length and width of the structure.

On November 19, 2004, the Department of Planning and Development rejected the application on the grounds that the proposed second story addition (a) had a side yard setback of 4.87' as opposed to the minimum required side yard set back of 8', and an aggregate side yard setback of 14.84' as opposed to the required aggregate of 20'

(b) had a rear yard setback of 18' as opposed to the required 25'

(c) had encroachments of eaves and gutters in violation of zoning ordinance, and

(d) did not comply with the conditions of the prior variance as amended nor did it adhere to the original building plan. [*3]

On April 30, 2005, Mr. Daily, acting on petitioner's behalf, filed with the Zoning Board the application which gives rise to this proceeding. The application requested an area variance to construct a second floor addition to the premises with less than the side yard, aggregate side yards, and rear yard setbacks required by the Town of Oyster Bay Zoning Ordinance, as well as encroachment of eaves and gutters.

On July 28, 2005, a hearing was held before the Board on petitioner's application for an area variance. At the hearing, Mr. Daily, who appeared on behalf of petitioner, stated that the plans for the proposed improvement called for raising the roof on an existing bedroom in the rear of the house. Petitioner wished to convert the bedroom into a master with a bathroom and a closet and a view overlooking the canal. Additionally, the plans called for switching the direction of an existing stairwell. Mr. Daily also stated that petitioner was proposing to "shorten the overhang" to one foot, an apparent reference to the encroachments. Mr. Daily submitted a 1995 survey of another home on the block which had a "full dormer" and a 4' side yard setback. Finally, Mr. Daily stated that in his opinion the application conformed to several homes in the area.

Several residents of Alhambra Road appeared in opposition to petitioner's application for the variance. John Lombardi, who lived next door, characterized petitioner's house as an "eyesore" and claimed that there were three to five boarders living in the house. Mr. Lombardi indicated that the tenants used loud and obscene language and that the police had been summoned on several occasions. Finally, Mr. Lombardi stated that the tenants had increased both the traffic and number of vehicles which were parked on the street, including limousines, vans, and ambulettes. Ms. Linda Rosen, who lives down the block, testified that her children's camp bus was unable to stop at the curb because of all the cars which were parked in front of her house. Ms. Rosen stated that when she complained to petitioner about the vehicles, petitioner claimed that they belong to her "nephew." Ms. Rosen also testified that she would not let her children ride their bikes in front of petitioner's home because of her concern about the "backgrounds" of petitioners' tenants. Caren Catinella, another resident of the block, claimed that the people who lived at petitioner's home were transients who stayed for a very short duration. Finally, Dolores Estro, who lives on a nearby street, testified that there was litter, including bottles, cans of beer, and cigarette butts in the vicinity of petitioner's property.

Although Mr. Daily stated in rebuttal that petitioner had told him that everyone staying at the house was a "family member," petitioner herself did not testify or appear at the hearing. Subsequent to the hearing, petitioner submitted to the Board an affidavit in support of her application in which she alluded to the inconvenience of the low and slanted ceiling in her bedroom but did not address the issue of whether her home was being used as a rooming house.

On August 4, 2005, the Zoning Board issued a decision denying petitioner's application. The Board's decision was filed in the office of the Town Clerk on August 24, 2005. Although the Zoning Board's decision did not include any findings of fact, the Board has submitted [*4]findings in support of its decision in its return to petitioner's petition in this Article 78 proceeding. In its findings, the Board states that it has considered the benefit to the applicant if the variance is granted as weighed against the detriment to the health, safety and welfare of the neighborhood or community. The Board found that the applicant was operating a rooming house or boarding house on the subject premises in violation of the use restrictions of the Town of Oyster Bay Zoning Ordinance. The Board noted that Town Zoning Ordinance § 5.5.23.4 provides, with respect to rooming or boarding houses, that "at least one of the occupants shall reside on the premises and shall be the agent for the rental or lease of the rooms." The Board further found that by enlarging the applicant's bedroom, the grant of the variance would encourage the maintenance of the illegal boarding house. The Board concluded that granting the requested variance would result in noise and disturbance, increase in population density, increase in traffic and off street parking on the neighborhood's streets, and thereby produce an undesirable change in the character of the surrounding residential neighborhood. In addition, the Board found that construction of the proposed addition would block light and air access of nearby homes and that the benefit sought by applicant could be achieved by combining two of the other bedrooms. The Board found that the requested area variance was substantial. Finally, the Board found that petitioner's difficulty was self-created in that she was aware of the setback restrictions when she took title.

Pursuant to Town Law § 267-b(3), when determining whether to grant an area variance, a zoning board of appeals must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted. The zoning board is also required to consider whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty is self-created.

The Court of Appeals has noted that local zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one (Pecoraro v. Board of Appeals, 2 NY3d 608, 613). Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure. Id. A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence. Id.

From a review of the proceedings before the Board, the court concludes that the Board's action lacks a rational basis and is not supported by substantial evidence. Because of its overriding concern with petitioner's illegal use of the premises, the Board incorrectly applied the criteria set forth in § 267-b of the Town Law. Moreover, it is clear that the benefit to petitioner in granting a variance allowing her to raise the roof of her bedroom is significant, while there is little, if any, detriment to the health, safety or welfare of the community. [*5]

Raising the roof or "dormering out" the bedroom in a Cape Cod style home certainly does not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. Indeed, such an ordinary and routine improvement has a minimal impact on light and air access and may even enhance the value of neighborhood properties. Evidence before the Board indicated that another home on the street had already been improved with a "full dormer," although it also had only a 4' side yard set back. If an applicant is seeking a variance to conform to that which is prevalent in the neighborhood, absent other overriding considerations, a denial of relief is likely to be found arbitrary(Town Law § 267-b, McKinney [2004] Practice Commentaries at 323). The Board found that allowing petitioner to have a higher ceiling in her bedroom would somehow enhance her capacity to rent the spare bedrooms in her home. Absent any evidence that petitioner was using her bedroom as a rental office, the Board 's conclusions that granting the variance would change the character of the neighborhood or have an adverse impact upon the district were totally lacking in substance.

While rejecting the Board's theory concerning a nexus between the proposed home improvement and petitioner's illegal use of the premises, the court does not minimize the Board's concerns about the undesirable effects of conducting a rooming house in a residential neighborhood. Nevertheless, as the Appellate Division has stated, the objectives of peace and security of the residents "can be achieved constitutionally by prohibiting hotels or rooming houses in residential districts, invoking criminal and general power statutes to control disruptive behavior, imposing single housekeeping unit criteria in zoning ordinances, and establishing off-street parking requirements" (McMinn v. Town of Oyster Bay, 105 AD2d 46, 58, aff'd 66 NY2d 544). The availability of these appropriate remedies indicates that the Board may not enforce a use restriction indirectly by denying petitioner an area variance to which she would otherwise be entitled.

While petitioner has the option of combining two of the smaller bedrooms into a master, her goal of achieving a view overlooking the canal cannot be achieved without granting the requested variance. Land use restrictions may be enacted to enhance the quality of life by preserving desirable aesthetic features of the community (Union College v. Schenectady, 91 NY2d 161, 165). In similar fashion, an aesthetic purpose of the homeowner must be considered when determining whether the benefit sought by the applicant can be attained by some method other than a variance.

The Board's finding that the requested area variance is substantial is contradicted by the fact that the Board itself had previously granted the prior owner a variance from the side yard and rear yard setback requirements. While it is true that the house as constructed exceeded the side yard restrictions by .13' on one side and .16' on the other, these "minimal deviations" from the conditions cannot be relied upon to deny a variance (Townwide Properties, Inc. v. Zoning Board of Appeals, 143 AD2d 757).

The fact that property is purchased with knowledge of applicable zoning restrictions renders any difficulty self-created because the purchaser is charged with notice of the restriction at the time she took title (Friends of Lake Mahopac v. Zoning Board of Appeals, 15 AD3d 401). [*6]However, petitioner took title to property which was subject not only to existing zoning restrictions but also an existing variance. Because the conditions which were imposed on the prior variance did not "clearly state" that the owner's right to alter the slope of the roof was restricted, such a restriction cannot now be imposed upon the property (Hoffmann v. Gunther, 245 AD2d 511, 513).

Thus, the court concludes that the benefit of the grant to the applicant greatly exceeds any negligible detriment to the welfare of the community. In these circumstances, it appears that in denying the variance, the Board was merely succumbing to community pressure. Accordingly, the petition is granted, the decision of the Zoning Board is annulled, and the Board is directed to grant petitioner the requested variance.

This shall constitute the Decision and Judgment of this court.

Dated: March 8, 2006______________________________

J.S.C.