Matter of Little v Bean

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[*1] Matter of Little v Bean 2004 NY Slip Op 51831(U) Decided on November 19, 2004 Supreme Court, Suffolk County Sgroi, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
Supreme Court, Suffolk County

In the Matter of the Application of TODD & SHERYL LITTLE, Petitioners, for a Final Judgment reversing and setting aside the decision of the Zoning Board of Appeals of the Village of Westhampton Beach,

against

CHRISTOPHER BEAN, GERARD PIERING, PATRICIA STINCHI, MICHAEL O'ROURKE and JOHN WITTSCHEN, as and constituting The Zoning Board of Appeals of the Village of Westhampton Beach, Respondents



04-04414



Attorneys for Petitioner:

Kelly & Hume, Esqs.

323 Mill Road

Westhampton Beach, New York 11978

Attorney for Respondent:

Richard T. Haefeli, Esq.

48F Main Street, P.O. Box 1112

Westhampton Beach, New York 11978-7122

Sandra L. Sgroi, J.

This is a Petition for an judgment granting the following relief:

1. Pursuant to CPLR Article 78, annulling, reversing and setting aside the decision of [*2]the respondents dated January 15, 2004, which denied the petitioners' application for an area variance to allow a second story addition built without permits to remain.

2. Granting the application for the interpretation or variance requested.

3. Granting such other and further relief as this Court deems just and proper.

Respondents oppose the Petition.

Upon consideration of the papers submitted in support of and in opposition to the requested relief, it is

ORDERED that the Petition for relief is decided as follows:

ORDERED that the request for a judgment annulling, reversing and setting aside the decision of the respondents dated January 15, 2004, which denied the petitioners' application for an area variance to allow a second story addition built without permits to remain and for an order granting the application for the interpretation or variance requested is denied in all respects for the reasons set forth below:

Petitioners are the owners of an improved parcel of real property located on the north side of Dune Road on a street known as Harbor Road in the Village of Westhampton Beach in an area known as Pond Point. (See Exhibits "A" and "I" of the Return). When the property was improved with a one family dwelling in 1978 the property was in the R-3 Zoning District which encompassed all of Dune Road and required a minimum lot area of 20,000 square feet. The lot area of the petitioners' property was 6,406 square feet and variances were required in order for the property to be developed. (See Exhibits "Q", "R" and"S" of the Return).

In 1983 the Board of Trustees of the Village of Westhampton Beach adopted a new R-5 zoning classification applicable only to Pond Point which substantially reduced the lot area and other area requirements. Prior to the rezoning the Board of Trustees conducted a study of the area, which they adopted in their legislative findings.

The Board of Trustees found the following:

(1) of the 128 lots which comprise Pond Point, the average lot area was 6,700 square feet and the lots ranged in size from 1,600 square feet to 16,000 square feet;

(2) there were only three vacant lots that could be developed;

(3) the lot coverage on the improved lots was greater than 15% of the lot area on 84% of the lots and greater than 25% of the lot area on 33% of the lots;

(4) substantially all of the dwellings were one-story with some being raised on pilings to avoid flooding;

(5) it was almost impossible to apply the prior R-3 dimensional requirements to this area;

(6) the area was subject to substantial flooding;

(7) the height limitation of 20 feet was adopted to preserve the existing harmony [*3]of structures within the area, subject only to the permitted raising of structures to comply with flood plain regulations. (See Exhibits "H", "I" and "T" of the Return).

At a hearing before the respondent Zoning Board on August 21, 2003, the petitioners' attorney represented that in 2002 a local architect was hired to design a small second story addition to petitioners' home and a builder was hired to do the work. (See Exhibit "E" of the Return). The builder never obtained required permits and commenced construction which exceeded the code compliant plans. Before completing the project the builder's license was revoked and he disappeared, leaving the addition partially constructed. Petitioners' attorney presented some evidence to the Board indicating that petitioners' immediate neighbors did not object to the application. (See Exhibit "M" of the Return)

At a subsequent hearing before the respondent Zoning Board held on November 20, 2003, the petitioners, through their attorney, reiterated what was set forth at the prior hearing and confirmed that the builder constructed an addition larger than the one shown on the proposed architectural plans and encroached into the required rear yard. (See Exhibit "G" of the Return).



At said hearing the petitioners' architect, Nicholas Vero, testified that in 2002 he met with the petitioners and presented them with a code compliant plan for an addition to the residence and that the petitioners were aware of the limitations on permitted construction. The architect testified that he visited the subject property in July of 2002 and found that the builder had started the work without a permit and had not complied with his proposed plans. He testified that the petitioners had hired a second contractor who completed the unauthorized construction by rectifying the modifications which were not built to code. He testified that following this construction, the petitioners applied for a building permit, received a denial and filed for a variance. Mr. Vero testified it would cost approximately $20,000 to restore the house to its condition prior to the construction of the addition. (See Exhibit "G" of the Return).

Todd Little, one of the petitioners herein, testified that he relied upon the contractor to obtain a building permit and that he had commenced litigation against the builder. He testified that the unauthorized addition was only five feet. However, this was contradicted by Mr. Vero, who testified that the unauthorized addition was, in fact, ten feet. Mr. Little testified that the builder gave him a flat price, that he was not charged anything in addition for the construction of the additional area and that the builder acted in "unorthodox manner". Petitioners' counsel, Mr. Hulme, represented that the builder went out of business and did not complete the construction and that a stop work order had been issued by the village due to violations of Code requirements. (See Exhibit "G" of the Return).

Paul Houlihan, a Village building inspector, testified that at the time the stop work order was issued on October 24, 2002, the roof shingles had not been installed and, additionally, a structural header was needed in order to avoid leaks and other damage to the house and the petitioners were permitted to do such limited work for that sole purpose. (See Exhibit "G" of the Return). In an affidavit dated April 14, 2004, Mr. Houlihan submits that he inspected the property in or around March of 2004, and found that the petitioners had violated the stop work [*4]order and had installed sheet rock and electrical outlets in the interior of the addition. He further notes that the petitioners did not apply for relief until some eight months after the stop work order was issued.

In accordance with its routine practice, prior to making a decision on the application, the members of the Zoning Board visited the subject property. During the course of the inspection it was noted that the roof deck built at 22 feet gave a panoramic view of Moriches Bay in all directions, which would not have been available had the structure been in compliance with the height limitation of twenty feet. (See Exhibit "H" of the Return).



On January 15, 2004, the Zoning Board denied the petitioners' application by unanimous vote. In a comprehensive and detailed decision, the Board found, among other things that "(1) the applicants were made aware of the zoning restrictions by their architect prior to the commencement of any work, (2) as is the case with all other property owners who have work performed on their property, they had an obligation to insure that a building permit was issued prior to the commencement of the work, (3) ensuring that there was a building permit issued before work was commenced was especially important in this case since the applicants knew and acknowledged that the builder did things in an unorthodox manner, (4) they had an obligation to ensure that the builder complied with the plans, not only because the builder did things in an unorthodox manner, but also because of the fact, as they testified, the builder did not charge them anything for the extra work".

Based upon the totality of the testimony presented by the applicants, the Zoning Board found that " (1) the failure to obtain a building permit was due to the applicants' failure to properly supervise their builder; (2) the applicants received the benefit of this work done without a permit, including having a roof deck with a panoramic view of Moriches Bay, which benefit they would not have had if the Code were complied with; and (3) according to their testimony, they had an area constructed in excess of that shown on the plans without being charged for all of the work". (See Exhibit "H" of the Return).

The Zoning Board also considered the benefit to the petitioners as weighed against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted and found " (a) that the proposed rear yard and height variances will adversely affect the character of the area, (b) that they are in direct conflict with the legislative findings of the Board of Trustees when the Pond Point regulations were adopted, (c) that the character of the area which the Board of Trustees found in 1983 when they adopted the regulations was essentially one story dwellings is the same today as it was in 1983 and that the construction of a two-story dwelling is out of character for the area (d) the applicants' own testimony established that they could construct an addition and comply with the Zoning Code and that the variances are required because the applicants failed to obtain a building permit prior to the commencement of construction and failed to properly supervise their builder. The failure to obtain a building permit and to properly supervise their builder benefitted the applicants in that they obtained an additional area at no cost and obtained an unobstructed panoramic view of Moriches Bay, (e) the [*5]variances sought are substantial, (f) the variances will adversely affect the environmental conditions in the area in that they will substantially alter the character of the area and (g) the difficulty is self created in that the applicants acted in a manner inconsistent with the Codes of the Village of Westhampton Beach. The applicants knew of the limitations imposed by the Zoning Code prior to undertaking the work. They failed to obtain a building permit and failed to adequately supervise their builder, not only to ensure that he obtained the necessary building permit, but also to ensure that the addition was constructed in accordance with provisions of the Code and the plans prepared by their architect". (See Exhibits "H" and "I" of the Return).

The respondent Zoning Board also noted in their decision that a second application in the prior twelve months requesting variance relief for the construction of an illegal addition without a building permit in the Pond Point R-5 Zoning District had been denied by the Zoning Board. (See Exhibits "H" and "I" of the Return).

Based upon all of the foregoing, the petitioners' application for a variance was denied and they were directed to immediately remove the illegal additions.

Local zoning boards have broad discretion in considering applications for variances and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion (Ifrah v. Utschig, 98 NY2d 304, 746 N.Y.S.2d 667 [2002]; Westervelt v. Zoning Board of Appeals of the Town of Woodbury, 7 AD3d 632, 776 N.Y.S.2d 487 [2nd Dept. 2004]). A determination of a local zoning board regarding an application for a variance should be sustained if it has a rational basis and is supported by substantial evidence in the record. (Ceballos v. Zoning Board of Appeals of Town of Mount Pleasant, 304 AD2d 575, 758 N.Y.S.2d 139 [2nd Dept. 2003]; Ifrah v. Utschig, supra).

In determining whether to grant an area variance, a zoning board of appeals 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 variance is granted (Matter of Sasso v. Osgood, 86 NY2d 374, 633 N.Y.S.2d 259 [1995]; Milburn Homes v. Trotta, 7 AD3d 531, 776 N.Y.S.2d 312 [2nd Dept. 2004]). The zoning board is also required to consider whether (1) 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) the benefit sought by the applicant can be achieved by some other method other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created (Village Law §7-712-b(3); Scimone v. Humenik, 1 AD3d 370, 766 N.Y.S.2d 875 [2nd Dept. 2003]) .

The Court finds that, contrary to the claims of petitioners, the respondent Zoning Board of Appeals thoroughly engaged in the "balancing test" required by statute and appropriately weighed each of the factors contained therein in making their findings. These findings are supported by substantial evidence in the record. The variances are substantial and adversely affect the character of the neighborhood in that they directly conflict with the purposes of the [*6]creation of the R-5 Zoning District. The character of the area is that of relatively small lots containing fairly small houses which do not exceed 20 feet in height. To grant these variances would be to undermine the Village's basis for the 1983 rezoning.

The petitioners can obtain the benefits sought, including a roof deck, by building an addition in accordance with their architect's plan, which was compliant with the Village Zoning Code. Petitioners' difficulties are self-created on several levels. Petitioners failed to properly supervise their builder, failed to obtain a building permit and, despite being advised by their architect of limitations imposed by the Zoning Code, they allowed their builder to build an addition far in excess of the size contained in the architect's plan. It is difficult to accept the assertion that the additional area was unplanned when the unauthorized roof deck at a height of 22 feet provides a panoramic view of Moriches Bay while one complying with the Code limit of 20 feet would not. Petitioners exacerbated their self-created difficulties by violating the stop work order issued by the Village and continuing work on the interior of the addition. It is noted that while the petitioners testified as to the purported cost of removing the unauthorized addition, they presented no testimony as to the cost of reducing the size of the addition to that of their architect's Code compliant plan.

Finally, the Zoning Board adhered to its prior precedent, having placed in the record the fact that it had, less than a year before, denied an application to retain an illegal addition in the same R-5 Zoning District.

Based upon the foregoing, the Court finds that petitioners have failed to establish that the respondent Zoning Board's decision in this matter was illegal, arbitrary or an abuse of discretion and did not have a rational basis supported by substantial evidence in the record and, therefore, the petition is dismissed and the relief requested therein is denied in its entirety.

Counsel for respondents is directed to serve a copy of this order, by overnight mail, within twenty (20) days of the date hereof upon counsel for the petitioners.

The foregoing shall constitute the Order of the Court.



Dated: November 19, 2004 _________________________

Central Islip, New York SANDRA L. SGROI,

J.S.C.

 

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