Matter of Deon v Town of Brookhaven

[*1] Matter of Deon v Town of Brookhaven 2006 NY Slip Op 51595(U) [12 Misc 3d 1196(A)] Decided on August 14, 2006 Supreme Court, Suffolk County Spinner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2006
Supreme Court, Suffolk County

In the Matter of Kathleen Deon, Petitioner,

against

Town of Brookhaven, THE DEPARTMENT OF PLANNING, ENVIRONMENT AND DEVELOPMENT of the TOWN OF BROOKHAVEN and M. CECILE FORTE, PETER CRIS, ROBERT L. HUGHES, STEPHEN E. KEEGAN, VINCENT PASCALE and RICHARD A. SMITH, constituting the PLANNING BOARD of the TOWN OF BROOKHAVEN, Respondents.



2005-13119



Scheyer & Jellenik, Esqs., Attorneys for Petitioner, 110 Lake Avenue South, Suite 46, Nesconset, New York 11767. J. Lee Snead, Esq., Attorneys for Respondents, 27 North Howells Point Road,

Bellport, New York 11713

Jeffrey Arlen Spinner, J.

ORDERED, that the application of Petitioner is hereby granted to the extent set forth herein below.

Petitioner moves this Court for an Order, pursuant to Article 78 of the CPLR, granting the relief demanded in the Petition, that relief more specifically being an Order of this Court directing:

1.That the Decision of Respondent PLANNING BOARD be found to be arbitrary, capricious and not in keeping with the evidence;

2.That the Findings of Respondent PLANNING BOARD were not made at a Public [*2]Hearing;

3.That the Decision of the Zoning Board of Appeals of the Respondent TOWN OF BROOKHAVEN, pursuant to the new procedure created by the Respondent TOWN OF BROOKHAVEN, be annulled and set aside;

4.That the application of Petitioner before the Respondent PLANNING BOARD be approved; and

5.That a decision be rendered as to the application of Petitioner before the Zoning Board of Appeals of the Respondent TOWN OF BROOKHAVEN.

Petitioner is the owner of a parcel of property in the Town of Brookhaven, said lot being approximately 37,000 square feet in size, located in the B-1 Residence Zoning District, which requires lot size of no less than 20,000 square feet. Petitioner seeks to subdivide her property into two lots, one containing the existing dwelling, which would retain 22,709 square feet of property, and the other, unimproved portion, which would contain 14,367 square feet. The area is, according to the evidence submitted to the Court, developed by a vast preponderance of homes on lots that do not meet these standards, and more closely represents existing development more reflective of the subdivision sought by Petitioner.

Petitioner, through a representative, made an application to the Zoning Board of Appeals (hereinafter ZBA), and a hearing was held on April 27, 2005, which the ZBA conducted even though they were fully informed that the Town Board of Respondent TOWN OF BROOKHAVEN had adopted an amendment to the Town Code which allegedly prohibits said ZBA from acting on variances concerning minor subdivisions before review and determination by Respondent PLANNING BOARD, thereafter being brought before the ZBA, if so referred by Respondent PLANNING BOARD. After the hearing was held, the ZBA adjourned the matter to May 20, 2005, on which date the application was marked "Held Indefinitely" by the ZBA.

In the interim, Respondent PLANNING BOARD held a hearing regarding Petitioner's application on May 16, 2005. Petitioner's representative demonstrated that the proposed unimproved lot would conform to 64 of the 84 surrounding lots, and was in keeping with the existing development of the area, the character of which had been fully established by existing development patterns.

One member of the community spoke in opposition to the application, and the Planning Commissioner of the Respondent TOWN OF BROOKHAVEN correctly advised Respondent PLANNING BOARD that it was their responsibility to render a decision as to the proposed subdivision, any issues as to required variances being the realm and domain of the ZBA. The record indicated that Respondent PLANNING BOARD did, in fact, discuss and consider matters that would require variances of Town Zoning Code requirements, which apparently impacted on their determination.

Apparently after the public hearing portion of the meeting, Respondent PLANNING BOARD adopted a determination denying the application, "...with staff comments as findings...", according to the transcript of the meeting. Thereafter, a more formal determination was prepared, dated May 16, 2005, including those staff comments as the findings of Respondent PLANNING BOARD, which was filed with the Town Clerk's Office of the Respondent TOWN [*3]OF BROOKHAVEN on May 20, 2005, and sent to Petitioner's Representative on May 27, 2005.

From the start, it should be noted that it is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (see: Janiak v. Planning Board of the Town of Greenville, 159 AD2d 574, 552 NYS2d 436 [2nd Dept], appeal denied, 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889 [1990]; Mascony Transport and Ferry Service v. Richmond, 71 AD2d 896, 419 NYS2d 628 [2nd Dept 1979], aff'd, 49 NY2d 969, 428 NYS2d 948, 406 NE2d 803 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see, Castle Properties Co. v. Ackerson, 163 AD2d 785, 558 NYS2d 334 [3rd Dept 1990]). It is, therefore, indisputable that the standard of review for determinations of Respondent PLANNING BOARD is whether the decision rendered is arbitrary, capricious and/or unlawful.

Whether by intention or as a consequence, the actions of the prior Town Board of the Respondent TOWN OF BROOKHAVEN, in codifying review by the Respondent PLANNING BOARD, prior to review by the ZBA, of an application containing requests that necessitate variances, has succeeded in bringing new attention to a paraphrasing of the age old question, "what comes first, the chicken or the egg". While their purpose seems to have been to incorporate safeguards against inappropriate development, instead it has created a new set of problems, by usurping the natural flow created for zoning applications by the Laws of the State of New York.

In McEnroe v. Planning Board of the Town of Clinton, 61 Misc 2d 937, 307 NYS2d 302, the Supreme Court, Dutchess County (December 17, 1969), issued an opinion that remains highly respected and clearly determinative of the manner in which the planning and zoning process properly functions between the Planning Board and Zoning Board of Appeals of any town under New York State law, in a situation that raises issues identical to the action at bar (albeit from the perspective of the Planning Board improperly granting an application, as opposed to denying one):

"The discretionary powers granted to a Board of Appeals under... Town Law were not granted to Planning Board. The authority of a Planning Board, unlike a Zoning Board of Appeals, is strictly limited by sections 276 and 277 of the Town Law. These sections specify the criteria upon which Planning Boards must rest their decision. An examination of the minutes of the respondent board shows that it exceeded its statutory power in this matter.

A substantial portion of the hearing before the respondent was taken up with the offering of evidence of the relative costs of lots in various forms of development and subdivision. The thrust of this proof was to establish the economic injury which the developer would suffer if he were required to subdivide in accordance with the bulk requirements of the freshly enacted Zoning Ordinance. The petitioners in this proceeding, who appeared as objectors at the hearing, made some attempt to rebut proof of economic impact which the developer attempted to show. Thus the struggle became a quasi-judicial contest upon constitutional issues.

It is hard to tell from the decision just what it was based upon. But, it gives the appearance of being a decision on economic hardship, far afield from the Planning Board's proper function. [*4]In approving a plat, a Planning Board is not authorzied to waive zoning restrictions. Anderson, Zoning Law and Practice in New York State (§ 15.10): "where a zoning ordinance has been adopted by the town the plots shown on said plat shall at least comply with the requirements thereof." (Town Law, § 277.) "Neither the filing of a map by a property owner nor its approval in any form not encompassing specific consideration of the classification of the Town Board can change the zoning or create an estoppel that will work such change." (Shapiro v. Town of Oyster Bay, 27 Misc 2d 844, 847.)

The petitioners allege that the evidence adduced at the hearing is inadequate to support the findings of economic injury. The respondents in their answer raise the issue of the sufficiency of the evidence adduced by petitioners, at the public hearing, to rebut such findings. At first impression, these allegations would seem to require transfer of the entire proceeding to the Appellate Division for disposition under the provisions of CPLR 7803 (subd. 4) and 7804 (subd. [d]). But, as has been pointed out above, these issues are quite irrelevant to this decision, because the respondent board exceeded its power.

If the determination under attack had been made by a Zoning Board of Appeals, different questions would be presented, involving the merits of the controversy."

Two citations from Town Law § 277, entitled "Subdivision review; approval of plats; additional requisites", offer further instruction on how the planning and zoning process of a town properly functions, setting forth what a Planning Board shall require, and what shall be required of a Planning Board, before it may approve a subdivision of land.

Subsection 3: "Compliance with zoning regulations. Where a zoning ordinance or local law has been adopted by the town, the lots shown on said plat shall at least comply with the requirements thereof...".

Subsection 6: "Application for area variance. Notwithstanding any provision of law to the contrary, where a plat contains one or more lots which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to section two hundred sixty-seven-b of this article... In reviewing such application the zoning board of appeals shall request the planning board to provide a written recommendation concerning the proposed variance."

The above should conclusively demonstrate why the reversal of the process in the Respondent TOWN OF BROOKHAVEN is ill-conceived, and legally improper within the laws of the State of New York, but in an attempt to offer a comprehensive insight as to why this reversal of process does not work, the Court continues with its analysis. One need look no further than McKinney's annotations to Town Law § 267 for further instruction as to why the planning and zoning process follows a specific order in the handling, review and determination of applications that request relief outside the limits of the zoning code of a town.

The statute that authorizes a Town Board to appoint a Zoning Board of Appeals only gives that board of appeals appellate jurisdiction (Barron v. Getnick, 107 AD2d 1017, 486 NYS2d 528 [4th Dept 1985]). The power to control subdivision of land has not been entrusted to the Zoning Board of Appeals (VanDeusen v. Jackson, 35 AD2d 58, 312 NYS2d 853 [2nd Dept 1970], aff'd 28 NY2d 608, 319 NYS2d 855, NE2d 650. [*5]

The Town Board has no jurisdiction to grant an area variance, since only the Zoning Board of Appeals can grant an area variance (Jaffe v. Burns, 64 AD2d 692, 407 NYS2d 577 [2nd Dept 1978]). The Zoning Board of Appeals has original jurisdiction to entertain applications for variances (Roosevelt Field v. Town of North Hempstead, 277 AD 889, 98 NYS2d 350 [2nd Dept 1950], see also, Bach v. Board of Zoning & Appeals of Town of North Hempstead, 282 AD 879, 124 NYS2d 744 [1953]).

Under Town Law, a Town Zoning Board of Appeals has been exclusively empowered to grant or deny zoning variances, and that power may not be circumvented or vitiated by permitting a Town Board to control the defense of Zoning Board determinations regarding a requested use variance; accordingly, when a CPLR article 78 proceeding has been brought against a Zoning Board of Appeals to challenge the denial of a use variance, such a proceeding may not be settled by the Town Board, nor may the Town Board move to withdraw an appeal in that proceeding on behalf of the Zoning Board. The Town Board, in this proceeding, is a separate entity from the Zoning Board and may not eviscerate determinations of the Zoning Board or control the course of litigation against it (Commco, Inc. v. Amelkin, 62 NY2d 260, 476 NYS2d 775 [Ct of App 1984]). By logical extrapolation, the Town Board cannot achieve the same result by reversing the process between the Zoning Board of Appeals and the Planning Board, requiring the Planning Board to render it's determination of an application containing requests for relief that require variances, first, when, by law, it is required to turn down the application because it does not comply with the town zoning code, thus depriving the Zoning Board of Appeals its exclusive jurisdiction to determine the issue of granting variance, with recommendations of the Planning Board, only, as per Town Law § 277(6).

The reversal of process adopted by the Town Board of Respondent TOWN OF BROOKHAVEN, requiring review first by the Planning Board, with its limited authority that specifically excludes approval of applications that do not specifically conform to the zoning code, directly violates the very purpose of the requirement for a Zoning Board of Appeals. As stated in McKinney's Commentaries, by Terry Rice, as pertains to Town Law § 267-a (Board of appeals procedures)"

"Of course, it is impossible to compose a zoning law which will fit every conceivable situation. Morevover, the application of the provisions of a zoning law may be impractical or unreasonable in a given situation because of the unique characteristics of a particular piece of property. Consequently, variances serve an important function by providing flexibility in the application of a town's zoning scheme under appropriate circumstances. Additionally, variances serve as a safety valve, providing an administrative forum for relief which otherwise might only be obtainable in an action for a judgment declaring a zoning law unconstitutional as applied to a parcel of property. The important function served by zoning boards of appeal is emphasized by the fact that a community which has adopted a zoning law must have a zoning board of appeals. See Town Law § 267(2)."

The gravest danger in reversing the process, and asking the Planning Board to review an application that requires variances, is that the Planning Board will, as it did in the case at hand, consider the variances in reaching their determination. The applicant is no less entitled to such determination within the parameters of existing law, and the Planning Board, that not being their [*6]charge, is likely to make mistakes in applying that law, since they are not, nor are they required, to be learned in the specifics of the proper laws to be applied. This danger could very well result in a Court granting the relief denied by the Planning Board, because of the prejudice suffered by an applicant by the unknowingly arbitrary, capricious and unlawful applications of those requirements by the unwitting Planning Board.

Although there are numerous examples of the effect misapplying existing law could result in the application be granted by the Court, as opposed to remanded, the Court would like to point to a few select decisions that would serve Respondents herein well to review when considering how to properly realign zoning and planning procedures in the Respondent TOWN OF BROOKHAVEN.

One such case is Tall Trees v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86, 761 NE2d 565, 735 NYS2d 873 (Ct of App 2001), where the Court determined:

"Nothing in the record supports the Board's denial of the variances. In determining whether or not to grant area variances, the Board is required "to engage in a balancing test, weighing the 'benefit to the applicant' against ' the detriment to the health, safety and welfare of the neighborhood or community' if the area variance is granted" (Matter of Sasso v Osgood, 86 NY2d 374, 384 [quoting Town Law § 267-b (3) (b)]). Moreover, " '[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious' " (Knight v Amelkin, 68 NY2d 975, 977 [citation omitted])...

...Aside from general and conclusory assertions, the Board failed to identify any evidence to refute petitioner's claim that this case involves nothing more than a minor variance application which in prior similar circumstances was routinely granted (see, Matter of T.J.R. Enters. v Town Bd., 50 AD2d 836 [citing Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 245- 246]). Thus, because the benefit of granting the requested variances to petitioner is great and any detriment to the community and neighborhood is de minimis, and because nearly identical variance applications have been approved in the past, we conclude that the Board acted arbitrarily in failing to grant the requested variances."

Several other cases on point are well stated by Petitioners, as contained in their Attorney's Affirmation submitted in support of the within Petition:

"16. Consistency with the neighborhood is the singularly most significant factor in subdivision cases, and that the effect of a requested variance in the neighborhood in which the property is located unquestionably is the paramount consideration in addressing the appropriateness of relief... it an applicant is seeking variances to conform to that which is prevalent in the neighborhood, absent other overriding considerations, a denial of relief is likely to be found arbitrary. This concept is recited in McKinney's Practice Commentaries to Village Law, Section 7-712-b in the 1999 supplement. See also Buckley v. Amityville Village Clerk, 264 AD2d 732, 694 NYS2d 739 (2nd Dept., 1999); Cassano v. Zoning Board of Appeals of the Village of Bayville, 263 AD2d 506, 693 NYS2d 621 (2nd Dept., 1999); Goldsmith v. Bishop, 264 AD2d 775, 695 NYS2d 381 (2nd Dept., 1999); Baker v. Brownlie, 248 AD2d 527, 670 NYS2d 216 (2nd Dept., 1998).

17. In Sauter v. Amster, 284 AD2d 540, 728 NYS2d 54 (2nd Dept., 2001), the Court concluded that the record was devoid of evidence that the granting of variances would produce any undesirable [*7]change in the character of the neighborhood or cause significant adverse impact on the neighborhood and annulled the denial."

As pointed out by Petitioner's submitted papers, in the instant case the Planning Board (seemingly attempting to do the job of the Zoning Board of Appeals, at the direction of the Town Board), failed to make specific findings that could be reviewed, did not comment on the nature and character of the area, did not offer testimony to contradict the testimony of Petitioner's witness (accepted as an expert, although not by this board on this occasion), and failed to follow the direction of the Town's Planning Director that it was their only function to deal with the subdivision and not their function to deal with the variances.

Town Law § 276, entitled "Subdivision review; approval of plats; development of filed plats", specifically requires, in both situations where the Respondent PLANNING BOARD is, or is not, the lead agency pursuant to the State Environmental Quality Review Act, that "...the grounds for disapproval shall be stated upon the records of the planning board...", using the same, exact language, repeatedly in every instances, under subsections all entitled "Grounds for decision". Absence of such findings supporting disapproval of a plat will result in invalidation of the decision and generally cause it to be remanded for the rendering of sufficient findings (see: Knollwood Real Estate Co. v. Planning Board of the Village of Elmsford, 122 AD2d 779, 505 NYS2d 450 [2nd Dept 1986]; Parmadale Development v. Planning Board of the Town of Parma, 35 AD2f 904, 316 NYS2d 842 [4th Dept 1970]).

As well stated by the Court in Morrone v. Bennett, 164 AD2d 887, 559 NYS2d 565 (2nd Dept 1990), "In its resolution the Board made only conclusory statements, which in effect, merely restated the statutory requirements and failed to set forth the factual bases and calculations for its determination denying the application... This lack of clarity constitutes a failure to specify factual support for the determination and forecloses intelligent judicial review of the issues raised by the parties on appeal (see, Leibring v Planning Bd., 144 AD2d 903; Matter of Greene v Johnson, 121 AD2d 632; Matter of Farrell v Board of Zoning & Appeals, 77 AD2d 875; Matter of Kadish v Simpson, 55 AD2d 911).". (See also, Human Development Services of Port Chester v. Zoning Board of Appeals of the Village of Port Chester, 110 AD2d 135, 493 NYS2d 481 [2nd Dept 1985], aff'd, 67 NY2d 702, 499 NYS2d 927, 490 NE2d 846 [1986]).

In Loram Development v. Planning Board of the Town of Huntington, 53 AD2d 670, 384 NYS2d 865, the Court determined that insufficient evidence was contained on the record to support the Planning Board's refusal to approve the map, said evidence only consisting of letters and memoranda which were conclusory in nature. In Church of Jesus Christ of Latter Day Saints v. Planning Board of the Town of Clifton Park, 260 AD2d 769, 687 NYS2d 794, the Court determined that the Board failed to proffer expert testimony to support it's generalized claims of potential problems, in reversing the denial of a special use permit.

In the instant matter, while Petitioner's representative made a record which reflects the standards set forth for approval in existing caselaw, Respondent PLANNING BOARD made no record. In Easy Home Program v. Trotta, 276 AD2d 553, 714 NYS2d 509 (2nd Dept 2000), the Court determined that, although the Petitioner's difficulty was self-created and the requested variance was, arguably, substantial, there was no evidence that granting the variance would have an undesirable effect on [*8]the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise result in a " 'detriment to the health, safety and welfare of the neighborhood or community' " (Sasso v Osgood, 86 NY2d 374, 384; see, Goldsmith v Bishop, supra ; Cassano v Zoning Bd. of Appeals, supra ; Peccoraro v Humenik, 258 AD2d 465). Much like in the instant case, the immediate neighborhood of the subject parcel contained a substantial number of lots that did not comply with the lot area zoning requirements (Cassano v Zoning Bd. of Appeals, supra ), and the Court determined that the denial of the area variance was arbitrary and capricious, and not supported by substantial evidence (see, Fuhst v Foley, 45 NY2d 441, 444; Tarantino v Zoning Bd. of Appeals, 228 AD2d 511; Cassano v Zoning Bd. of Appeals, supra , 202 AD2d 674, 675).

The intention and goal of the Town Board of the Respondent TOWN OF BROOKHAVEN was certainly admirable, but the answer is not to reverse, confuse, contort or otherwise confuse the proper planning and zoning process, but rather to address their legitimate concerns through the process of their appointments to both the Zoning Board of Appeals and the Planning Board with individuals who they believe will conduct themselves in the manner necessary to address those concerns.

For all the reasons stated herein above, it is, therefore,

ORDERED, that the application of Petitioner for an Order, pursuant to Article 78 of the CPLR, granting the relief demanded in the Petition, that relief more specifically being an Order of this Court directing:

1.That the Decision of Respondent PLANNING BOARD be found to be arbitrary, capricious and not in keeping with the evidence;

2.That the Findings of Respondent PLANNING BOARD were not made at a Public Hearing;

3.That the Decision of the Zoning Board of Appeals of the Respondent TOWN OF BROOKHAVEN, pursuant to the new procedure created by the Respondent TOWN OF BROOKHAVEN, be annulled and set aside;

4.That the application of Petitioner before the Respondent PLANNING BOARD be approved; and

5.That a decision be rendered as to the application of Petitioner before the Zoning Board of Appeals of the Respondent TOWN OF BROOKHAVEN:

is hereby granted to the extent that the decision of Respondent PLANNING BOARD is hereby be found to be arbitrary, capricious and not in keeping with the evidence, and the matter is hereby remanded to the Respondent TOWN OF BROOKHAVEN for proper review and determination, in compliance with the Laws of the State of New York, as set forth herein above.

Dated:Riverhead, New York

August 14, 2006________________________

HON. JEFFREY ARLEN SPINNER, J.S.C. [*9]