Bellridge, LLC v Zoning Bd. of Appeals of the Inc. Vil. of Bellport
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Bellridge, LLC v Zoning Bd. of Appeals of the Inc. Vil. of Bellport 2017 NY Slip Op 31253(U) May 30, 2017 Supreme Court, Suffolk County Docket Number: 2160-2016 Judge: Denise F. Molia 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] copy Index No.: 2160-16 SUPREME COURT - STATE OF NEW YORK l.A.S. Part 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA. Justice CASE DISPOSED: YES MOTION RID: 3/31 / 16 SUBMISSION DATE: 2/3/ 17 MOTION SEQUENCE No.: 00 l MD BELLRIDGE, LLC, PAUL F. BUTLER, and PATRICIA C. BUTLER, Petitioners, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules, - against THE ZONING BOARD OF APPEALS OF THE INCORPORATED VILLAGE OF BELLPORT, HOW ARD BRICKNER and TRACY MAK.OW BRICKNER, ATTORNEY FOR PETITIONER Egan & Golden, LLP 96 South Ocean A venue Patchogue, New York 11772 ATTORNEYS FOR RESPONDENT David J. Moran, Esq. 96 South Ocean A venue Patchogue, New York 11772 Garrett W. Swenson, Jr. 76 Bay Road Brook.haven, New York 11719 Respondents. Upon the following papers filed and considered relative to this matter: Notice of Petition and Verified Petition dated February 26, 2016; Exhibits A through C annexed thereto; Verified Answer dated July 20, 2016; Exhibit A annexed thereto; Verified Answer dated July 19, 2016; Respondents' Return; Exhibits A through U annexed thereto; Petitioners' Reply Memorandum of Law; and upon due deliberation; it is ORDERED, that the petition ofBellridge, LLC, Paul F. Butler, and Patricia C. Butler, pursuant to CPLR Article 78, for an Order annulling and setting aside the decision filed by the respondent Zoning Board of Appeals of the Incorporated Village of Bellport on February 12, 2016, is denied. The petitioners seek to review and annul the decision of the respondent Zoning Board of Appeals, which granted the variance application of respondents, Howard Brickner and Tracy Makow Brickner, for the construction of a 696 foot addition to the rear of their residence located at 30 Academy Lane, Bellport, New York. 1 [* 2] Petitioner Bell ridge. I .I .C' ("'Bell ridge.. ) is the owner of record for the real property known as 32 Academy Lane, Bellport, New York. where petitioners Paul F. Butler and Patricia C. Butler rcsi<l<.!. The respondents. I Joward Brickner and Trn<.:y Makow Brickner. are the adjoining neighbors of the petitioners. and reside at the subject premises located at 30 Academy Lane. The suhjcct premises is a single family dwelling located in an .. A .. Residence Zoning District. During the Summer 2015. the respondents submitted an appli<.:ation to the Village of Bel Iport 11uilding Department for the approval of a 696 foot addition to their house. The appli<.:ation was referred to the Zoning Board of Appeals ("ZBA .. ) for variance relief since the proposed addition would exceed the side yard sethack requirements of the Village Code. Section 21-221 the Bellport Village Code requires a total combined side yard of 60 feet and that no one side yard shall he less than 20 feet in width. The proposed addition would maintain a 14 foot 10 inch single side yard and a 39 foot 9 inch total of both yards. or Public hearings were held before the Zoning Board of Appeals on October 15, 2015 and December 17, 2015. Testimony was offered both in support o( and in opposition to the subject application. By Decision dated February 12. 2016, the ZBA granted the application of the respondents. The petitioners contend that the subject dwelling constitutes a nonconforming bui lding under the Bellport Village Code ("Code"), where *21-1 defines a building as ''a structure with a roof supported by columns and/or walls:· The same section defines a structure as "a combination o f materials erected on, under the ground, or upon another building and/or structure. A structure shall include. but not limited to, fences, decks, patios, arbors, pergolas. pavilions, terraces, canopies. and tents larger than I 00 square feet, platforms, signs, athletic courts, hot tubs. spas and swimming pools. A deck, patio, terrace or platform having an elevation of seven and one half inches from the ground shall not be considered a structure:· The Village Code defines "dwelling. single ramily'" as a ·'detached house consisting or intended to be occupied as a residence by one family only, as ·family.,.. It is noted that the subject prope11y was issued a Certificate of Occupm1cy ("'CO") as a single family dwelling as dclincd by §21- 1 of the Code. The respondents submit that the terms '"building'· and ..structure·· refer to designations that appear on C()"s issued in Commercial or Business Districts. while ··dwelling·· is used to designate residences in residential districts. The Brickncr's premises constitutes a residential dwelling in a Residence ..A .. zoning district. which is inhabited only for residential purposes. There is no evidence to suggest that the premises arc being utilized for a nonconforming use within a Residence .. A .. district. If the subject dwelling were to be considered a building for zoning purposes. the petitioners rurther contend that such dwelling constitutes a nonconforming building under §21-1 the Code. since the side yards arc of less footage than that permitted under ~21-22 l of the Code. As such, petitioners alleged that ~21-86{c) of the Code prohibits the enlargement of nonconforming buildings unless two specific conditions arc met, and therefore the ZBA only possesses limited authority to grant area variances for nonconforming structures. Petitioners or 2 [* 3] f urthcr maintain that the published legal notice improperly only identified the su~jcct application as one for side yard setback relief under §21-221. and foiled to identify the dwelling as a nonconforming structure requiring consideration under Code §21-86. Section 21-86 of the Bellport Village Code provides as follows: Nonconforming buildings and structures; nonconforming uses. (a) I\ nonconfonning building or structure that legally exists may continue except as provided herein. A nonconforming building or structure shall be considered legally existing if the entire building or structure. as presently configured and used. has a valid certificate of occupancy (CO) and/or, certificate of zoning compliance (CZC and/or a certi ficate of existing use (CEU) for it. No unlawful existing noneonfonning building or structure shall be used or occupied. (b) The building inspector may issue a CEU for a nonconforming building or structure constructed prior to the enactment of the law or laws that render it nonconforming~ so long as the present use of the building or structure is permitted in the zoning district at the time of the application. If the current use of the building or structure is not permitted then the building inspector shall refer the matter to the zon ing hoard of appeals for a ruling as to the validity of the application before the building inspector may issue a CEU for the nonconforming use. (c) A legally existing nonconforming building or structure shall nol be enlarged. expanded or altered except as follows: (I) The use of the building or structure is permitted and conforms with the requirements of this chapter. and (2) The proposed enlargement, expansion or alteration of the building or structure conforms with all area requirements or this chapter. excepting minimum lot area and street frontage requirements. In no event shall the degree nonconformity be increased. or (d) No building. structure or lot used for a nonconforming use shall be enlarged. expanded or altered. A nonconforming use may be changed to a conforming use. Immediately. upon said change. the nonconforming use shal I be deemed abandoned. (c) I\ building. structure or lot used ft)r a nonconforming use shall be deemed abandom:d \\hen such use has been discontinued for a period 3 [* 4] of twelve ( 12) consecuti ve months. A nonconforming use that has been abandoned shall not be thereafter reinstated. On the basis of the language of the above statute. the petitioners allege that §2 I -86( d) consti tutes an absolute prohibition on the allcrati on of a lot on which there exists a nonconforming use. The petiti oners further contend that §21-86( c) bars the expansion of a nonconforming building unless the two stated criteria of that section are met. The petitioners maintain that the title associated with Code §2 1-86. '"Nonconforming build ings and structures; nonconforming uses'', demonstrates an applicability of that scctjon to both nonconforming buildings and nonconfonning uses. The respondents suggest that the punctuation of that title demonstrates the intention of the code provision to address issues concerning nonconforming buildings and structures with the larger context of nonconforming uses, and is therefore not appli<.;ablc under the instant circumstances in which the subject dwelling docs not constitute a nonconforming use. As such, the respondents contend that the ZBA properly treated the Brickner application as one for typica l area variance relief. The Court agrees wi th the interpretation or the respondents and finds that, petitioners' contentions to the contrary, Code §21 -86 governs noncon formi ng buildings and structures that also constitute nonconforming uses. which is not the circumstance in this matter. Accordingly. the ZBA was correct to considcrthe subject application without affording deference to Section 21-86 of the Code. By decision dated February 11 , 2016. the ZBA approved the subject application fo r area vananccs. In making determinations on area variance applications, Town Law §267-h(3 )(B) requires a Zoning Board of Appeals to consider whether: I. an undesirable change will be produced in the neighborhood or a detriment to nearby properties will be created by the granting of the area vari ance; 2. the benefit sought by the applicant can be achieved by some other, feasible method: 3. whether the requested area variance is substantial: 4. the requested variance wil l have an adverse elkct or impact on the physical or environmental conditions in the neighborhood: and 5. the alleged difficulty was self created. wh ich consideration shall be relevant lo the decision of the Zoning Board. but shall not necessarily prec lude the granting of the arl!a variarH.:e. In its decision dated February 11. 20 16. the I.BA stated the facts as set forth in the application and presented at the hearing by the applicant. and notes the objections expressed by [* 5] the petitioners. The ZBA then made the following conclusions: /\.: That there will not be an undesirabk change in the nature and character of the neighborhood. a detriment to nearby propc11ies. and the granting of the variance would not create nor have an adverse impact on the physical and environmental conditions in the neighborhood . The Board finds that the applicant met his burden by presenting this Roard with credible c\·idence attesting lo similar properties maintaining similar side yard setbacks. 13: The Board concludes that th~ requested reJ ief is not substantial. espccially when considering what actually exists on the ground in the surrounding community and the prior grants of this Board which created more substantial side yard setbacks than that requested herein. C: The Board concludes that the benefit sought by the applicant cannot be achieved by some method, foasible for the applicant to pursue, other than seeking such a variance from this Board. D. The Board finds that any hardship suffered by the appl icant is not sci r-crcatcd in nature. as the applicant has proven that no other suitable location exists for the proposed addition. The instant proceeding was subsequently commenced by the petitioners. alleging that the aforesaid decision of the respondent Board was i1TationaL arbitrary and capricious. and not supported by the evidence submitted and the record before it. The Court of /\ppeals has reaffirmed the limited role of the courts in the review or decisions issued by local land use boards as follows: .. As with board determinations on variances, a reviewing court is hound to examine only whether substantial evidence supports the detcrminat ion of the board. Where substantial evidence exists. a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record." Retail Prone1ty Trust v. Bd. of Zoning Appeals of Town of I Icmpstead, 98 N.Y.2d I 90. 196. (Sec also. Matter of P.M.S. Ltd. v. Zoning Board. 98 N. Y.2d 683: Matter oflfrah v. ll tschig. 98 . Y.:!d 304) The reason for the limited scope of judicial review was set forth by the Court or Appeals in Cowan v. Kern. 41 N.Y. 2d 591at599. as follows: "The crux of the matter is that the responsibility for making zoning decisions has been committed primarily [* 6] to quasi-legislative. quasi-administrative boards composed of representatives from the local community. Local officials generally possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness. it is for the locally selected and locally responsible officials to detennine where the public interest in zoning lies. (McGowan v. Cahalan, 41 N. Y.2d 434, 438. supra.) Judicial review of local zoning decision is limited; not only in our court but in all courts. Where there is a rational basis for the local decision, that decision should be sustained.'" Under the circumstances presented, the Court finds that the findings of the respondent Board arc rational and supported by the substantial evidence on the record, and are not found to be ultra vires, arbitrary, capricious, erroneous as a matter of law, or an abuse of discretion. Accordingly, the petition is dismissed. The foregoing constitutes the Order of this Court. Dated: May 30. 2017 HON. DENISE 6 r. MOLi/\ A.J.S.C.
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