Matter of Quinn v Trotta

[*1] Matter of Quinn v Trotta 2004 NY Slip Op 51696(U) Decided on October 15, 2004 Supreme Court, Suffolk County Mullen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2004
Supreme Court, Suffolk County

In the Matter of the Application of PETER QUINN, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules

against

FRANK C. TROTTA, Chairman, MARVIN L. COLSON, GRACE M. COPPES, PAUL M. DeCHANCE, LOUIS J. GALLO, JR., and THEODORE RICKMAN, constituting the Zoning Board of Appeals of the Town of Brookhaven, Respondents



10145/04



PETITIONER'S ATTY:

SCHEYER & JELLENIK

By: Richard I. Scheyer, Esq.

110 Lake Avenue South, Suite 46

Nesconset, NY 11767

RESPONDENT'S ATTY:

KAREN M. WILUTIS,

Brookhaven Town Attorney

By: Courtney L. Blakeslee,

Assistant Town Attorney

1 Independence Hill

Farmingville, NY 11738

Michael F. Mullen, J.

This is an Article 78 proceeding in which the petitioner Peter Quinn seeks to set aside (or [*2]modify) a determination of the respondent Zoning Board of Appeals of the Town of Brookhaven ("ZBA") dated April 19, 2004. The twist here is that the ZBA actually granted the petitioner's application which sought to divide a certain parcel located in the hamlet of Brookhaven into two plots, both of which required area variances. But petitioner argues that the relief granted was not exactly the relief requested, and therefore the ZBA, in effect, denied the application.

The property in question here is one which might be described as a "back to back" split, i.e., two separate parcels in common ownership which have frontage on two parallel streets and a common rear boundary (see, Matter of Guazzo et al. v Chave, et al., 59 Misc 2d 1050). One of the parcels is improved with a one family home. Petitioner seeks to build a home on the other. One of the problems is that both parcels would require area variances. The one containing the one family dwelling requires lot area and lot frontage variances, and the other (on which petitioner seeks to build) requires lot area, lot frontage, front yard setback, rear yard, and minimum and total side yard variances.

At the public hearing held on April 14, 2004, a report prepared by the Town's Department of Planning, Environment and Development ("PED") was read into the record. It noted, first, that no significant environmental impact was anticipated by the application and therefore a negative SEQRA declaration was recommended. It noted too that the property was located in an A-1 residence zone, requiring 40,000 square feet, while the proposed lots were approximately 20,500 and 10,000 square feet respectively.

The property was located at the corner of two Town right of ways - one improved and maintained by the Town (Bay Avenue) and the other (Second Street) unimproved. The property had enjoyed access to Second Street without Town approval. The property also fronted on a third right of way, known as Grange Street. Grange Street was unimproved and substandard. PED felt that ingress and egress to Grange Street should be prohibited. PED further recommended that the proposed lots be reconfigured to create one lot measuring 107' x 100', and a second measuring 100' x 200', approximately. This would be consistent with the existing development further to the east along Second Street. This reconfiguration would establish a new rear yard adjacent to and consistent with the existing surrounding lots.

The PED report went on to note that the proposed subdivision did not conform to the surrounding development pattern nor to the Suffolk County Department of Health Services ("SCDHS") minimum lot area requirements.

The report concluded by stating that if the ZBA decided to approve the application, PED was recommending that fourteen (14) specific "mitigation measures" be required. [*3]

The petitioner's representative at the hearing, in response to the PED report, and, in particular, to the recommendation of "changing the lot configuration of the property," made it clear to the ZBA that petitioner would not go along, and that he was "going to proceed with the application as it is before you."

The petitioner called no witnesses at the hearing, expert or otherwise. The several people who did come forward were all people from the neighborhood who opposed the application. They argued, inter alia, that granting the application, as submitted, would destroy the "privacy and the ambiance" of the area, and would not be in "conformity" with the neighborhood.

Five days after the hearing, on April 19th, the ZBA issued a determination which granted petitioner's application to divide the parcel into two plots, (and thereby granted the area variances which each of the lots required), subject, inter alia, "...to all recommendations..." of the PED.

Petitioner argues that although the ZBA described what it did as a "grant" of the relief sought, it was in fact a "denial." He claims he asked for a north-south subdivision but the ZBA granted an east-west subdivision instead.

It may be true that the ZBA did not give petitioner exactly what he wanted in this case, but that's not the test which a court must apply in reviewing a zoning board decision. Local zoning boards, as has been often stated, have broad discretion in considering applications for area variances, and judicial review is limited to determining whether the board's action was illegal, arbitrary or an abuse of discretion. A determination must be upheld if it has a rational basis and is supported by substantial evidence (see, Matter of Ifrak v Utschig, 98 NY2d 304, 308; see also, Matter of 550 Halstead Corp. v Zoning Board of Appeals of Harrison, et al., 307 AD2d 291, affd. 1 NY3d 561).

Under the circumstances of this case, and upon the facts as developed at the hearing and in this record, there is no reason for this Court to substitute its judgment for that of the ZBA. First of all, the ZBA granted the variances, so petitioner was allowed to split the one parcel into two and build on the second. The variances were not unsubstantial. The PED concluded that unless the split sought by petitioner was reconfigured, at least two things would happen: (1) ingress and egress to the property would be to Grange Street which was a 25' wide, unimproved, substandard right of way; and (2) a new rear yard would be created which was not consistent with the existing surrounding lots.

In other words, there was a rational basis for what the ZBA did here.

The petition should be denied, and the proceeding dismissed. [*4]

The foregoing constitutes the decision and judgement of the Court.

DATED: HON. MICHAEL F. MULLEN, J.S.C.