Opinion
08-44875.
October 23, 2009.
SCHEYER JELLENIK, Attorneys for Petitioner, Nesconset, New York.
KAREN M. WILUTIS, ESQ., Brookhaven Town Attorney, By: David J. Moran, Assistant Town Attorney, Attorneys for Respondents, Farmingville, New York.
Upon the following papers numbered 1 to 58 read on this petition pursuant to Article 78; Notice of Motion/Order to Show Cause and supporting papers (002) 1 — 12; Notice of Cross-Motion and supporting papers__; Answering Affidavits and supporting papers 13-15; 16-56; Replying Affidavits and supporting papers__57-58; Other______; it is
ORDERED that this application (002) by the petitioner, Robert Martino, pursuant to CPLR Article 78 for a judgment granting the petition is denied and the petition is dismissed.
The petitioner is the owner of two parcels of real property, both of which have frontage on Glenwood Road, Sound Beach, Town of Brookhaven, State of New York (hereinafter Glenwood Road). The first parcel is approximately 54.5 feet wide on Glenwood Road and 58.3 feet wide in its rear. The second parcel has 100 feet of frontage on Van Buren Avenue, an unopened street, 90 feet of frontage on Fifth Street, also an unopened street, and 40 feet of frontage on Glenwood Road. The rear of lot A and the side of lot B abut and their connection is the 35 feet of common title ownership. The petitioner's residence is on lot A. The two lots were merged by operation of law when the two lots were put in the same name in 1945, when the previous owner of lot A purchased lot B, approximately thirteen years after the house was built. The petitioner alleges that each parcel is on a different tax map, that each has a separate tax bill, and are essentially in different communities and asserts the parcels constitute a back-to-back or through street split.
The petitioner applied to the Town of Brookhaven (hereinafter Town) Department of Planning, Environmental Protection, to subdivide the two parcels into their separate original configurations maintaining existing lot lines. A first hearing was conducted by the Town Zoning Board of Appeals (hereinafter ZBA) on April 23, 2008, and a second (holdover) hearing was conducted on September 10, 2008. Ultimately, the application to subdivide the two parcels was denied by the ZBA in a decision, dated November 12, 2008. This denial is the subject of this Article 78 proceeding. The petitioner asserts that the numerous issues raised in the decision were legally unsound and were not based on factual or competent evidence, the most serious being the testimony taken as community opposition.
The November 12, 2008 ZBA decision states that the subject parcel as a whole is approximately 14,755 square feet, located on Glenwood Road in a B-1 residence district. The Town Code § 85-56 requires 22,500 square feet minimum lot area, making this parcel substandard by 35%. The proposal would create two lots, lot A measuring 5,647 square feet, and lot B measuring approximately 9,108 square feet. The ZBA found that the requested lot area variances required approximately 75% relaxation of the Town Code for lot A and 60% relaxation of the Town Code for lot B as the applicant sought to subdivide an already substandard parcel, and that it would further require 14 substantial variances.
For parcels located in a B-1 residential district, the Town Code § 85-56 requires that the parcel must maintain 125 feet of lot frontage, and the request for only 55 feet of lot frontage on Glenwood Road for lot A, and 40 feet of lot frontage on Glenwood Road for lot B represents respectively a 56% and a 68% relaxation of the required frontage. The request for only 40 feet of lot frontage on Fifth Street for lot A and 91 feet of lot frontage on Fifth Street for lot B represent a 68% and 27% relaxation of the Town zoning requirements, respectively. The request for 100 feet of lot frontage on Van Buren Avenue for lot B represents a 20% relaxation of the Town Code.
Town Code § 85-56 also requires in a B-1 residential district a 40 feet front yard, and the request for approximately 18.3 feet of front yard from Fifth Avenue for lot A represents a 55% relaxation of the Town Code, and a request for 8 feet of front yard from Fifth Street for an existing deck on lot A represents an 80% relaxation of the Town Code. The requested 30 feet of front yard from Glenwood Road, Fifth Street and Van Buren Avenue for lot B each represents a 25% deviation from the Town Code. The Town Code § 85-56 also requires the subject parcel to maintain 20 feet of minimum side yard and the applicant's request for approximately 9.3 feet of side yard from an existing second story deck on lot A is approximately a 54% relaxation of the Town Code, and the request for an 18 feet minimum side yard for lot B represents an approximate 10% relaxation of the Town Code. The large number of variances being requested was due in part because there are two paper streets abutting the property. The ZBA did not find persuasive that the applicant would still require a total of 11 substantial variances if the paper streets did not exist.
The ZBA also stated in its November 12, 2008 decision that although the applicant sought to build a new house on lot B for his immediate family to live and enable him to move his grandmother and aunt into the existing house on lot A, this was not a hardship significant enough to warrant the granting of 14 substantial variances. As such, the ZBA found these requested variances individually and collectively substantial as they varied from the requirement of the Town Code as well as the existing development in the area. The ZBA determined that there were 83 improved residential lots within the 500 feet radius of the subject parcel with the same zoning classification, and of those 83 lots, only 5 lots had a lot area equal to or less than the proposed lots, and only 8 lots had a lot frontage equal to or less than what is proposed, and the applicant's proposal would maintain only 6% conformity in terms of lot area and 10% conformity in terms of lot frontage to developed lots in the area. No evidence was submitted that those same improved substandard lots were the result of any grant from the ZBA. The area is deemed a high density residential area.
The ZBA considered testimony offered from Patrick Geraghy, Esq. on behalf of his clients, Mr. and Mrs. Thomas Reilly, who live directly adjacent to the subject property and claim they already suffer drainage problems in their yard and that the construction of a dwelling and the accompanying impervious surfaces at a higher elevation than their own dwelling would only exacerbate the problem. Mr. and Mrs. Dominick Vivo who reside at 26 Franklin Road expressed concerns that their property value would be negatively affected by the construction of such a large dwelling on a substandard lot.
The ZBA rejected the applicant's legally unsupported claim that due to the back-to-back nature of the proposed land division the balancing test found in Town Law § 267(b)(3)(b) could be ignored. The ZBA also noted that a cursory review of the radius map revealed there were similarly situated properties which could possibly request similar or the same relief as presented in the present application and as such the granting of the application would create a negative precedent. The ZBA also found that the applicant had other feasible alternatives to pursue, such as additions and other amenities to the subject property without obtaining the substantial variances.
The ZBA found that in 1964, the applicant's parcel was up-zoned from C residence to B-1 residence increasing the lot area needed for residential dwellings to protect groundwater and surface water quality as well as to limit the burden on the public facilities and infrastructure. The ZBA stated that the applicant acquired the lots in 2005, well after the properties were merged and the up-zoning took place. The ZBA also found that the hardship claimed by the applicant was self-created as the applicant chose to submit a plan requiring 14 individually and collectively substantial variances in conjunction with this two lot land division.
The ZBA further determined that when two parcels with frontage on two parallel public streets and adjoining rear yards have been merged, they can still retain their original single and separate nature if certain criteria are met. The ZBA determined that the parcel did not meet the description of a back-to-back lot and the applicant did not meet his burden of proving the parcel was actually two separate and single lots. The parcel did not have frontage on parallel public streets and due to the configuration of the paper streets, the parcel had frontage on multiple perpendicular streets. Due to the placement of the two paper streets the subject parcel could never have adjacent rear yards as Glenwood Road is the only open public street from which there can be access to the subject parcel. Even if the applicant were to designate the yards fronting on Glenwood Road as the front yards, the applicant would then be requesting a land division along the side yard of lot A and the front yard of lot B.
In applying the two-prong test set forth in Cicenia v Zoning Board of Appeals of the Town of Brookhaven , 157AD2 722, 549 NYS2d 818 [2nd Dept. 1990], the ZBA stated that the applicant was required to prove that during the period of common ownership the parcels were never used in conjunction with one another and that neither parcel materially enhanced the value or utility of the other. Although the petitioner argues otherwise that it had always been a previous owners intention to build on lot B and that the lots maintained their single and separate status, no evidence in support of this claim was submitted to the ZBA. The ZBA found that there was a shed on lot B, slated to be removed, which the previous owners used in conjunction with the dwelling on lot A. The applicant removed the structure just prior to appearing before the ZBA. The ZBA found that the applicant failed to prove that the two lots were never used in conjunction with one another.
The ZBA stated that balancing the factors set forth in Town Law § 267(b)(3)(b), the detriment to the health, safety and welfare of the neighborhood and community outweighed the applicant's need for the requested variances and the ZBA denied the application.
The applicant argues that Cavallo v Trotta , Index No. 03-005821 (Suffolk County) is applicable to the instant action. Cavallo involved A-1 zoning in the Town wherein application was made to subdivide a lot which was 50 feet by 200 feet into two lots 50 feet by 100 feet. The lots were separated by a fence down the middle in a "back-to-back split" and there was a "very long" period of ownership and no evidence was presented to show they were ever used in conjunction with each other.
A back-to-back split parcel occurs when the parcels "share a common rear boundary and nave frontage on two parallel streets" ( Matherson v Scheyer et al , 20 AD3d 425, 799 NYS2d 86 [2nd Dept 2005]). Parcels with frontage on separate parallel public streets are separate and distinct plots where they substantially meet the depth characteristics of the area as it has developed, notwithstanding their common ownership and rear continuity ( Guazzo et al v Chave et al , 50 Misc2d 1050, 301 NYS2d 193 [Supreme Court of New York, Special Term, Nassau County 1969]). However, in the instant action the zoning is B-1, only a portion of the properties abut with a 35 feet overlap on what is claimed to be the rear of lot A and the rear of lot B. Access to both parcels comes from Glenwood Road as there are only paper roads to the perimeter of lot B. Consequently, there is no parallel road, and the petitioner indicated an intent to abandon Fifth Street adjacent to the parcel. Lots in back-to-back split formation are deemed not to have merged where it is shown that, during the period of common ownership, the parcels were never used in conjunction with one another and neither parcel materially enhanced the value or utility of the other ( Matherson v Scheyer et al , supra; compare, Baretto et al v Zoning Board of Appeals of Incorporated Village of Bayville et al , 123 AD2d 692, 507 NYS2d 57 [2nd Dept 1986] where no merger was found during the short period that they were in common ownership). Here, although lot B was wooded, it was utilized for an accessory shed which the petitioner removed just prior to the application. Additionally, the petitioner did not demonstrate that the lot in question has been held in single and separate ownership since before the enactment of the pertinent zoning regulations in 1969 and thus he did not demonstrate entitlement to the necessary variance to enable him to build on the lot (see, Cange v Scheyer et al , 146 AD2d 594, 536 NYS2d 836 [2nd Dept 1989]).
"It is incumbent upon the zoning board to establish that strict application of the zoning ordinance was necessary to promote and protect public health, safety, and welfare and that the need to promote the public good outweighs the injury to the petitioner. In reaching this determination, a board must consider: (1) how substantial the variance is in relation to the requirements of the zoning ordinance, (2) whether the granting of the variance will result in a substantial change in the character of the neighborhood, (3) whether the difficulty of the development within the parameters of the zoning ordinance can be obviated by some feasible method other than a variance, and (4) whether in view of the manner in which the difficulty arose, the interest of justice will be furthered by allowing the variance" (see, N.Y. Town Law § 267-b(3); CFS Realtly Corp. v Board of Zoning Appeals oaf the Town of North Hempstead , 7 AD3d 705, 776 NYS2d 834 [2nd Dept 2004]; Allt v Zoning Board of Appeals of Town of Hyde Park et al , 255 AD2d 311, 679 NYS2d 422 [2nd Dept 1998]; In the Matter of Sakrel, Ltd v Roth et al , 176 AD2d 732, 574 NYS2d 972 [2nd Dept 1991]). The ZBA clearly stated the size of the lots and determined that the total square footage of the two lots was 35% less then the size required for a single lot. The ZBA found that the requested lot area variances require approximately 75% relaxation of the Town Code for lot A and 60% relaxation of the Town Code for lot B as the applicant sought to subdivide an already substandard parcel, and would further require 14 substantial variances (see, Bull Run Properties, LLC v Town of Cornwall Zoning Board of Appeals , 50 AD3d 683, 855 NYS2d 585 [2nd Dept 2008]). The ZBA determined that the petitioner could achieve use of the two parcels by adding an addition and amenities to his home and property to provide a home to accommodate his grandmother and aunt without the substantial variances (see, Bull Run Properties, LLC v Town of Cornwall Zoning Board of Appeals , supra).
The ZBA also noted a cursory review of the radius map revealed that there were similarly situated properties which could possibly request similar or the same relief as presented in the present application and as such the granting of the application would create a negative precedent. Compared to what existed in the area, the ZBA determined that there were 83 improved residential lots within the 500 foot radius of the subject parcel with the same zoning classification, and of those 83 lots, only 5 lots have a lot area equal to or less than the proposed lots, and only 8 lots have a lot frontage equal to or less than what is proposed, and the applicant's proposal would maintain only 6% conformity in terms of lot area and 10% conformity in terms of lot frontage to developed lots in the area.
Thomas Cramer of Cramer Consulting Group testified as an expert and stated he recently represented Richard Landbeck (hereinafter Landbeck) who inherited the property from his parents who bought lot A in 1931, built the house in 1940, and in 1945 bought the adjacent lot B which shares only a common 35 feet border. He stated it was Landbeck's intention to develop the second lot after getting a "split of the property", but he did not do so and no affidavit has been submitted by Landbeck to support this argument.
A variance application may not be denied solely on the ground that the hardship was self-inflicted and a variance may be properly granted notwithstanding this fact; however, the self-inflicted nature of the hardship is an important factor ( Sakral, Ltd. v Roth et al , supra; see also, Caspian Realty, Inc. v Zoning Board of Appeals of Town of Greenburgh , 2009 Slip Op 6837, 2009 NY App Div Lexis 6707 [2nd dept 2009]). The ZBA considered that the parcels merged in 1945 when lot B was purchased by the owner of lot A. The petitioner purchased the subject parcel in 2005. The ZBA indicated the petitioner's hardship was self-created.
The ZBA also considered the affidavit testimony of Daniel and Keri Rooney, dated September 8, 2008, two neighbors, concerning run off and drainage problems on their property and their concern about adding additional water run off if a home were built on lot B. They were concerned that the "waterfall" associated with rain runoff relative to the already significant grade of the land. The petitioner contends that the ZBA relied upon the testimony of local residents in denying his application. Generalized or unsubstantiated complaints from neighbors, unsupported by empirical or expert evidence are generally insufficient for the ZBA to base its decision regarding a variance request, but the ZBA's reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition (see, Caspian Realty, Inc. v Zoning Board of Appeals of Town of Greenburgh , supra).
"As a general proposition, local zoning boards have broad discretion, and `[a] determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence' (citing Matter of Pecoraro v Board of Appeals of Town of Hempstead , 2 NY2d 608, 781 NYS2d 234). Moreover, 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 (citing, Matter of American Legion Post #112 v Zoning Bd. of Appeals of Town of Mount Pleasant, N.Y. , 11 AD3d 457, 783 NYS2d 606, Iv denied 4 NY3d 706, 795 NYS2d 167)" ( Matherson v Scheyer et al , supra).
"[I]n a proceeding seeking judicial review of administrative actions, the Court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious ( Matter of Warder v Board of Regents , 53 NY2d 186, 440 NYS2d 875; Flacke v Onondaga Landfill Systems, Inc. , 69 NY2d 355, 514 NYS2d 689). Moreover, where the agency's determination involves factual evaluations in its area of expertise and is supported by the record, then the determination must be accorded great weight and judicial deference (citations omitted)" ( Flacke v Onondaga Landfill Systems, Inc. supra). "In weighing competing factors of a variance application, a reviewing court is mindful that its judicial responsibility is to review zoning decisions to assure that the statutory factors have been considered, but not, absent proof of arbitrary or irrational action, to make the decisions for the zoning boards. Local zoning boards have discretion in considering variance applications, particularly given their familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community" ( Caspian Realty, Inc. v Zoning Board of Appeals of Town of Greenburgh , supra). The burden is on the petitioner to show that the ZBA's denial of the permit was arbitrary and capricious ( see, Grossman v Rankin , 43 NY2d 493, 402 NYS2d 373, reh. den. 44 NY2d 733, 405 NYS2d 1030; see also Pell v Board of Education , 34 NY2d 222, 356 NYS2d 833), and the petitioner has failed to do so. Under the circumstances herein, the denial of the petitioner's application by the ZBA was supported by substantial evidence, balanced the interests and the evidence, and was not illegal, arbitrary, or an abuse of discretion.
Accordingly, the petitioner's application is denied and the application is dismissed.