Matter of Meyerowitz v Wright

[*1] Matter of Meyerowitz v Wright 2009 NY Slip Op 51444(U) [24 Misc 3d 1213(A)] Decided on July 8, 2009 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2009
Supreme Court, Nassau County

In the Matter of the Application of Mark Meyerowitz and Karen Meyerowitz, Petitioners, For Judgment pursuant to Article 78 Civil Practice Law and Rules,

against

Gerald G. Wright, Chairman, Robert W. O'Brien, Christian Browne, Douglas C. Diana, David W. McAndrews, Katuria D'Amato and David Weiss, constituting the Board of Appeals of the Town of Hempstead, and Felice J. Muraca, Respondents.



014521/08



Petitioners' Counsel:

Goldstein & Avrutine, Esqs.

575 Underhill Blvd.

Syosset, NY 11791

(516) 677-9400

Respondent Muraca's counsel:

Gail M. Blasie, Esq.

114 Old Country Road

Mineola, NY 11501

(516) 739-3322

Respondent ZBA's Counsel:

Joseph Ra, Esq.

Hempstead Town Hall Hempstead, NY 11550

(516) 489-5000

Randy Sue Marber, J.

This proceeding, commenced pursuant to CPLR Article 78 by the Petitioners, Mark Meyerowitz and Karen Meyerowitz, seeks a judgment setting aside and annulling a determination of the Respondent, Board of Appeals of the Town of Hempstead, dated June 12, 2008, which, inter alia, granted with stated conditions, an application by the Respondent, Felice J. Muraca, (hereinafter referred to as "Muraca")for a variance authorizing the maintenance of an existing rear yard fence exceeding six feet in height.

The Petitioners and Muraca, own adjoining, single-family residences whose back yards, in materially varying degrees, abut directly onto Merrick Bay (Blasie Aff., Exh., 2; Pet.,¶¶ 3-8).

The parties have previously been embroiled in a contentious dispute and recently concluded litigation with respect to the precise scope of their riparian rights and access to the bay from their adjoining parcels (e.g., Muraca v. Meyerowitz 13 Misc 3d 348 [Supreme Court, Nassau County 2006] see also, Muraca v. Meyerowitz, 49 AD3d 697).

The record reveals that the western perimeter of Muraca's parcel, which extends for some 63 linear feet, is waterfront in nature, while the contiguous and unusually configured parcel of the Petitioners possesses only ten to fifteen feet of rear-yard, shore front property (Blasie Aff., Exh., 2).

In 2004, when Muraca purchased his home, there was already present a six-foot fence which had been installed along most, but not all, of the parties' north to south property line in a westerly direction towards Merrick Bay (see, Hearing Transcript Tr., ["Tr"] 103-104, 154-156; Blasie Aff., ¶¶ 5-8).

In 2007, Muraca applied for and obtained, permits from both the Army Corp of Engineers and the New York State Department of Environmental Conservation ["DEC"] allowing him to install a new bulkhead at the rear of his property, which was approximately three feet, three inches higher than his original bulkhead (Blasie Aff., ¶¶ 9-13, Exh.,"3" Tr., 172-173).

According to Muraca, a significant number of waterfront landowners in the area had similarly constructed elevated bulkheads and installed fences on those newly added structures, including the Meyerowitz' adjacent neighbor to the southwest, who apparently obtained a variance and installed a fence atop a five-foot, DEC-approved bulkhead (Tr., at 115,178, 229-230).

In June of 2007, Muraca submitted an application for permission to install an in-ground swimming pool. At the same time, Muraca also requested a variance to install and/or maintain, portions of the existing, six-foot property line fence, which was to be fully extended to the water and installed at that location atop his new bulkhead (Blasie Aff., Exh., "4").

The variance was required since, when the six-foot fence was placed on the new bulkhead, it was six-foot, eleven inches in height, as measured from the "crown" of the nearby road, thereby exceeding the Code permitted, six-foot height limit for fences enclosing certain rear yards (see, Town of Hempstead, Building Code Ordinance ["Code"], Article IV, § A[27]). Apparently, the Petitioners' property slopes downward along the fence line toward the parties' respective waterfront bulkheads, at which point the Petitioners' grade is approximately four feet lower than Muraca's adjoining property (Tr., at 156-157).

According to the Petitioners, the portion of the Muraca fence which extends to the water at [*2]the bulkhead, obstructs their first-floor, kitchen and ground level view of the bay toward the northwest (Blasie Exh., "2"). There is no dispute, however, that the Meyerowitz' view of the bay remains unobstructed from the second floor of their home (Tr., 205, 210, 216). Significantly, because of the lot configuration and orientation of the Petitioners' home, their visual corridor to the water is aligned primarily over and through the Muraca's adjoining property to the northwest (Tr., 143, 199, 205).

A hearing on the Muraca application was conducted before the Respondent, Board of Appeals, during which the parties and their respective attorneys submitted extensive pictorial evidence and engaged in factual colloquy bearing upon virtually every facet of the proposed application. Notably, the record establishes that certain Board members also inspected the site and, inter alia, took measurements of the pre-existing property-line fence, which at certain points apparently also exceeded six feet in height (Tr., at 123, 154, 172).

At the hearing, a key issue over which the parties were in conflict was precisely how, and from where, the Code permitted, six-foot fence height should be measured. The Petitioners argued that, as a matter of law and in all cases, the fence height should be measured from the immediately adjacent grade level on their side of the property line, which, as noted above, was some four feet lower than the corresponding grade on Muraca's side of property (Tr., at 150-152). According to Muraca, however, the proper location from which the measurement should be made was the "crown" of the adjacent road, which, when applied at bar, would require a variance of only approximately 11 inches. The difference is material, since upon applying the Petitioners' "adjoining property" theory, the fence height would be measured from their lower adjoining grade, thereby limiting Muraca, absent a variance, to a two-foot, as-of-right fence enclosure at that point (Pet., ¶¶ 9-11).

The Code itself generally provides that fences erected on corner properties and/or on other lots in proximity to roads and highways are to be measured from the center elevation or "crown" of the adjacent roadway (see e.g., Code, Article XXXI, §§ 311-312[E],[F] Article I, § 1 ["definitions * * * building height * * * structures"] see also, Article I, § 2 cf., Art, XIV, § 166[A]). However, the Code does not expressly identify the grade location from which the subject, rear-yard fence height is to be measured (Tr., 144-145).

During colloquy relating to the fence height issue, one Board member questioned the Petitioners' counsel about the potentially anomalous consequences which could result upon rigidly applying the petitioners' theory, particularly where adjoining parcels have significant grade differentials at varying points. Counsel replied that there could indeed be an "anomaly to a degree" in such cases, but that the "adjoining grade" method was nevertheless the proper rule to apply "regardless of the conditions" (Tr., 150-153). Later, after hearing the parties' opposing claims concerning the issue, the same Board member ultimately commented that "there is no one rule that fits all scenarios that come before us," to which the Petitioners' counsel replied, "[u]nderstood" (Tr., at 152, 183).

The Petitioners also called a real estate consultant who concluded, in sum, that the Muraca fence would decrease the value of the Petitioners' home by virtue of the first floor, water view obstruction (Tr., 188-223).

However, and prior to testifying, the consultant informed the Board that he actually did "not appraise[ ]the [subject] property;" nor was he acting as an "objective appraiser", but rather, he appeared as an consultant/advocate who would not be "issuing any defined valuations" (Tr., at 192, [*3]201-202). The consultant also apprised the Board that the Petitioners were currently serving as accountants for his firm (Tr., 191).

With respect to his valuation opinion, the Petitioners' expert calculated the alleged loss in value by comparing "non-water" view properties with those possessing water views, and then adjusting that amount (an alleged 15-40% price differential), by factoring in the projected value of the remaining, second floor water view (Tr., 200-201, 205-206; 217). Upon so doing, the consultant concluded that the property would decrease in value by approximately 10-15% (at least $80,000.00), if the Muraca fence were to be installed and/or maintained as proposed (Tr., 206-207).

By decision dated June 12, 2008, the Respondent Board granted the Muraca application, with stated conditions, thereby authorizing the maintenance/installation of the proposed, six-foot fence extending to its waterfront terminus atop Muraca's newly elevated bulkhead (Blasie Aff., Exh., "5").

More particularly, the Board's decision provides, inter alia, that the DEC-approved bulkhead or "whaler" elevation was some 11 inches above the crown of the road; that Muraca would be permitted to install the six-foot fence on the new bulkhead; but that all other portions of the enclosing fence were not to exceed a height of six feet, as measured from grade level of the foregoing bulkhead and/or "whaler" (Decision, ¶¶ 3-4).

In August 2008, the Petitioners commenced the within proceeding to set aside and annul the Board's determination, alleging that the decision rendered was arbitrary and capricious (Pet.,¶¶ 13-17). The matter is now before the Court for review and resolution. The Board's determination should be confirmed.

Local zoning boards possess broad discretion in considering applications for area variances and "judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion" (Matter of Ifrah v. Utschig, 98 NY2d 304, 308 [2002]see, Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Benjamin Salzano v. Zoning Board of Town of Wallkill, ___A.D.3d___, 2009 WL 1636280 [2nd Dept. 2009]; FNR Home Const. Corp. v. Downs, 57 AD3d 540, 541-542).

Since "[t]he judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them" (Matter of Cowan v. Kern, 41 NY2d 591, 599 [1977]; Muth v. Scheyer, 51 AD3d 799), determinations rationally supported by evidence in the record must be sustained (see, Pecoraro v. Board of Appeals of Town of Hempstead, supra ; Matter of Sasso v. Osgood, 86 NY2d 374, 384 [1997]; Foti v. Town of East Hampton, New York, Zoning Board of Appeals, 60 AD3d 1057, 1058; Muth v. Scheyer, supra ).

Moreover, "[i]n determining whether to grant an area variance, a zoning board of appeals is required to weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted" (see, Town Law § 267-b[3][b]; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra , at 612; Matter of Ifrah v. Utschig, supra , at 98; Tsunis v. Zoning Bd. of Appeals of Inc. Village of Poquott, 59 AD3d 726; FNR Home Const. Corp. v. Downs, supra ).

Based upon the principles stated above, this Court finds that the Board of Appeal's determination is both rationally based upon evidence in the record and appropriately balances the "benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted" (Foti v. Town of East Hampton, New York, Zoning Board of Appeals, supra see, Matter of Ifrah v. Utschig, supra ; Vette Realty, Inc. v. Board of Appeals of [*4]Village of Valley Stream, 51 AD3d 938; North Shore F.C.P., Inc. v. Mammina, 22 AD3d 759, 760).

The Court notes that throughout the hearing, the Board engaged in a thorough and comprehensive colloquy with both parties' counsel and the parties themselves, during which key factual and legal components of the proposed application were discussed, including the petitioners' valuation evidence and the disputed, interpretive issue involving how the six-foot height provision should be applied.

The factual record further supports the conclusions that, inter alia, a six-foot fence had already been installed on the parties' property line; that the Muraca fence, as proposed, would be aesthetically and structurally consistent with the height of that existing fence; that placing the fence atop the DEC approved bulkhead would generally conform with fences installed on other, newly elevated bulkheads; and that Muraca was installing an in-ground swimming pool, thereby injecting safety concerns into the fence/height calculus. The record also supports the inference that the Petitioners acquired their uniquely configured property with the knowledge that portions of their waterfront view extended over and across the adjoining Muraca parcel, and that certain changes or alterations could be made which might later affect that waterfront vista (cf., FNR Home Const. Corp. v. Downs, supra , 57 AD3d at 542)(Tr., 181-182; 211- 212).

The Board was not required to adopt the Petitioners' inflexible construction of how the Code imposed height restriction should be measured, i.e., that in all cases, and regardless of the attendant facts or the anomalous results which might ensue, the six-foot height limit was to be measured from an adjoining property's owner's grade (Tr. at 150-152). As established at the hearing, application of the Petitioners' theory would limit Muraca to a two-foot, as-of-right fence enclosure in a pool installation scenario, and presumably link permissible fence heights to varying grade height differentials along the parties' existing property line.

Indeed, there is no Code provision which expressly addresses how the six-foot, fence height should be measured, thereby relegating resolution of the issue to the rationally exercised, "common sense" judgment of the Board members, who in general "possess the familiarity with local conditions necessary to make * * *sensitive planning decisions which affect the development of their community" (Cowan v. Kern, supra , at 599;Thirty West Park Corp. v. Zoning Bd. of Appeals of City of Long Beach, 43 AD3d 1068, 1069 see also, North Shore F.C.P., Inc. v. Mammina, supra ). It is well settled that a zoning board's interpretation of its zoning ordinance is entitled to great deference (Matter of Toys "R" Us v. Silva, 89 NY2d 411, 418-419 [1996]; Ferraris v. Zoning Bd. of Appeals of Village of Southampton, 7 AD3d 710 cf., J & M Harriman Holding Corp. v. Zoning Bd. of Appeals of Village of Harriman, 62 AD3d 705). It bears noting that insofar as analogous, fence-height criteria if referenced at all in the Code, those provisions generally refer to measurement from the crown or "existing elevation of the center line" of an adjacent roadway (e.g., Code, Article XXXI, §§ 311-312[E],[F]).

The Petitioners' reliance upon a previously issued 2002 zoning board determination which, in that specific matter, applied the petitioners' adjoining grade theory is misplaced, since the operative factual circumstances, and thus "the foreseeable impacts" of the two proposals, are dissimilar (North Shore F.C.P., Inc. v. Mammina, supra see also, Foti v. Town of East Hampton, New York, Zoning Board of Appeals, supra ; Muth v. Scheyer, supra , 51 AD3d 799, 800; Fagan v. Colson, 49 AD3d 877, 878 see also, Berk v. McMahon, 29 AD3d 902, 903).

The Court notes that the parties devoted extensive colloquy to the applicability and relevance [*5]of the 2002 decision, which did not involve a swimming pool. Accordingly, the Board was well aware of its import and appropriately agreed to give it the weight to which it was entitled, based upon the particular facts before it (Tr., at 144-153; 156).

Nor was the Board required to credit the theories offered by the Petitioners' consultant, particularly since the value claims he made were extrapolated in attenuated fashion from property exemplars which did not involve the unique, partial water view circumstance actually at issue here. Notably, expert testimony is not necessarily required to support a zoning board's determination (Matter of Ifrah v. Utschig, supra , at 308).

Lastly, while the determination issued by the Zoning Board of Appeals is not factually detailed, the record evidence nevertheless establishes that "the decision to grant the variance had a rational basis" (Fischer v. Markowitz, 166 AD2d 444, 445; Buitenkant v. Robohm, 122 AD2d 791 see also, Ohrenstein v. Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1043).

The Court has considered the Petitioners' remaining contentions and concludes that they are lacking in merit.

Accordingly, it is hereby

ORDERED, that the determination of the Respondent, Zoning Board of Appeals, is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

This constitutes the decision and order of this court.

DATED:Mineola, New York

July 8, 2009

________________________________

Hon. Randy Sue Marber, J.S.C.

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