Matter of Brown v Radziewicz

[*1] Matter of Brown v Radziewicz 2008 NY Slip Op 50723(U) [19 Misc 3d 1115(A)] Decided on April 3, 2008 Supreme Court, Suffolk County Spinner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2008
Supreme Court, Suffolk County

In the Matter of Nathan Brown, Gloria Brown, Judy Clempner, Ray Simek and Shirley Garrett, , Petitioners,

against

Kathleen Radziewicz, Michael Bromberg, Denise Schoen, Anthony Hagen and Benedetta Deubel, Constituting the Zoning Board of Appeals of the Village Of Sag Harbor, Vashti White, 9 Vickers Street LLC and 11 Vickers Street LLC, Respondents,



2006-25474



TO:

Jeffrey L Bragman, PC

Attorneys for Petitioners

15 Railroad Avenue, Suite 1

East Hampton, New York 11937

Lisa C Kombrink, Esq

Attorney for Respondent ZBA

235 Hampton Road

Southampton, New York 11968

Dennis Downes, Esq

Attorney for Respondents VICKERS

PO Box 1229

Sag Harbor, New York 11963

Anthony B Tohill, PC

Attorney for Respondents VICKERS

12 First Street, PO Box 1330

Riverhead, New York 11901

Jeffrey Arlen Spinner, J.

ORDERED, that the first application of Petitioners is hereby granted to the extent set forth herein below; and the second application of Petitioners is herein dismissed as moot.

Petitioners move this Court [001] for a Judgment, pursuant to CPLR Article 78:

1.Annulling Respondents ZBA's August 15, 2006, Determination permitting the subdivision of the subject property into a two lot subdivision;

2.Annulling Respondents ZBA's August 15, 2006, Determination granting the request for dimensional variances to reconfigure the subject property's lots to 11,250 sq ft each, both with a lot width of 75 feet;

3.Granting Petitioners the relief requested upon the grounds that Respondents ZBA's Determination violated the Village of Sag Harbor's subdivision requirements and requirements for the issuance of variances, and was arbitrary and capricious and otherwise erroneous.

Specifically, the underlying Petition requests that this Court grant a Judgment declaring that the determination made by Respondent ZBA on August 15, 2006, which permitted the subdivision of the subject property into a two lot subdivision, was arbitrary, capricious, an abuse of discretion, illegal, null and void, and that said determination be reversed, annulled and set aside, and be declared to be of no force and effect.

Petitioners further move this Court [002] for an Order, pursuant to CPLR 7805, issuing a stay [*2]prohibiting Respondents VICKERS from applying or continuing to apply for any approval before the Village of Sag Harbor related to or leading to issuance of a building permit, including but not limited to the Board of Historic Preservation and Architectural Review, and the Building Department, during the pendency of this proceeding.

STATEMENT OF FACTS:

The premises that are the subject of the application before Respondent ZBA, whose determination regarding same is under review here, consist of two lots (Lots 20 and 21) which were held in single and separate ownership since prior to the adoption of a Zoning Code by the Village of Sag Harbor. Both lots are vacant and have street frontage on both Vickers Street and Downer Place. Lot 20 measures 50 feet wide by 150 feet deep from street to street, with an area of 7,500 square feet; and Lot 21 measures 100 feet wide by 150 feet deep from street to street, with an area of 15,000 square feet. Each parcel has a separate tax map number. Together, they form a lot 150 feet wide by 150 feet deep from street to street, with an area of 22,500 square feet.

Lot 20 was acquired by Walter White on March 26, 1970, from a William H H Wilkinson. Lot 21 was acquired by Walter White and his wife, Respondent WHITE, on March 26, 1970, from a William W Vickers. Both lots were kept under single and separate ownership, having separate deeds and not owned by identical parties, until the death of Walter White on January 4, 1997. Thereafter, by reason of Walter White's death, Respondent WHITE became the sole owner of both of these adjacent parcels.

Upon adoption of a Zoning Code in 1971, and since such time, the zoning for the district within which these lots are located has required a minimum lot area of 20,000 square feet, and a minimum lot width of 100 feet. In 1984 a new Zoning Code was adopted that apparently did not alter the lot area and lot width requirements, but sought to address the continuing existence of non-conforming lots, and the Court takes notice of the specific language of the following sections of said Code that are relevant to the within matter:

Chapter 55:Zoning

Article II:Word Usage and Definitions

§ 55-2.2. Definitions.

As used in this chapter, the following words and phrases shall have the meanings indicated in this section:

NONCONFORMING LOT Any lot lawfully existing in single and separate ownership at the effective date of this chapter, or any amendment thereto affecting such lot, which does not conform to the dimensional regulations of this chapter for the district in which it is situated. If such lot shall thereafter be in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two (2) parcels shall remain nonconforming in the same respect. (Emphasis added)

Article IV:R-20 One-Family Residence District [*3]

§ 55-4.1. Intent.

The R-20 One-Family Residence District is to be the principal residence district in the village. As a result of the village's long development history, it is anticipated that there may be some nonconforming residence and nonresidence uses. No new such uses shall be established, and every effort shall be exercised to contain those nonconforming buildings and uses that now exist. (Emphasis added)

Article XII:Nonconforming Uses, Buildings and Structures

§ 55-12.3. Continuance.

D.A nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter, and not adjoining any lot or land in the same ownership at any time subsequent to such date, may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot, which abstract shall be in the usual form, shall be certified by an attorney or a company regularly doing such work in Suffolk County or by a corporation duly licensed to examine and ensure title to real property in Suffolk County, and shall contain a certification that no contiguous property was owned by an owner of the property involved since the date of any previously applicable Zoning Code. (Emphasis added)

Respondent WHITE applied to the Village Building Inspector for separate building permits for each of the two above referenced lots, and was denied each by letter dated October 13, 2005, because neither lot contained sufficient lot area (§ 55-4.5A(1)), and Lot 20 lacked sufficient lot width (§ 55-4.5C). Thereafter, Respondent WHITE applied to Respondent ZBA for "...relief from Village Code § 55-4.5A(1) (minimum lot area, one family detached dwelling), to unmerge two merged lots and create parcels of 11,250 sq ft each, where 20,000 sq ft is required; and § 55-4.5C (minimum lot width) for a lot line modification if the two parcels are unmerged from the required 100' to 75' for each parcel", as stated in the determination of Respondent ZBA herein under review.

On March 6, 2006, Respondent WHITE sold the two lots that form the premises herein, deeding Lot 20 to Respondent 9 VICKERS and Lot 21 to Respondent 11 VICKERS, and by letter dated March 27, 2006, Respondent WHITE informed Respondent ZBA of same, and requested that her name be removed from the application.

After having held public hearings on this application on December 20, 2005, February 21, 2006, March 21, 2006, and April 18, 2006, and having received written submissions thereafter, Respondent ZBA rendered its written determination on August 15, 2006 the conclusion of which states the following:

"Therefore, for all the reasons set forth herein, this Board finds that the properties have not merged and grants the request for dimensional variances to reconfigure the lots to 11,250 sq. ft. each, both with a lot width of 75'. This relief is granted subject to the condition that access to one lot will be from Vickers Street and the other will be from Downers Place. Relief is further based on a survey dated August 11, 2005 last revised August 26, 2005 prepared by Barylski Land Surveying and is subject to such other relief as may be required." [*4]

Thereafter, Petitioners instituted this action. All sides raise a multitude of issues in their submissions, but the Court will only address those deemed to be meritorious and/or necessary to address in deciding this action, and all other arguments are to be considered lacking in merit.

STANDING:

As seems to have become the standard as of late, Respondents herein challenge Petitioners' standing to bring the instant action, which this Court must first address, before determining whether further review is necessary.

Respondents VICKERS' Counsel cites O'Brien v Barnes Building Co Inc, 85 Misc 2d 424, aff'd 48 AD2d 1018 [2 Dept 1975], Kam Hampton Realty Corp v BZA of the Village of East Hampton, 273 AD2d 387 [2 Dept 2000] and Levine v New York State Liquor Authority, 23 NY2d 863 [1969] in one submission, and Icahn v BZA of the Village of East Hampton, 286 AD2d 475 [2 Dept 2000] and Hariri v Keller, 34 AD3d 387 [2 Dept 2006] in a second submission, arguing Petitioners are without standing to bring this action, in that only one of the five Petitioners appeared at the hearing of this matter before Respondent ZBA, and that none addressed the issues raised in their Petition, arguing that they therefore failed to exhaust their administrative remedies. In fact, the Return filed with this Court by Respondent ZBA demonstrates that there were numerous submissions by several of the Petitioners, both directly and through the Chatfields Hill Property Owners Association bearing the signatures of several Petitioners, and that all of the issues raised in the within Petition are contained within their objections and, in fact, addressed by Respondent ZBA in its determination, and that therefore this argument fails.

Respondents VICKERS' Counsel cites Kemp v ZBA of the Village of Wappingers Falls, 216 AD2d 466 [2 Dept 1995] and Scannell v Town Board of the Town of Smithtown, 250 AD2d 832 [2 Dept 1998], arguing Petitioners are without standing to bring this action, in that proximity alone does not place them within the zone of interest, and that they must demonstrate proof of special injury to establish standing. This Court has previously written that the Courts have ruled petitioners were not entitled to an inference of injury because they lived within about one-third of a mile, one-half mile, or between 832 to 2,519 feet from the subject property (See, Olish v Heaney, 2003 WL 21276342 [NY SupCt]; Concerned Citizens for Open Space v City of White Plains, 2003 WL 22283389 [NY SupCt]; Oates v Village of Watkins Glen, 290 AD2d 758, 736 NYS2d 478 [3 Dept 2002]), the last matter involving a petitioner who resided within 530 feet from a proposed WalMart super center. The status of neighbor does not automatically entitle one to standing for judicial review in every instance (See, Sun-Brite Car Wash v Board of Zoning & Appeals of the Town of North Hempstead, 69 NY2d 414, 515 NYS2d 418, 508 NE2d 130 [1987]).

However, the Court is persuaded that the instant Petitioners are certainly in far greater proximity to the premises that are the subject of this matter, noting that ALL Petitioners reside herein directly across various streets from the subject property, and within approximately 50 to 150 feet from the subject premises, therefore within the zone of interest (See: Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406 [1987] {"If petitioners can show that their premises are located in close proximity to the subject property, then actual injury is not required for it is presumed that they will suffer an adverse impact different in nature or degree than the public at large"}; Manupella v Troy [*5]City Zoning Board, 272 AD2d 761 [3 Dept 2000] {where the Court recognized properties within 301 and 714 feet to be in close proximity}; Matter of McGrath v Town Board, 254 AD2d 614, leave denied, 93 NY2d 803 {where the Court recognized property within 500 feet to be in close proximity}; and Round Dune, Inc v Krucklin, 155 AD2d 668 [1989] {where the Court recognized properties within 500 feet to be close proximity}).

STANDARD OF REVIEW:

Now, turning to review of the decision of Respondent ZBA, it is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (See: Janiak v Planning Board of the Town of Greenville, 159 AD2d 574 [2 Dept] appeal denied 76 NY2d 707 [1990]; Mascony Transport and Ferry Service v Richmond, 71 AD2d 896 [2 Dept 1979] aff'd 49 NY2d 969 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (See, Castle Properties Co v Ackerson, 163 AD2d 785 [3 Dept 1990]).

MERGER:

In its determination dated August 15, 2006, Respondent ZBA consistently takes the position that the two lots that make up the premises that are the subject of this review did not merge, and the Court must review each of these findings in order to properly determine the efficacy of Respondent ZBA's findings.

At paragraph 7 thereof Respondent ZBA states that, "Lots 20 and 21 would not qualify for development as separate lots under § 55-123D, since they came into the same ownership subsequent to the adoption of the new provisions in 1986.". This finding seems irrefutable, except that, immediately thereafter, Respondent ZBA states that, "The revised code provision does not, notably, expressly provide that a merger has occurred when two nonconforming lots come into the same record ownership after the law's adoption.". Yet, the clear and unambiguous language of the code provision in question, as well as the related provisions, as cited herein above, is manifestly contrary to this statement, rendering such a conclusion arbitrary, capricious and unlawful.

At § 55-2.2 of the Village Code, regarding the definition of "Nonconforming Lot", the intent of the Village Board (the political subdivision's legislative body empowered with the authority to craft, enact and enforce such codes), in adopting this statute, is unambiguous. It specifically determined that the status of a nonconforming lot extinguished "If such lot shall thereafter be in the same ownership as an adjoining parcel...", in that such a lot "...shall lose its status as a nonconforming lot...", thereafter adding language to guarantee that it be understood that "...the lot created by the merger of the two (2) parcels..." would not owe a duty to meet the requirements of the Village Code to an extent greater than its merged sum total. For the purposes of clarify, the Court would point out that the word " merger" comes directly from the Village Code, as adopted by the Village Board.

In case the intention of the Village Board might be overlooked, thereafter, at § 55-4.1, entitled [*6]INTENT, the Village Code states that "...it is anticipated that there may be some nonconforming residence and nonresidence uses..." that would continue to exist, but that "...No new such uses shall be established, and every effort shall be exercised to contain those nonconforming buildings and uses that now exist...". There is no disputing that it was the intention of the Village Board, in adopting this language, to make every effort to reduce and restrain said nonconforming lots.

Furthermore, at § 55-12 3, entitled "CONTINUANCE", regarding the intentions of the Village Board as to the continuance of nonconforming lots, at subsection D the Village Code states "....A nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter, and not adjoining any lot or land in the same ownership at any time subsequent to such date, may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter...". Inherent therein is the fact that - any lot adjoining any lot or land in the same ownership at any time subsequent to the effective date of this chapter may NOT be used, or a building or structure may NOT be erected on such lot for use.

As adeptly pointed out by Counsel for Petitioners, it has never been the policy in this State that the clear and unambiguous wording of a statute may be overlooked entirely (See: Anderson v Reegan, 53 NY2d 356 [1981]; and that even widespread custom and usage cannot alter the plain meaning of a statute (See: Hellerstein v Assessor of the Town of Islip, 37 NY2d 1 [1975]).

Clearly and unambiguously, upon the death of Walter White the 2 lots that make up the subject property herein came into common ownership, and therefore merged, pursuant to the Code of the Village of Sag Harbor. Not only was the determination rendered by Respondent ZBA arbitrary, capricious and unlawful, it was beyond the scope of said Respondents' authority.

SUBDIVISION & SEQRA:

In that the lots had merged, the only way to separate them would be by subdivision, which is the province of the Village Planning Board, not Respondent ZBA, as per the Village Code, and being a subdivision, and therefore subject to SEQRA review as an Unlisted Action.

CONCLUSION:

Consequently, a Judgment declaring that the determination made by Respondent ZBA on August 15, 2006, was arbitrary, capricious, an abuse of discretion, illegal, null and void, and that said determination be reversed, annulled and set aside, and be declared to be of no force and effect, must be granted, and that being determined, Petitioners' request for a stay pending determination of this action is therefore moot.

For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,

ORDERED, that the above referenced application [001] of Petitioners is hereby granted in all respects, and this action is hereby disposed, and the above referenced application [002] of Petitioners [*7]is now rendered moot going forward, and therefore dismissed; and it is further

ORDERED, that Petitioners' Counsel is hereby directed to serve a copy of this Order, with Notice of Entry, on all other parties, the Calendar Clerk of this Court and the Suffolk County Clerk, within 20 days of the date of entry of this Order by the Suffolk County Clerk.

Dated:Riverhead, New York

April 3, 2008

______________________________________

HON. JEFFREY ARLEN SPINNER, JSC

TO: