Mejia v Bowwers

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[*1] Mejia v Bowwers 2018 NY Slip Op 51787(U) Decided on December 7, 2018 Supreme Court, Suffolk County Berland, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2018
Supreme Court, Suffolk County

Eliseo Mejia and EDWIN LUMEZ, Petitioners,

against

James H. Bowwers, Chairman, MICHAEL A. GAJDOS, Vice Chairman, WILLIAM D. WEXLER, JOHN M. LORENZO and DANIEL J. SULLIVAN, constituting the Zoning Board of Appeals of the Town of Islip and THE ZONING BOARD OF APPEALS OF THE TOWN OF ISLIP, Respondents.



17-6167



PETITIONERS' ATTORNEY:

DAVID MORAN, ESQ.

96 SOUTH OCEAN AVENUE

PATCHOGUE, NY 11772

RESPONDENTS' ATTORNEY:

ISLIP TOWN ATTORNEY

655 MAIN STREET

ISLIP, NY 11751
Sanford N. Berland, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Petition, dated November 30, 2017, and supporting papers; (2) Affirmation in Opposition, dated March 1, 2018, and supporting papers; (3) Return, including the full and complete records of the papers on file with the Zoning Board of Appeals, certified on February 8, 2018; it is



ORDERED that the petitioners' application pursuant to Article 78 of the CPLR is denied; and it is further

ORDERED that this matter shall be marked "disposed."

This Article 78 proceeding seeks judicial review of a determination by respondent Board of Zoning Appeals of the Town of Islip ("BZA"), which denied petitioners' application for an area variance that would allow petitioners to attach a detached garage to a dwelling with an enclosed breezeway and for permission to establish an accessory apartment. For the reasons set forth herein, the petition is denied.

Petitioners Eliseo Mejia and Edwin Lumez are the owners of real property in the Town of Islip known as 1679 Westwood Boulevard, Bayshore, New York. Zoned "Residence B," the property abuts Westwood Boulevard and Elm Drive, and is improved with a single family residence, a detached garage, and a patio. The lot measures approximately 122 feet in width and 83 feet in depth. The record indicates that the detached garage was constructed in 2008 and was thereafter established as legally existing by a decision of the BZA dated December 17, 2014 permitting petitioners' to maintain the garage.

Subsequently, on or about April 25, 2017, the petitioners filed an application with respondent BZA for the aforementioned area variance. The application sought both a relaxation of the rear yard setback to 10.1 feet from the permitted 25 feet and a relaxation of the side yard setback to 11.2 feet from the permissible 14 feet, which were prerequisites to the structures being attached and thus constituting one dwelling. The application also sought permission establish an accessory apartment, for which attaching the structures as one dwelling was a prerequisite.

On or about August 29, 2017 the BZA held a public hearing on petitioners' application. By decision dated October 24, 2017, the BZA denied petitioners' requests on the grounds that the relaxation of the rear yard setback was "extremely substantial," it has never previously granted similar variances in the surrounding neighborhood, it previously denied an application in 2005 seeking permission to erect a one story addition to the dwelling leaving a rear yard setback of 13 feet, and the petitioners created their own hardship. The BZA further determined that because the application for the breezeway was denied, it could not grant the request to establish an accessory apartment pursuant to the Town Code.

Subsequently, petitioners commenced the instant Article 78 proceeding. Petitioners allege that the BZA determination lacked substantial evidence and was conclusory. The respondents aver that the BZA determination was neither arbitrary nor capricious and was based on the evidence contained in the records. Respondents further contend that the breezeway is a subterfuge that attempts to circumvent the Town Code, which prohibits accessory apartments from being located in accessory structures.

A local zoning board has broad discretion in considering applications for area variances (see Pecorano v Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 [2004]; Cowan v Kern, 41 NY2d 591, 394 NYS2d 579 [1977]), and its interpretation of the local zoning ordinances is entitled to great deference (see Toys "R" Us v Silva, 89 NY2d 411, 654 NYS2d 100 [1996]; Gjerlow v Graap, 43 AD3d 1165, 842 NYS2d 580 [2d Dept 2007]; Brancato v Zoning Bd. of Appeals of City of Yonkers, NY, 30 AD3d 515, 817 NYS2d 361 [2d Dept 2006]; Ferraris v Zoning Bd. of Appeals of Village of Southampton, 7 AD3d 710, 776 NYS2d 820 [2d Dept 2004]). A court, however, may set aside a zoning board's determination if the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or succumbed to generalized community pressure (see Pecorano, supra; Cacsire v City of White [*2]Plains Zoning Bd. of Appeals, 87 AD3d 1135, 930 NYS2d 54 [2d Dept 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" (Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118, 1119, 944 NYS2d 277 [2d Dept 2012]; see Ifrah v Utschig, 98 NY2d 304, 746 NYS2d 667 [2002]; Caspian Realty, Inc v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 886 NYS2d 442 [2d Dept 2009]). The decision of an administrative agency "which neither adheres to its own prior precedent nor indicates a reason for reaching a different result on essentially the same facts is arbitrary and capricious" (Charles A. Field Delivery Serv. (Roberts), 66 NY2d 516, 517, 498 NYS2d 111 [1985]; see Knight v Amelkin, 68 NY2d 975, 510 NYS2d 550 [1986]; Hamptons, LLC v Zoning Bd. of Appeals of Village of East Hampton, 98 AD3d 738, 950 NYS2d 386 [2d Dept 2012]; Lucas v Board of Appeals of Village of Mamaroneck, 57 AD3d 784, 870 NYS2d 78 [2d Dept 2008]).

Pursuant to Town 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 Pecorano, supra; Daneri v Zoning Bd. of Appeals of Town of Southold, 98 AD3d 508, 949 NYS2d 180 [2d Dept 2012]). More particularly, the zoning board 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 achieved 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 Pecorano, supra; Sasso v Osgood, 86 NY2d 374, 633 NYS2d 239; Davydov v Mammina, 97 AD3d 678, 948 NYS2d 380 [2d Dept 2012]). Further, 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" (Caspian, supra; see Jacoby Real Prop., LLC v Malcarne, 96 AD3d 747, 946 NYS2d 190 [2d Dept 2012]; Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 841 NYS2d 650 [2d Dept 2007]).

The BZA determination denying petitioners' application was not arbitrary and capricious and was supported by substantial evidence in the record. Here, the BZA reasonably determined that the breezeway was an attempt to circumvent the town code by relaxing setbacks to join two structures as one dwelling to allow for an accessory apartment notwithstanding a previous application for an addition to the dwelling, which would have included a rear yard setback at only 13 feet, was denied. It also reasonably determined that the requested back yard variance was substantial, requiring a 60% reduction from the permissible setback, and that, in any event, the need for a variance was a self-created hardship, as applicants are charged with knowledge of the Town Code and the zoning requirements for the particular parcel. It also reasonably determined that the variance would produce an undesirable change in the character of the neighborhood, as no similar variance has previously been granted here.

In sum, the ZBA properly applied the balancing test pursuant to Town Law §267-b (3)(b) [*3]in considering petitioner's application for an area variance and permission to establish an accessory apartment. A review of the record shows that the denial of the requested variance was rationally based. Thus, the Article 78 petition is denied and the proceeding is dismissed.

The foregoing constitutes the Decision and Order of the court.



Dated: December 7, 2018

Riverhead, New York

___________________________________________

HON. SANFORD NEIL BERLAND, A.J.S.C.