Matter of Rhoades v Board of Zoning Appeals of the Town of Brookhaven
Annotate this CaseDecided on August 16, 2006
Supreme Court, Suffolk County
In the Matter of the Application of Lynn Rhoades, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules
against
Board of Zoning Appeals of the Town of Brookhaven, Respondent.
28151-05
Dranitzke, Lechtrecker, Trabold & Johnson
Attorney for Petitioner
73 North Ocean Avenue
Patchogue, New York 11772
Garrett W. Swenson, Esq. Chief Deputy Town Attorney
Town of Brookhaven
One Independence Hill
Farmingville, New York
Peter H. Mayer, J.
The petitioner herein seeks review under CPLR 7804(e) of an adverse determination by the [*2]Town of Brookhaven Zoning Board of Appeals for an area variance application.
Petitioner is the owner of a parcel of property fronting on County Rd. 46 (Wm. Floyd Parkway), a four-lane highway located in Shirley, Town of Brookhaven, County of Suffolk. This parcel is vacant having a frontage of 102.20 feet on Wm. Floyd Parkway and a lot area of 12,695 sq. ft. At the time of the application the zoning requirements for the parcel mandated a minimum total lot size of 40,000 sq. ft. Accordingly, a single family residence cannot be constructed without an area variance.
An area variance involves matters such as setback lines, frontage requirements, lot size restrictions, density restrictions and yard requirements (In the Matter of Shadid U. Khan v. Zoning Bd. Of Appeals of the Village of Irvington, 87 NY2d 344).
A public hearing of the Zoning Board of Appeals was held on Aug. 24, 2005 concerning the area variance request. On October 26, 2005 the board voted unanimously to deny the application.
Town Law §267 b(3) regulates area variances and requires the Zoning Board to engage in a balancing test in which the benefit to the applicant is weighed against "the detriment to the health, safety, and welfare of the community" (see, Sasso v. Osgood, 86 NY2d 374).
To fulfill this function, the Board must consider five separate elements which include:
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 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.
A Zoning Board's determination must be supported by "substantial evidence." Further, the scope of judicial review is limited to a conclusion of whether the action taken by the Board was arbitrary or an abuse of discretion. If the determination is supported by substantial evidence and has a rational basis it must be upheld (Matter of Doyle v. Amster, 79 NY2d 592; Matter of Fuhst v. Foley, 45 NY2d 441; Chrisma Holding Corp. V. Zoning Bd. Of Appeals, Town of Lewisboro, 266A.D.2d 540). The reviewing Court in a proceeding pursuant to Article 78 may not substitute its [*3]judgment for that of a planning or zoning board unless the board's determination is arbitrary and capricious, illegal or an abuse of discretion (Pagnozzi v. Village of Piermont, 292AD2d 613).
In this matter, the Board found that the lot area variance sought was 69% deficient in the area requirement ( 12,695 sq. ft. as a percentage of the 40,000 sq. ft. mandate of the A-1 residence zone). The application also sought, and the Board found that the lot width variance was a 43 % relaxation from the requirement, a 40% relaxation of the front yard setback, and a 30 % relaxation of the total side yard. The Board found these proposed variances were substantial both numerically and as it would impact future development. Variances of 60% have been held to be substantial (Ifrah v. Utschig, 98 NY2d 304).
The record also established that most of the parcels within a 500 foot radius of the subject premises are substandard in that they do not conform to the existing A-1 code. The radius map presented to the board depicts 61 parcels within 500ft., most of which are similar in terms of lot area to the subject parcel. The concern voiced by the Board, however, was the development of the lots whose only ingress and egress was from County Road 46 (Wm. Floyd Parkway) which is a four-lane busy thoroughfare, a fact conceded by petitioner's attorney at the hearing.
The radius map before the board showed all parcels on the westerly side of County Road 46 whose only means of ingress and egress would be from the highway, were vacant. The petitioner presented a photo purportedly showing that parcel 43, similar in size to the subject parcel and only two parcels to the south, had a newly constructed house on it. There was no appearance or affidavit from the owner of the parcel attesting to this and no evidence tendered to the Board to show the legal basis justifying the construction. Thus, its presence could have been predicated on the single and separate ownership exception created under Brookhaven Town Code §85-372-c.
Also, the petitioner's reply has tendered with it what appears to be an approval for construction of a single family residence on a parcel which is contiguous to the subject parcel to the north. This approval was reportedly granted after a public hearing by the Board held on November 8, 2004 thus preceding this petitioner's application by a little less than a year. The petitioner did not, however, bring the status of this parcel, known as parcel 23, to the Board's attention during the hearing regarding the subject property. The Board had before it a radius map showing all of the parcel's fronting on Wm. Floyd Parkway to be vacant.
The subject parcel, as noted above and by the Board, fronts on County Road 46, a four-lane highway with a 55 mph speed limit. Access to and from this parcel would be directly to and from County Road 46. This parcel also lies directly across from the convergence of Wm. Floyd Parkway and Fleet Road. There are no traffic control devices directing the flow of traffic at this precise point. There are no other relevant parcels that have this unique geographic characteristic. Indeed, the Board registered its traffic safety concerns as it pertains to this variance request, in its factual findings. Such concerns are relevant on the question of the Board's responsibility of balancing the benefit to the applicant with the detriment to the health, safety, and welfare of the community (see, Town Law 267-b[3]). [*4]
The status of parcel 23 bears comment. A purported approval for a variance to build a single family residence on this similarly sized parcel is annexed as Exhibit A to the petitioner's reply. Parcel 23 is located to the immediate north of the subject parcel, access to which would be directly to Wm. Floyd Parkway. This parcel, however, is not directly across from the convergence of Fleet Road and Wm. Floyd Parkway as is the subject parcel. The approval exhibit is in the form of a letter signed by one Kathleen McClean, as secretary to the ZBA. The letter bears the agency title and logo of the Brookhaven Board of Zoning Appeals. There is no affidavit from the owner of said property. The exhibit is not under oath. The "cc" at the bottom of the page indicates that this letter was mailed to Harold Trabold, the same attorney representing the petitioner herein. Under these circumstances, it is difficult to understand why this evidence wasn't brought before the Board.
The Court cannot go outside the record below in exercising judicial review pursuant to Article 78. When reviewing the determinations of a Zoning Board, courts consider "substantial evidence" only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination (see, Sasso v Osgood, 86 NY2d 374).
In this matter, the Board considered the five elements required by Town Law 267-b(3). First, it determined that the proposal was substantial numerically (69% diminution of lot size, 43% reduction for width, 40% relaxation for front yard set back, and a 30% reduction for sideyard) and as it impacts future development.
The Board acknowledged that many of the parcels within 500 ft. were substandard but most of those parcels do not have ingress and egress on Wm. Floyd Parkway as its sole access. The parcels with access solely to and from Wm. Floyd Parkway within 500 feet are vacant, with the possible exception of one. The Board had no evidence before it that suggested any of these parcels had construction that derived from a grant from the Board or were developed pursuant to some exception to the area variance requirement. The granting of this application, the Board found, will set a negative precedent in terms of future applications for development of substandard sized lots fronting Wm. Floyd Parkway. This would produce an undesirable change in the character of the relevant neighborhood.
The Board considered the question of whether the petitioner attempted other feasible means to achieve conformity with the zoning requirements. Although the contiguous parcels were vacant, the petitioner did not present sufficient evidence as to attempts made to purchase such lots.
The evidence clearly established that traffic safety was a serious concern to the Board, citing the lack of traffic control devices in the relevant area, particularly as it related to the subject parcel being directly across from the convergence of Fleet Road and Wm. Floyd Parkway. Such construction without adequate traffic and safety devices would cause an undesirable change to the community and have an adverse impact to the physical and environmental conditions of the neighborhood.
The difficulty here was self-created and the Board so found. The subject parcel was acquired [*5]by the owner in 1987, a time when the current A-1 residence specifications were in effect. Further, the applicant is a contract vendee to purchase the substandard parcel. Therefore, the hardship is self-created.
Under all the circumstances presented, the Board did not act arbitrarily in denying an area variance. The Zoning Board weighed the benefit to the petitioner, the opportunity to fully use his property for a permitted use, against any detriment to the health, safety, and welfare of the neighborhood, and determined to deny the request. Its conclusions find ample support in the record, and its determination was not irrational, arbitrary or capricious.
Based upon the above, the petition is hereby dismissed.
This constitutes the judgement of the court.
Dated: ____________________________________________________
PETER H. MAYER, J.S.C.
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