Matter of Calapai v Zoning Bd. of Appeals of the Vil. of Babylon

[*1] Matter of Calapai v Zoning Bd. of Appeals of the Vil. of Babylon 2007 NY Slip Op 52469(U) [18 Misc 3d 1108(A)] Decided on October 29, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2007
Supreme Court, Suffolk County

In the Matter of the Application of Pamela Calapai, Petitioner,

against

Zoning Board of Appeals of the Village of Babylon, Respondent.



15650-2007



BRUCE KENNEDY,P.C.

Attorney for the Petitioner 31 Greene Avenue

Amityville, New York 11701

KRESSEL, ROTHLEIN & ROTH, ESQS.

Attorneys for Respondent

684 Broadway

Massapequa, New York 11758

Sandra L. Sgroi, J.

ORDERED that the Petitioners application for a judgment reversing and annulling the decision of the Respondent dated April 24, 2007 is granted; and it is further

ORDERED that the Petitioner is granted the area variance to maintain the converted garage as living space; and it is further

ORDERED that the Respondent is directed to issue the appropriate Certificate of Occupancy to the Petitioner; and it is further

ORDERED that the motion of the Respondent to dismiss the Petition is denied.

Enter Judgment.

In October of 2000, the Petitioner applied to the Respondent for permission to convert an existing attached garage into a bedroom with a bath for her quadriplegic, profoundly mentally retarded son, Alex. The Respondent granted that application but issued several conditions including the condition that "[u]pon sale of the property, change of title or change in the living situation the converted space must revert to a usable garage." (see, Petitioner's Exhibit "A"). The Petitioner complied with the conditions of the Respondent, the garage was converted into a bedroom and a bath that the Petitioner's son was able to use and the Petitioner's disabled son then was able to live in the family home for seven years before he died.

The conversion of the garage to living space customized for the significant needs of the son cost the family over $80,000 and the Petitioner stated that the family is still paying for the cost of this room with a home equity loan. The medical bills for the Petitioner's deceased son were not completely covered by insurance and the cost of the funeral was over $10,000.00. The Petitioner stated at the hearing that the cost to convert the room back to a garage would be about $40,000.00 and that the conversion would be a financial hardship to the family.

In addition to the financial hardship, the Petitioner has alleged that her family, including another young son, watched Alex fight for his life for seven years in the bedroom and that "[i]t's unimaginable for us to think that it could ever be destroyed so a car could park there." At the hearing, the Petitioner continued: [*2] We spent our first Christmas without him this year, and our six year (sic) asked that we put the Christmas tree in Alex's room so that Santa would remember him. This is now a tradition we would like to carry on, and we're asking you to help us to make that come true. We miss Alex with all our hearts and come to his room to feel closer to him. It is all we have left. We want to have peace knowing we may keep it, and we're asking you to help us make this true.

The Petitioner then presented evidence at the hearing that the neighborhood would not be affected by permitting her to maintain the bedroom and not convert it back to a garage. The Petitioner's house is on the corner of East Jackson Avenue and East Shore Drive and of the thirty four homes located on these two roads, twenty three of those houses do not have garages. No persons opposed the application of the Petitioner at the hearing held on February 28, 2007.

On April 24, 2007, the Respondent issued a decision that stated that "***it was voted by the Board to Grant permission to have the Covenants & Restrictions on her garage changed to permit her to retain her garage as living space." The decision, however, continued: Please note that this approval is grated for a period of THREE (3) years from the date of this approval letter. However, it will be necessary to reapply for continued permission by this Board after that period of time. In addition, this approval runs only with the title of the property in whose name it is now vested, and will cease upon the sale of the premises or with change of title. Upon the sale of the property or change in title, the living space must be converted back to a garage.

The decision of the Zoning Board of Appeals for the Village of Babylon did not state any reason for the denial of the variance. The Zoning Board has never stated the reasons for the denial of the variance request and no affidavits have been submitted in opposition of the Petition. The application of the Petitioner attached as the first Exhibit of the Certified Return clearly states that the Petitioner is seeking a variance to permit her to maintain the converted living space on a permanent basis.

Courts may set aside a zoning board determination only where the record reveals that the Board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure" (Matter of Pecoraro v. Board of Appeals of the Town of Hempstead, 2 NY3d 608, 613, 781 NYS2d 234, 814 NE2d 404; see, Matter of Ifrah v. Utschig, 98 NY2d 304, 308, 746 NYS2d 667, 774 NE2d 732).

The Zoning Board of Appeals of the Village has broad discretion in considering an application for an area variance, and judicial review is limited to a determination whether the action was illegal, arbitrary, or an abuse of discretion (see, Matter of Inlet Homes Corp. v. Zoning Bd. of Appeals of Town of Hempstead, 2 NY3d 769, 780 NYS2d 298, 812 NE2d 1246; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613, 781 NYS2d 234, 814 NE2d 404; Josato, Inc. v. Wright, 35 AD3d 470, 826 NYS2d 381 lv to app'l den'd 9 NY3d 805, - NE2d , 2007 WL 2472032 ). [*3]

The Zoning Board 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 Ifrah v. Utschig, supra ) and the Board must 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 benefits sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested 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" ( id. at 307-308, 746 NYS2d 667, 774 NE2d 732).

In determining whether to grant an area variance, a zoning board is required by Village Law § 7-712-b(3) to engage in this 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 Ifrah v. Utschig, supra at 307, 746 NYS2d 667, 774 NE2d 732; see, Matter of Sasso v. Osgood, 86 NY2d 374, 384, 633 NYS2d 259, 657 NE2d 254).

The decision of the Zoning Board of Appeals failed to adequately consider whether the requested variances would, in fact, have an adverse impact on the neighborhood and the character of the community or would otherwise affect the health, safety or welfare of the community (see, Marotta v. Scheyer, 40 AD3d 645, 835 NYS2d 421; see generally Campo Grandchildren Trust v. Colson, 39 AD3d 746, 834 NYS2d 295). The denial, which has been quoted in almost its entirety, is arbitrary in that it does not discuss any balancing of the factors that support or militate against the Petitioner's request for a variance. As such, the decision of the Respondent is arbitrary and an abuse of discretion.

The Court has reviewed the record and there is no evidence that supports the denial of the variance. No one testified against the relief requested. There is no showing that the character of the neighborhood would be affected. The footprint of the house would not change and the intensity of the use is not being increased. The hardship, both financial and emotional, to the applicant cannot be considered self imposed unless the unselfish caring for a profoundly disabled child in a loving, family environment can be considered as a "self imposed" hardship.

Therefore, the decision of the Respondent denying the application of the Petitioner is vacated and reversed, the Respondent is directed to grant the application of the Petitioner, and the matter is remitted to the Respondent for the purpose of issuing the documentation required for the certificate of occupancy (see, Human Development Services of Port Chester, Inc. v. Zoning Bd. of Appeals of Village of Port Chester, 110 AD2d 135, 493 NYS2d 481 aff'd 67 NY2d 702, 490 NE2d 846, 499 NYS2d 927).

Dated:________________________SANDRA L. SGROI, J. S. C.