Matter of Smith v Board of Zoning Appeals of Town of Islip

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Matter of Smith v Board of Zoning Appeals of Town of Islip 2014 NY Slip Op 31604(U) June 18, 2014 Supreme Court, Suffolk County Docket Number: 13-27589 Judge: Daniel Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] MEMORANDUM SL PREfvlE COURT. SUFFOLK COUNTY 1.A.S. PART 9 ----·------------------------------------------------------------)( Jn the Matter of the A pplication of Tl IE ES Ti\TE OF ROBERT W. SMITH BY WA YNL W. SMIT! I. E.X:EC UTOR. By: Martin. A. J.S.C. Dated: Jun e 18. 2014 Index No. 13-275 89 Mot. Seq. # 001 - MD Petitioner-Plaintiff for a Judgment pu rsuan t to Article 78 of the Civil Practi ce Law and Rules Return Date : 10-30-13 12-17-13 Adjourned: - against - BOARD OF ZONING APPEALS OF THE TOWN OF !SLIP and THE TOWN OF ISLIP , Respondents. ----------------------------------------------------------------)( SUSAN A. DeNATALE. ESQ. Attorney for Petitioner 982 Montauk Highway. Suite 6 Bayport. New York 11 705 ROBERT L. CICALE, TOWN ATTORNEY TOWN OF ISLIP Attorney for Respondents 655 Main Street Islip, New York 11751 In this hybrid Article 78 proceeding and action for declaratory judgment, petitioner/plaintiff ( hci\_'.inaftcr ·'petitioner .. ) seeks a judgment annulling and setting aside the determination of the Zo ning Board of Appeal s of the Town of Islip ("ZBA''). dated September 16. 2013 , which denied the petitioner.. s application for variances. and directing the approval of the app lication in its entirety. Petitioner further seeks a judgment pursuant to CPLR 3001 declaring that the denial of petitioner' s application deprived petitioner of vested property rights. without due process of law. and without just compen sation in \ iolation of the Federal and New York State constitutions and a further declaration that Chapter 68 of the Code of the Town of Islip is unconstituti onal and void as a matter of law for prohibiting dcveloptrn:nt of the subjec t premi ses without due process of law. [* 2] Smith v Islip / BOA. lrnk.\ \!o. 13-27589 Page No. 2 Petitioner is the ov.,;i1er o f real property in the Town oflsl ip kno\vn as 60 West Drive. Ronk o nkuma. Ne\\ Yo rk (the "'subject premises·} T he subj ect property. located in a Residence .. B" znning di strict. is currently vacant and unimproved. the prior dwe lling on the property havi ng been destroyed hy a fire in 2010. The Town Code of the Town of Isli p requires that property in a Residence .. Ir distri ct have a lot width of 75 feet and a lot area of 7.500 square feet. The subject property measures 40 led by I 00 fe et, resulting in a lot size of 4,000 square feet and. thus. does not meet the minimal lot area requirements of the Residence .. B'' zone. Petitioner applied to the ZBA to construct a single family d\\elling on the subject property with the lot having a width of 40 feet instead of the required 75 feet and a Int area of 4 .000 square fee t instead of the required 7,500 square feet. In addition, petitioner sought area vari a nces to reduce the req uired side yards from 14 feet to 7 feet, for total side yards of 14 feet instead of the req uired 28 feet and for a fl oo r area ratio ("FAR" ) of28 .6% instead of the perm itted 25%. The subj ect property was previously before the ZBA in 1997, ZBA Applicatio n #323 -97, at which time it was determined that the previous dwelling on the substandard lot constituted a legal nonconfo rming use. However, thereafter the dwelling suffered extensive damage in a fire and was demolished after it was determined that 85% of the dwelling was damaged . Section 68- ! 5 (c) of the Town Code of the Town of Islip states: No building which has been damaged by fire or other causes to the extent of more than 50% of p hysical structure, as determined by the Commissioner of Planning and Development. or his designee, exclusive of fo undations, shall be repaired, rebuilt or used except in conformity with the prov isions of this ordinance. As a result, the property lost its nonconforming use and any new structure on the subj ect property is req uired to be built in conformity with the Town Code. A hearing on petitioner' s application was he ld on April 30, 20 13 . The prior grant of nonconformi ng status was noted . Petitioner's co unsel argued that the petitioner's situation was not selfcrcated because the prior nonconforming ho use was destroyed by a fire. He further stated that within . :200 reet or the s ubj ec t property, three of thirteen properties have similar dimensions to the s ubject property. However. w ithin 500 feet of the subject property, only 3 to 4 percent of the properties have dimensions simil ar to the subject property. It was a lso noted in the record that the ZBA had previously, in 2000. de nied an application in the sam e area to build a one-story dwelling on a lot havi ng a width of 4 1.98 feet and a lo t area of 3.735 sq uare feet. A represe ntative of the Planning Department testified in oppositi o n to the app licati on. based upon a findin g that the application was not in keeping w ith the c haracte r th e nei ghbo rhood. Neighboring homeowners a lso spoke in opposition to the app lication. ' vi th the requested side yards being the main focus of their complaints. The public hearing was adjo urnc.'c.i. o n consent. until Jul y 9. 2013 to allow the app licant to meet w ith the P lanning Department and ne ighbors and to modify the proposal to m ake it more acceptable. At the second hearing, two aclclitional ne ig hbors spoke in oppositio n to the app lication . No change was made to the application and a lter the hearing. th e L.'.'. BJ\ rese rved decisio n. In oppositi on to the app licatio n, the Planning Department forwarded tn the ZBA a mem orandum, dated September 9, 20 13. wherein it asserted that: the proposal would hme an ad ve rse impact on the neighborhood; the lot was sign ificantly substandard; granti ng the ur [* 3] Smith v Islip ZBOA Index No. 13-27589 Page No. 3 application would undermine the neighbors' lawful expectation that the nonconforming use would one day be phased out of existence; the requested area variances were substantial, not in keeping with the nature and character of the neighborhood and self-created; and the applicant had alternative courses of action under the code. On September l 0, 2013 the ZBA rendered a decision and issued written findings denying the application. It is noted at the outset that the affidavit of Jason Majestic, submitted with the petition herein, is not admissible and will not be considered, since it was not submitted during the application process or at either of the public hearings and, thus, was not part of the record before the respondent ZBA (Kaufman v Inc. Vil. of Kings Point, 52 AD3d 604, 607 [2d Dept 2008]; Mer/otto v Town of Patterson Zoning Bd, 43 AD3d 926, 841 NYS2d 641 [2d Dept 2007]; Manzi Homes v Trotta, 286 AD2d 737, 730 NYS2d 451 [2d Dept 200 I]). A local zoning board has broad discretion in considering applications for area variances and interpretations of local zoning codes (see Matter of Pecorano v Board of Appeals of Town of Hempstead, 2 NY3d 608, 781NYS2d234 [2004]; Matter of Cowan v Kern, 41NY2d591, 394 NYS2d 579 [1977]; Matter of Marino v Town of Smithtown, 61 AD3d 761, 877 NYS2d 183 [2d Dept 2009]), and its interpretation of the local zoning ordinances is entitled to great deference (see Matter of Toys "R" Ur; v Silva, 89 NY2d 411, 418-419, 654 NYS2d 100 [1996]; Matter ofGjerlow v Graap, 43 AD3d 1165, 842 NYS2d 580 [2d Dept 2007]; Matter of Brancato v Zoning Bd. ofAppeals of City of Yonkers, N. Y., 30 AD3d 515, 817 NYS2d 361 [2d Dept 2006]). A court, however, may set aside a zoning board's determination if the record reveals that the board acted illegally or arbitrarily, abused its discretion, or succumbed to generalized community pressure (see Matter of Pecorano v Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234; Matter of Cacsire v City of White Plains Zoning Bd. of Appeals, 87 AD3d 1135, 930 NYS2d 54 [2d Dept], Iv denied 18 NY3d 802, 938 NYS2d 859 [2011 ]). "In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis ... [A] determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis .. (Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118, I 119, 944 NYS2d 277 [2d Dept 2012]; Matter of Cacsire v City o.f White Plains Zoning Bd. of Appeals, 87 AD3d 1135, 930 NYS2d 54 [2d Dept 2011]. The burden is on the petitioner to show that there is no rational basis for the board's determination (Matter of Grossman v Rankin, 43 NY2d 493, 402 NYS2d 373 [1977]). A court may not substitute its judgment for that of the board (Matter of Ball v New York State Dept. of Envtl. Conservation, 35 AD3d 732, 826 NYS2d 698 [2006]; Smith v Board of Appeals o.f the Town o.f Islip, 202 AD2d 674. 675, 609 NYS2d 912 [2d Dept 1994]). Nor may the court weigh the evidence or reject the choice made by the zoning board where the evidence is conflicting and room for choice exists (Calvi v Zoning Bd. <?f Appeals of City of Yonkers, 23 8 AD2d 417, 656 NYS2d 313 [2d Dept 1997]; see Toys R Us v Silva, 89 NY2d 411, 654 NYS2d 100 [1996]). [* 4] Smith v lslip ZBOA Index No . 13-27589 Page No. 4 Pursuant to Tovvn Law§ 267-b (3) (b), a zoning board considering a request for an area variance must engage in a balancing test, weighing the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the surrounding neighborhood or community (see Matter of Pinnetti v Zoning Bd. of Appeals of Vil. of Mt. Kisco, 10 l AD3d 1124, 956 NYS2d 565 [2d Dept 20 121; Matter of Jonas v Stack/er, 95 AD3d 1325, 945 NYS2d 405 [2d Dept 2012], Iv denied 20 N YJd 852 , 957 NYS2d 689(2012]; see also Matter of Pecorano v Board of Appeals of Town of Hempstead, 2 NY3d 608 , 781 NYS2d 234). A zoning board also must consider whether the granting of an area variance will produce an undesirable change in the character of the neighborhood or a detriment to neighboring properties; whether the benefit sought by the applicant can be ach ieved by some other feasible method, rather than a variance; whether the requested variance is substantial; whether granting the variance will have an adverse impact on the physical or environmental conditions in the neighborhood; and whether the alleged difficulty is self-created (Town Law§ 267-b(3)(b); see Matter of Pinnetti v Zoning Bd. of Appeals of Vil. of Mt. Kisco, supra; Matter of Alfano v Zoning Bd. of Appeals of Vil. of Farmingdale, 74 AD3d 961 , 902 NYS2d 662 ; see also Matter of Danieri v Zoning Bd. of Appeals of Town of Southold, 98 AD3d 508, 949 NYS2d 180 [2d Dept] , lv denied 20 NY3d 852, 2012 NY Slip Op 91377 [2012]). However, a zoning board is not required to justify its determinations with evidence as to each of the five statutory factors, as long as its determinations "balance the relevant considerations in a way that is rational" (Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 73, 886 NYS2d 442 ; see Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 841 NYS2d 650 [2d Dept 2007]). Based upon the record and pursuant to the foregoing requirements, the ZBA issued findings determining that the vast majority of the properties in the subject neighborhood conform with the dimensional requirements of the Town Code. The relief sought would be inconsistent with the prevailing conditions in the neighborhood, and approval would create an unwarranted precedent for future development and undermine the Town Code by encouraging further divergences. The ZBA conc luded that the proposed development would not be in keeping with the nature and character of the area . The ZBA also found that: the benefit sought could be achieved by an alternative, feasible method, perhaps by purchasing land from the adjoining properties, which were oversized ; the requested variances were substantial, with the lot area being a 46% variance from the requirements of the Residence "B" zon ing district and the side yards being a 50% variance; the requested variance is self-created; and that approval would have an adverse impact on the neighborhood . After conducting two hearings on the matter in which petitioner ' s representative appeared, the /'.8/\ consi dered the benefit to petitioners as weighed against the detriment to the health, safety and we! fore of the surrounding community. The ZBA also weighed and applied the five aforementioned !'actors, in compliance with Town§ 267-b (3) (b) and controlling case law, when reaching its decision on petitioner's application and issued findings explaining the basis for its decision. The Court, therefore, finds that the ZBA 's denial was supported by evidence in the record and was not arbitrary or capricious. Accord ingly, the instant petition, to the extent it seeks relief pursuant to Article 78 , is denied That portion or thi s action/proceeding which seeks a judgment pursuant to CPLR 3001 declaring that the denial of petitioner's application deprived petitioner of vested prope1ty rights , without due process of law and without just compensation is denied. Denial of a permit, even an arbitrary denial [* 5] Smith v Islip /BOA Index No. 13-27589 Page No . 5 rcdressablc by a CPLR article 78 or other state law proceeding, is not tantamount to a constitutional violation under 42 USC § 1983; significantly more is required (Bower Assoc. v Town of Pleasant Valley .. 2 NY3 d 617 , 627 , 781 NYS2d 240, [2004]). To establish its substantive due process claim , petitioner was required to prove that, without legal justification, it was deprived of a vested property interest, consisting of "'more than a mere expectation or hope" of obtaining a permit or a variance (Town of Orangetown v Magee, 88 NY2d 41, 52, 643 NYS2d 21,[ 1996]; see Kreamer v Town of Oxford, 91 AD3d 1157, 938 NYS2d 220 [3d Dept 2012] ). Petitioner has failed to establish that it had any vested property right. The prior nonconforming use was lost when th e dwelling on the property was destroyed in a fire and any new structure on the subject property was required to be built in conformity with the Town Code . Otherwi se, petitioner was required to seek variances in order to obtain a building permit. As petitioner's variance application was properly denied, petitioner failed to establish it was denied due process. Petitioner's request for a judgment pursuant to CPLR 3001 declaring that Chapter 68 of the Code of the Town of Islip is unconstitutional and void as a matter of law for prohibiting development of the subject premises must also be denied. When an interpretation involves a determination regarding a nonconforming use, an owner who challenges the zoning board faces a " burden of persuasion [that] is high because of the law's traditional aversion to nonconforming uses" (Matter of Pelham Esplanade v Board of Trustees of Vil. of Pelham Manor, 77 NY2d 66, 70, 563 NYS2d 759 [1990]; see also Seal Realty Corp. v DeSalvo, 234 AD2d 550, 651 NYS2d 581 [2d Dept 1996)). Nonconforming uses are generally viewed "as detrimental to a zoning scheme, and the overriding public policy of zoning ... is aimed at their reasonable restriction and eventual elimination" (Matter of Toys "R" Us v Silva, 89 NY2d 411, 417, 654 NYS2d I 00 [1996]; see Verstandig's Florist v Board of Appeals of Town of Bethlehem, 229 AD2d 851, 852 , 645 NYS2d 635 [3d Dept 1996]). Furthermore, zoning ordinances are "invested with an exceedingl y strong presumption of constitutionality" (Town of Huntington v Park Shore Country Day Camp, 4 7 NY2d 61, 65, 416 NYS2d 774 [ 1979]; see also McGowan v Cohalan , 41 NY2d 434, 436, 393 NYS2d 376 [1977)). A landowner who challenges the constitutionality of a zoning ordinance as applied to a particular parcel of property bears a heavy burden of demonstrating beyond a reasonable doubt, with " dollars and cents" proof, that under no use permitted by the ordinance, would the property be capable of producing a reasonable return (Kransteuber v Scheyer, 80 NY2d 783, 587 N YS2d 272 [1992]: de St. Aubin v Flacke, 68 NY2d 66, 77 , 505 NYS2d 859 [1986]; see also Linzenberg v Town of Ramapo, l AD3d 321, 766 NYS2d 217 [2d Dept 2003]). The record herein is bereft of any .. dollars and cents" proof that under no use permitted by the ordinance, would the property be capable of produci ng a reasonable return and, therefore, there is no legal basis for the relief sought by the petiti oner. Accordingly, th e defendants is entitled to entry of judgment declaring that the denial of petitioner 's app licati on did not deprive petitioner of vested property rights without due process of law and further that Chapter 68 of the Code of th e Town ofislip is cAnstitutional and enforceable. Settlcjudgmcnt. // ' / ""1 // / l .. · ///if,~1 ~ ../ ... /A'·~,t,:t11;..,1_1z~/1 /yt'Wt{L . , .~;(,~ /r/! . _ : ' A.J.S.C. // \.. Ii' / :.. 0 _

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