Matter of Greco v Fischer

[*1] Matter of Greco v Fischer 2006 NY Slip Op 51846(U) [13 Misc 3d 1216(A)] Decided on September 25, 2006 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2006
Supreme Court, Suffolk County

In the Matter of the Application of Joseph C. Greco and Karla M. Greco, his wife, Petitioners, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,

against

Jeffrey Fischer, Chairman, Ronald Deboer, Kathleen Diana, Kevin Seaman, and Dana Bradshaw, constituting the Zoning Board of Appeals of the Village of Head of the Harbor, Suffolk County, New York, Respondents.



14299-2006



Attorney of Plaintiff

Donald J. King, Esq.

75 East Main Street

P.O. Box 304

Kings Park, New York 11754

Attorney of Defendant

Anthony B. Tohill, P.C.

12 First Street

Box 1330

Riverhead, New York 11901

Emily Pines, J.

In this Article 78 proceeding, Petitioners seeks to annul the determination of the Respondents, JEFFREY FISCHER, Chairperson, RONALD DEBOER, KATHLEEN DIANA, KEVIN SEAMAN and DANA BRADSHAW, constituting [*2]the ZONING BOARD OF APPEALS OF THE VILLAGE OF HEAD OF THE HARBOR ("the Board") which denied Petitioners' request for a variance to maintain an existing six (6) foot fence on the front yard of their property. The application is opposed by the Board.

The Petitioners are the owners of a certain parcel of property which is located at 5 The Hunt, Head of the Harbor, New York (Suffolk County Tax Map No. 801 8-1-19.10) (the "subject premises"). The subject premises actually sits between two streets, The Hunt and Edgewood Avenue. It is located in the Village's "A" Residence District which require a minimum front yard setback of 100 feet for structures located in the front yard. Additionally, the subdivision map, the Map of Prince Farms, on which Petitioners' property is located contains a notation of "100 F.Y." from Edgewood Avenue, meaning that Edgewood Avenue is the front yard and that structures must be setback 100 feet therefrom.

Petitioners initially sought approval from the Village's Architectural Review Board for the six (6) foot, white PVC fence. That application was denied and moreover, the matter was referred to the Zoning Board upon a realization that a six (6) foot fence in the front yard was not permitted by the Zoning Code. Pursuant to the Village's Zoning Code, the maximum height of a fence in a front yard is four (4) feet. Village Code §165-28.

A hearing on Petitioners' application for a variance for the six (6) foot fence was held before the Board on May 15, 2006. Petitioners testified in support of their application that they acquired the subject premises in 2005 and did not realize that the fence required a variance because they believed Edgewood Avenue to be their rear yard, despite the notation on the aforementioned subdivision map. Moreover, they testified that they wanted the six (6) foot fence instead of the four (4) foot fence for safety concerns for their child and pets and to protect their privacy. Moreover, Petitioners stated that they wanted the fence as a barrier against the traffic on Edgewood Avenue and the noise and lights generated by the Suffolk County Water Authority facility located directly opposite the subject premises on Edgewood Avenue. Paul Athineos, a member of the Architectural Review Board also testified at the hearing. Mr. Athineos testified that the Architectural Review Board denied Petitioners' application for the fence because there was concern that it was commercial in appearance, that the reflective quality of the PVC could cause a glare on Edgewood Avenue at night and that it was not in keeping with the nature of the area.

By written determination dated May 18, 2006, the Board denied Petitioners' application. After reciting the arguments set forth by Petitioners at the hearing, the Board found as follows: The conditions which are alluded to by the applicants were clearly present in June of 2005 when the property was [*3]purchased; this is not a matter wherein the property owner was subjected to a change in conditions/circumstances such that non-Code prescribed requirements should be considered. Indeed, the precedental [sic] effect of permitting this "commercial type" fence spreading some 150 feet to exist would be a deleterious to the Village (a representative of the Architectural Review Board present at the hearing testified as to the basis for the A.R.B.'s rejection of the applicants style of fencing; he having made reference to the "commercial nature" of the fence situate within a residential neighborhood). The granting of the applicants' application would result in the creation of a different standard applied to the applicants' lot as opposed to the two neighboring property owners; the applicants' difficulty was self-created and, again, there are alternative measures that can be taken to achieve resolution of the concerns set forth by them. It is determined that there would be an undesirable change in the character of the neighborhood and there would be a detriment to nearby properties (which possess conforming fences) were this variance to be granted; the requested variance is substantial to the extent it seeks a 50% variance; and further, the extent of the non-conforming fence is substantial.Finally, it is determined by this Board that there would be a adverse effect on the physical conditions of the neighborhood if this six foot fence were to be allowed under the terms of the subject Code.

Petitioners then commenced the instant application by filing of a Notice of Petition and Petition on June 13, 2006 and issue was joined by the filing of respondents' Verified Answer and Return on July 21, 2006. Petitioners allege that the decision of the Board was arbitrary and capricious for several reasons. First, they argue that they and three of their neighbors have swimming pools and cabanas on that portion of the yard facing Edgewood Avenue without having obtained variances for these structures from the Board. Second, they assert that the Edgewood Avenue portion of their property is actually the rear yard, and not the front yard and therefore, they are permitted to erect a six (6) foot fence without any approvals. Further, they argue that the six foot fence would not change the nature and character of the area and that the variance requested is not substantial. In his Affirmation in support of the Petition, petitioners' counsel asserts that there were no findings of fact and conclusions of law in its decision and that petitioners' application should have been granted in that it met the criteria of Village Law §7-712(b)(3)(b).

In its Verified Answer, the Board sets forth several affirmative defenses, [*4]including but not limited to the following: that the subdivision map designates the Edgewood Avenue side of the subject premises as the front yard and establishes a 100 foot front yard setback requirement and that the Board is prohibited from modifying a condition imposed by the Planning Board; that Village Code §165-28 prohibits fences exceeding four (4) feet in height in the front yard; that petitioners did not satisfy the criteria of Village Law §7-712(b)(3); and that the decision of the Board was neither arbitrary nor capricious. Respondent Jeffrey Fischer, Chairman of the Board, submitted an Affidavit in opposition to the Petition. In his Affidavit, Chairman Fisher `explains that the swimming pools and cabanas referenced by petitioners on both the subject premises and adjoining properties are permitted by the Village Code because they are set back at least 100 feet from Edgewood Avenue. Additionally, with regard to petitioners' claim that the Edgewood Avenue portion of the property is actually the rear yard, he argues that petitioners are wholly ignoring the notation on the filed subdivision Map of Prince Farms, which establishes Edgewood Avenue as the front yard with a 100 foot setback. Thus, he argues that since the 100 foot front yard setback from Edgewood Avenue was established by the Planning Board, the Zoning Board is without authority to vary such condition.

Village Law §7-712(3) empowers the Board to grant area variances upon specified criteria. That section states:

(b)In making its determination, the zoning board of appeals shall take into consideration 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 by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect 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 the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Recently, the Second Department reiterated and articulated a standard for determining whether a zoning board determination is arbitrary and capricious. The Court stated that "In applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis. Under this standard, a [*5]determination should not be disturbed unless the record shows that the agency's action was arbitrary, unreasonable, irrational or indicative of bad faith. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.'" Halperin v. City of New Rochelle, 24 AD3d 768, 809 NYS2d 98 (2d Dept. 2005)(internal citations omitted).

In reaching a determination denying petitioners' application, the Board found that the commercial nature of this fence was not in keeping with the nature and character of the area and would set a negative precedent that would be adverse to the Village. The Board considered that the subject fence would cause and undesirable change in the nature and character of the neighborhood and a negative effect on neighboring properties that have conforming fences. The Board also recognized that petitioners' could construct a conforming fence without the necessity of Board approval and that any difficulty was self-created.

Given the facts of this case, this Court cannot find the Board's decision arbitrary and capricious or unsupported by substantial evidence. Ifrah v. Utschig, 98 AD2d 304, 746 NYS2d 667 (2002). Notwithstanding the argument of petitioners' counsel, the Board did actually set forth its findings of fact and conclusions of law and considered the statutory criteria of Village Law §7-712(3)(b). Accordingly, the petition is denied and the action is dismissed.

The foregoing constitutes the DECISION and JUDGMENT of the Court.

Dated: September 25, 2006

Riverhead, New York

Emily Pines

J. S. C.