Matter of Pantelidis v New York City Bd. of Stds. & Appeals

[*1] Matter of Pantelidis v New York City Bd. of Stds. & Appeals 2005 NY Slip Op 52249(U) [10 Misc 3d 1077(A)] Decided on December 23, 2005 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2005
Supreme Court, New York County

In the Matter of George Pantelidis, Petitioner,

against

New York City Board of Standards and Appeals and New York City Department of Buildings, Respondents, and Joseph E. Sheehan and Rose Sheehan, Intervenor-Respondents.



102563/03

Alice Schlesinger, J.

In name, this is an Article 78 proceeding by a landowner to annul a decision by the New York City Board of Standards and Appeals (BSA) which denied his application for an area variance. In fact, it is a dispute between two neighbors who reside on the Upper Eastside in Manhattan. The dispute, which has become quite protracted and costly, involves a two-story glass enclosed staircase for petitioner's house which protrudes into his rear yard about 6 feet more than permitted by as-of-right law. This decision is the third by this Court in this proceeding, but only one of several rendered in this proceeding and related proceedings by various courts extending to the Court of Appeals. The issue being determined herein, after a hearing, is "whether petitioner in erecting the disputed structure acted in good faith reliance' on the application, plans and permit approved by respondent New York City Department of Buildings." Pantelidis v. New York City Board of Standards and Appeals, 13 AD3d 342 (1st Dep't 2004). For the reasons stated below, this Court determines the issue in favor of the petitioner.

Background Facts and Procedural History

Petitioner George Pantelidis is the owner of a five-story townhouse located at 116 East [*2]73rd Street in Manhattan. (TR 99).[FN1] The building adjoins the neighboring buildings on both sides, and the westerly building numbered 114 is owned by respondent-intervenors Joseph and Rosa Sheehan. Pantelidis purchased the building in June of 1998 to use in part as a residence for his family, with the balance rented to various tenants. (TR 99-100). The family now occupies the second floor and part of the third. Until the construction at issue was completed, the only means for the Pantelidis family to go from the lower to the upper floor of their home was via the public staircase shared with the tenants and visitors. With the aid of an architect William Savino, Pantelidis applied to the New York City Department of Buildings (DOB) in September of 1998 to construct a glass-enclosed staircase at the rear of the building connecting the two floors for the family's use (Pet. 1).[FN2] According to Pantelidis, the design was inspired by a similar design a few houses down at 110 East 73rd Street (TR 127). Because the enclosure consisted of glass on a steel frame, it was referred to in various documents as a "greenhouse-type structure" or simply as a "greenhouse" (Pet. 3). The plans nevertheless showed, and it was understood by all parties including the Sheehan's architect, that the structure was intended to house a staircase rather than plants. (TR 464, 624).

The application and accompanying plans for the glass structure were approved by the DOB on February 3, 1999 (Pet. 4), a permit was issued on March 30, 1999 (Pet. 7), and construction was completed toward the end of 1999. However, throughout that time and continuing today, the family's right to maintain the staircase has been vigorously challenged by the Sheehans.[FN3] The details of that challenge at the DOB level are discussed more fully below in the review of the evidence adduced at the hearing.

The Pantelidis family had been using their staircase for well over a year when the Sheehans took certain steps which ultimately led to this litigation. The time to appeal the DOB's approval having long since expired, the Sheehans urged the DOB to reissue its approval so the statute of limitations would run anew. The Sheehans then could, and did, appeal the DOB approval to the Board of Standards and Appeals (BSA), the body which formally reviews actions by the DOB. The DOB appeared in the BSA proceeding and vigorously defended its approval of the Pantelidis application. In so doing, DOB Assistant General Counsel Mona Sehgal confirmed that the parties would not have been before the BSA but for the Sheehan's insistence and the DOB's acquiescence to their demand to reissue the approval with a new date. Specifically, in her March 20, 2001 letter to the BSA urging the Board to deny the Sheehan's appeal and uphold the DOB approval, Ms. Sehgal stated: "On December 28, 2000, then-Borough Commissioner Livian [*3]updated his approval without any changes to it for the purpose of enabling appellants [the Sheehans] to file the instant appeal." (Pet. 9).

Despite vigorous opposition by the DOB and Pantelidis, the Sheehans prevailed and the BSA revoked the DOB approval and permit. While the BSA in its decision did discuss the requirements for a "greenhouse", the focus of the decision was on the technical Zoning Resolution requirements relating to the minimum size for "rear yards" and "outer courts" as applied to the structure. (See BSA Resolution 31-01-A, dated April 27, 2001.) Pantelidis then commenced an Article 78 proceeding against the BSA and DOB, arguing that the revocation decision was arbitrary and capricious, and the Sheehans intervened. (Index No. 110531/01). By decision dated December 26, 2001, Justice Martin Shulman denied the petition and upheld the BSA revocation of the permit.

Now more than two years after the completion of the construction, and anxious to confirm its legality for his family's use, Pantelidis applied to the BSA for an area variance which would allow the glass-enclosed staircase to stand despite the BSA finding of technical noncompliance with certain dimensional requirements in the Zoning Resolution. Pantelidis argued, among other things, that he had relied in good faith on the then-valid permit to complete the construction. Again, the Sheehans intervened and opposed the application. The BSA denied the application by Resolution dated January 14, 2003, finding that it failed to meet the requirements of Zoning Resolution § 72-21, subd.(a), (b) and (d). Specifically, the BSA found that Pantelidis had failed to prove a "unique physical condition", financial hardship in connection with the removal of the staircase, and that any "practical difficulties or unnecessary hardship" were not self-created.

Pantelidis promptly commenced this Article 78 proceeding against the BSA and DOB, asserting that the BSA's denial of the area variance was arbitrary and capricious. Again, the Sheehans intervened. By decision and order dated July 21, 2003, this Court granted the petition to the extent of directing a hearing pursuant to CPLR 7804(h). Citing Jayne Estates, Inc. v. Raynor, 22 NY2d 317 (1968), this Court held that a hearing was required to determine whether Pantelidis had relied in good faith on a then-valid permit because the BSA had been required to consider any such good faith reliance when deciding the variance application, but did not.

The Sheehans moved to renew and reargue this Court's decision. The BSA supported the motion, and Pantelidis opposed. By decision dated September 19, 2003, this Court denied the motion. The Sheehans and the BSA appealed to the Appellate Division. By order dated December 21, 2004, the First Department unanimously affirmed both decisions by this Court, stating that:

Consideration of whether petitioner acted in good-faith reliance on a then-valid DOB permit in constructing a glass-enclosed stairwell at the rear of his building was relevant to determining if petitioner was entitled to a variance to allow the structure notwithstanding the post- construction revocation of the building permit (see Matter of Jayne Estates, Inc. v. Raynor, 22 NY2d 417 [1968]; Ellentuck v. Klein, 51 AD2d 964 [1976], appeal dismissed 39 NY2d 743 [1976], lv denied 39 NY2d 707 [1976]).

13 AD2d 242. The Appellate Division further found that this Court's decision to hold a hearing, rather than remand to the BSA to determine the issue, was "particularly appropriate." 13 AD2d [*4]at 243. Appellants' motion for leave to appeal to the Court of Appeals was denied. 4 NY3d 809 (2005).

Pantelidis Relied in Good Faith on the Then-Valid Permit

A review of the credible evidence adduced at the hearing supports this Court's finding that Pantelidis relied in good faith on a then-valid permit when he constructed the glass-enclosed stairwell at the rear of his building. The hearing spanned three days. In support of his case, Pantelidis testified at length. He called as witnesses the then-DOB Borough Commissioner Ron Livian, DOB Assistant General Counsel Mona Sehgal, and his architect William Savino. The BSA and the Sheehans called James Richardson (Rick) Adams, a construction consultant employed by Hunt Architects who had been retained by the Sheehans to assist in their efforts opposing the Pantelidis construction. In addition, they called Linna Hunt, an architect and the principal of Hunt Architects who had been retained by the Sheehans in the same capacity as Adams, who was her spouse. The Sheehans themselves did not testify at the hearing.

Ron Livian, the DOB Borough Commissioner during the relevant time, confirmed that the DOB had approved the application and plans for the glass structure on February 3, 1999, with a permit issued March 30, 1999. (TR 17, 20, 30). Throughout the extensive cross-examination by the two counsel for respondents, Livian remained steadfast in his opinion that the approval remained in place from that point in time and continuing throughout the construction in 1999 until the BSA revoked the permit in 2001. Indeed, Livian specifically stated on cross that: "Based on the laws that I'm aware of, yes, he [Pantelidis] was permitted to ... proceed with construction of the two-story greenhouse ... between March 30, 1999 and July 21, 1999," the period when the Sheehans were actively seeking to have the DOB revoke the permit. (TR 96). While the DOB did write a letter and meet with Pantelidis' architect during that period to address certain issues raised by the Sheehan's architect, the issues were consistently resolved to confirm the legality of the construction in the eyes of the DOB, Livian explained Thus, although Savino was asked to submit a form entitled "Additional Information" (referred to by the parties as a "Reconsideration") specifically addressing the "two-story greenhouse type construction," Livian reviewed it and wrote "OK TO ACCEPT 2 STORY GREENHOUSE..." (TR 39-40, Pet. 3). Similarly, Livian's July 12, 1999 letter, while referred to by the respondents as a "revocation letter", did not revoke the approval. (TR 38, Pet. 5). Rather, it requested revised plans to clarify certain issues raised by the Sheehans (TR 83), which Savino provided to satisfactorily resolve the issues. (TR 46). In sum, while clearly aware that the Sheehans were actively "seeking revocation of the approval" (TR 67), Livian on behalf of the DOB accepted the "greenhouse" concept early on and maintained the approval of the plans for the glass structure ultimately built (TR 55).

Pantelidis then credibly testified as to his understanding of his right to proceed with the glass-enclosed staircase from the point of DOB approval in early 1999 and throughout the period of construction. (TR 141-43). He acknowledged that issues had been raised and meetings held with the DOB both before and after the permit was issued, but, like Livian, Pantelidis testified that any issues were addressed to the satisfaction of the DOB so that work could proceed. (See, e.g., TR 159, 162).

Respondents' efforts to undermine Pantelidis' testimony were wholly unsuccessful. For example, despite repeated attempts by both counsel to have Pantelidis acknowledge that he had commenced construction of the "greenhouse" before the DOB had approved the plans, Pantelidis [*5]consistently testified to the contrary. For example, although renovations were being completed at the house before the permit was issued on March 30, 1999, that work was for internal work wholly unrelated to the extension and supported by a separate permit. (See, e.g., TR 188, 197). Sheehan's counsel attempted to impeach Pantelidis' credibility on that point via sworn statements in papers in other litigation to the effect that construction was begun in January 1999. (See, e.g. TR 251). However, Pantelidis explained that the referenced work relating to the extension was limited to "probes." (TR 220). Significantly, this testimony was corroborated by the testimony of respondents' witness Rick Adams who repeatedly described the pre-permit work he observed as limited to "prep work." (TR 517, 526, 259, 534-35). Adams himself did not observe "full construction" until well after the permit had been issued. (TR 536).

Also unavailing was respondents' introduction into evidence of a "stop work order" issued by the DOB in an effort to undermine petitioner's credibility or show a lack of good faith. (Resp. B). Pantelidis testified that he understood that the violation issued to one of his contractors was unrelated to the extension. (TR 180-81). Significantly, respondents' witness Rick Adams confirmed that fact. (TR 524). In any event, all issues were addressed promptly and work thereafter was allowed to resume without further interruption. (TR 176).

Petitioner's final witness, his architect William Savino, testified in a sincere and straightforward manner as to details wholly consistent with those offered by Livian and Pantelidis. For example, he understood that the DOB plan examiner had approved the application and plans relating to the extension in early 1999 after discussions were had and additional information provided to address routine DOB questions, formally known as "objections". (TR 348, 353, 359, Pet. 2). Savino advised Pantelidis of the approval. (TR 360). He acknowledged having met with both Livian and his deputy Laura Osorio on various occasions to discuss issues raised by the Sheehans, but that Livian "held his ground" in approving the glass structure (TR 370).

On cross-examination Savino expressly corroborated testimony by Pantelidis that no construction on the extension was commenced until after the approval and permit had issued. (TR 392). Further, while various issues were raised during the ensuing months, they were consistently addressed so that the approval of the glass extension was "confirmed" by the DOB, rather than revoked. (TR 393). Wholly unavailing were respondents' efforts to undermine Savino's credibility by raising purported inconsistencies, such as a reference to the "greenhouse" in an October 1998 bill from Savino's office (TR 456) and statements as to why Savino resigned from the job (481-85). Any purported "inconsistency" was on a collateral issue and adequately explained so that the net result was no inconsistency at all.

Respondents' two witnesses, Adams and Hunt, offered nothing to the contrary. Without a doubt they proved that they had made repeated and vigorous efforts on behalf of the Sheehans to gather evidence against Pantelidis and have his permit revoked. Adams even acknowledged that he had entered the Pantelidis building six times without permission. (TR 574). However, as noted above, Adams' testimony, which focused on the progress of the construction, was essentially consistent with that given by Pantelidis.

Similarly, the testimony offered by the Sheehan's architect Linna Hunt did not contradict that offered by Pantelidis' architect, DOB Commissioner Livian, or Pantelidis himself. On behalf of the Sheehans, Hunt sought to have the Pantelidis permit revoked by repeatedly meeting with [*6]and writing to DOB Deputy Borough Superintendent Laura Osorio. Hunt raised every possible objection, including those which clearly had no impact on the Sheehans, such as access by one of Pantelidis' tenants to the backyard. (Resp. L). Hunt apparently chose to work through Osorio, rather than her superior Ron Livian, based on their long-standing relationship. So comfortable was the relationship that Ms. Hunt referred to Ms. Osorio by her first name "Laura" in her testimony to the Court. (TR 596). Hunt nevertheless acknowledged that, despite her efforts, the permit for the glass extension was never revoked, but rather, revisions were made which enabled the structure to comply with Code. (TR 599, 601). Hunt also acknowledged that it was "clear" from the plans that the glass structure was a "two-story extension" with "interior stairs," rather than a traditional greenhouse, thereby defeating respondents' earlier suggestion that Pantelidis had acted in bad faith by misleading the DOB as to the true nature of the structure. (TR 624). She further acknowledged that she had not sent to Pantelidis or his architect copies of her three memos addressed to the DOB to alert them to her concerns, thereby defeating respondents' suggestion that Pantelidis could not have proceeded in good faith reliance on a valid permit in the face of the Sheehan's many objections. (TR 619). Instead, Hunt simply made efforts through her contact with Osorio to get the permit revoked. (TR 608).

Thus, while respondents at the hearing sought to suggest that Pantelidis did not rely in good faith on a then-valid permit, the evidence in fact showed the contrary. Both Pantelidis and his architect properly understood from various DOB documents and meetings with DOB Borough Commissioner Ron Livian that the DOB had approved the extension in early 1999 and that the approval remained in full force and effect throughout the period of construction. Pantelidis relied on the permit to complete the construction for his family at considerable expense, as demonstrated by his credible testimony as to monies paid to various contractors for materials and labor totaling $150,000 to $200,000. (TR 154-55, 165-72, Resp. I). Neither Pantelidis' inability to precisely recall the final amount or to fully document his expenses, nor minor discrepancies in statements given by him over the years regarding expenses, is of any moment. As this Court noted in its prior decision, expenditures may properly be considered as evidence of reliance. Ellentuck v Klein, 51 AD2d 964 (2nd Dep't 1976), app dismissed 39 NY2d 743.This Court is satisfied based on the evidence adduced at the hearing and common sense that Pantelidis incurred considerable expense to construct the extension at issue, and that considerable expense and disruption to his family will result should Pantelidis be compelled to remove the extension.

Pantelidis has Established the Criteria for an Area Variance

Stated simply, a variance is an authorization for the construction or maintenance of a structure which is technically prohibited by the zoning ordinance. Anderson, Robert M. And Salkin, Patricia, New York Zoning Law and Practice §29:02 (4th ed 2002). There are two types or variances. A "use" variance is one which permits a use proscribed by the zoning ordinance, such as residential or commercial. Id. at §29:05. In contrast, an "area" variance involves a relaxation of a rule governing dimensional or physical requirements affecting a building or a lot, such as a rule limiting the height of a building or setting the minimum size for a rear yard. Id. at §29:06; 29:32.

In the City of New York, variances are governed by §72-21 of the Zoning Resolution of the City of New York, promulgated June 20, 1968. That section begins by aptly stating the [*7]purpose of a variance as follows.

When in the course of enforcement of this Resolution, ... there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of [a] provision, the Board of Standards and Appeals may, in accordance with the requirements set forth in this Section, vary or modify the provision so that the spirit of the law shall be observed, public safety secured, and substantial justice done.

Before 1956, the courts routinely addressed variances without distinguishing between use and area variances. To prevent abuse and protect the community's interest in orderly development, the courts strictly limited the power to vary zoning rules, allowing a variance only when the literal enforcement of a regulation would result in "practical difficulties or unnecessary hardship." Id. at §27:07-08; see also, Otto v. Steinhilber, 282 NY 71 (1939), rearg. denied 282 NY 681 (1940). No distinction was made at the time between use and area variances.

The Court of Appeals sharply changed that approach in 1956 in Village of Bronxville v. Francis, 1 AD2d 236 (2nd Dep't), aff'd 1 NY2d 839 (1956); stating that

"When the variance is one of area only, there is no change in the character of the zoned district ... A change of area may be granted on the ground of practical difficulties alone, without considering whether or not there is an unnecessary hardship. ... [I]n the absence of statutory provision to the contrary, special hardship need not be established as a condition to granting an area variance.

This approach, which significantly lessened the standard for an area variance, was then codified by the Legislature in various statutes, such as General City Law §81-b and Town Law §267-b. For area variances, the overall approach became one of balancing "the benefit to the applicant versus the detriment to the health, safety and welfare of the neighborhood or community. Anderson at §29:34.

The Court of Appeals has consistently recognized that an "applicant for a use variance bears a heavier burden of proof than one who desires relaxation of an area limitation." Village of Fayetteville v. Jarrold, 53 NY2d 254, 257 (1981), citing Matter of Consolidated Edison Co. v. Hoffman, 43 NY2d 598, 606-607 (1978); see also Sasso v. Osgood, 86 NY2d 374 (1995) (emphasizing the "balancing test" to be used in the case of an area variance.) Respondents herein urge this Court to essentially disregard the well-recognized distinction between use and area variances. They argue that the plain wording of §72-21 of the Zoning Resolution makes no distinction between the two types of variances, and they argue that the various cases which recognize the distinction are not applicable because they are based on specific sections of the Town Law and the General City Law which do not apply in the City of New York.

This Court disagrees. As noted above, the preamble of §72-21 quoted above mandates that the BSA grant variances "so that the spirit of the law shall be observed, public safety secured, and substantial justice done." Thus, while 72-21 directs the BSA to make five specific findings, the findings should be made consistent with the general mandate. Indeed, the First Department recognized that very point in the instant case when it held that the BSA should have considered Pantelidis' good faith reliance of a then-valid permit when making its findings, even though no such mandate appears in the express language of 72-21. Pantelidis v. NYC Board of [*8]Standards and Appeals, et al., 13 AD3d 242 (2004). The First Department supported that holding by citing to the decision by the Court of Appeals in Jayne Estates, Inc. v. Raynor, 22 NY2d 417 (1968), even though Jayne involved property outside the City of New York not subject to the Zoning Resolution.

In addition, and quite significantly, the First Department, in cases involving Zoning Resolution §72-21, has expressly adopted Matter of Bronxville and the lesser standard applicable to area variances. Thus, in upholding the grant of an area variance in Matter of Envoy Towers Company, et al., v. Klein, et al., the Appellate Division stated as follows:

We must note that a finding of "special hardship" prior to granting a variance is limited to use variances, while a change of area may be granted on the basis of practical difficulties alone (Matter of Village of Bronxville v. Francis,1 AD2d 236, 238, affd 1 NY2d 839; Dauernheim, Inc. v. Town Bd. of Hempstead, 33 NY2d 468, 471). The rationale for greater leniency in the standard of proof required for an area variance is that such a variance does not change the essential character of the zoned district as a use variance would (Matter of Hoffman v. Harris, 17 NY2d 138, 144).

51 AD2d 925, 926 (1st Dep't 1976), lv den. 39 NY2d 710 (1976); see also Galin v. Board of Estimate of the City of New York, 72 AD2d 114 (1st Dep't 1980) (Fein, J.), aff'd 52 NY2d 869 (1981).

It is against this backdrop that the Court must review the determination by the BSA in this case which denied Pantelidis' application for an area variance. The BSA reviewed the variance under Zoning Resolution §72-21, which requires findings as follows:

(a) due to "unique physical conditions," strict compliance with the Zoning Resolution will result in "practical difficulties or unnecessary hardship;"

(b) a variance is necessary to "realize a reasonable return;"

a variance "will not alter the essential character of the neighborhood ... substantially impair the appropriate use or development of adjacent property ... or be detrimental to the public welfare;"

(d) the practical difficulties or unnecessary hardship are not self-created; and

(e) the variance is the minimum necessary.

In the case at bar, the BSA found that Pantelidis had failed to establish subdivisions (a), (b) and (d). As to (a) and (b), the Board found that Pantelidis had failed to establish that "the subject enlargement constitutes a unique physical condition' and that the costs associated with removal of the condition constitute a basis for a financial hardship."[FN4] As to (d), the BSA determined that "the enlargement was a condition created by the applicant."

In light of the prevailing case law and Pantelidis' good faith reliance on a permit, the BSA's findings are arbitrary and capricious. The requirement under subdivision (a) of "uniqueness" may be satisfied under a broad range of circumstances. In Matter of Commco, 109 AD2d 794 (2nd Dep't 1985), app. den. 65 NY2d 606, the court (citing authority by the Court of [*9]Appeals) held that uniqueness could be satisfied "by showing that the difficulty complained of relates to existing improvements on the land." In Matter of Douglaston Civic Ass'n, 51 NY2d 963, 965 (1980), the Court held that: "Uniqueness does not require that only the parcel of land in question and none other be affected by the condition which creates the hardship..." And in Jayne Estates, the Court of Appeals held that a variance should be granted, even absent unique circumstances, if the landowner was proceeding in good faith, the variance had minimal impact and financial hardship was shown. 22 NY2d at 425.

Here the BSA in its Resolution detailed a number of conditions which made the property unique. When Pantelidis purchased the building, it had an extension on its easterly side which caused non-compliance with the rear yard requirements and which also created a non-complying outer (side) court to the west. The new glass extension occupies a part of the outer court and does not extend into the rear yard more than the existing extension.[FN5] Considering these facts, it was arbitrary for the BSA to deny the variance in reliance on subdivision (a), particularly under Jayne.

In addition, Pantelidis established practical difficulties and economic hardship based on the need to connect the two floors for the family's appropriate use of their home, the expense of construction, and the cost and impact of the removal of the newly constructed extension. The cases cited by the respondents are readily distinguishable. Not only is each case particular to its facts, but here Pantelidis built the most minimal extension, housing a necessary staircase rather than multiple additional rooms to simply enlarge his home. Thus, the denial of the variance under subdivision (b) was arbitrary.

Similarly arbitrary was the BSA finding of self-created hardship under subdivision (d). Although Pantelidis did create the extension, he did so in good faith reliance on a then-valid permit. This good faith precludes a finding of self-created hardship. As the Court of Appeals stated in Jayne (22 NY2d at 423):

If Jayne is held to have created its own difficulty by relying on the [DOB permit], procured in good faith, there may never be hardship within the meaning of the statute when a building permit is subsequently held invalid.

Respondents argue that, notwithstanding the Court's findings as to subdivisions (a), (b) and (d), the matter must be remitted to the BSA for findings as to subdivisions and (e). The Court disagrees. First, had the BSA found a failure of proof, or had it declined to address the points as academic, it presumably would have so stated. The fact that it did not strongly suggests that the BSA concluded that those subdivisions had been satisfied.

And they have. The two-story glass enclosed staircase, similar to one a few houses down, was completed with a minimal variance having no impact on the neighborhood and not detrimental to the public welfare. The minimal nature of the area variance supports its approval, as the smaller the magnitude the less chance of its impact. See, e.g., Consol v. Hoffman, 43 [*10]NY2d 598, 606 (1978). It cannot be over-emphasized that the variance at issue here sought to modify the minimum rear yard requirements by only 6 feet, a condition which already existed on the easterly side of the lot opposite from the Sheehans. Further, the extension is a see-through glass structure which begins one-story above grade and encompasses only two stories of the five-story building. The BSA noted in its Resolution denying the variance that it considered the Sheehan's complaints. But pressure from landowners, standing alone, does not establish adverse impact. See Matter of Greenfield, 21 AD3d 556 (2nd Dep't 2005). This point is particularly true where, as here, the Sheehans presented a host of objections, none of which demonstrated a negative impact on the community.

In light of these findings, nothing remains for the BSA to consider, and a remittal is in order solely for the purpose of directing the BSA to issue the requested variance. Accordingly, it is hereby

ORDERED AND ADJUDGED that the Article 78 petition is granted, the January 14, 2003 BSA Resolution is annulled, and the BSA is directed to issue the variance.

This constitutes the decision and judgment of the Court.

Dated: December 23, 2005

ENTER:

____________________

J.S.C. Footnotes

Footnote 1:"TR" refers to the transcript of the hearing. The floors described by the Court in its earlier decision differ by one due to alternate methods of designation.

Footnote 2:"Pet" refers to Exhibits offered at the hearing by the petitioner, and "Resp" refers to Exhibits offered by the respondents.

Footnote 3:The Sheehans also commenced a separate plenary action against Pantelidis seeking monetary compensation for alleged damage to their house and possessions from noise, dust and unlivable conditions purportedly caused by renovations at the Pantelidis house. See, Sheehan v. Pantelidis, et al., 6 AD3d 251 (1st Dep't 2004).

Footnote 4:Significantly, the BSA made no mention of the express criterion in (b) of "reasonable rate of return," as that criterion has no application to an area variance for a private home. Instead, the BSA examined potential financial hardship.

Footnote 5:DOB Commissioner Livian approved the extension on the ground that it reduced the non-complying outer court. The BSA did not disagree, but held that the protrusion into the rear yard remained a problem.