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holding that “[t]he generalized and unsubstantiated concerns of neighboring owners, upon which the Zoning Board based its determination, that the character of the neighborhood would be detrimentally changed if the petitioner's application for variances was granted, were unsupported by any empirical data or expert testimony and were insufficient to counter the evidence presented by the petitioner”
Summary of this case from New York SMSA Ltd. Partnership v. Village of Floral Park Board of TrusteesOpinion
2003-01570.
Decided on January 12, 2004.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Putnam Valley dated March 21, 2002, which, after a hearing, denied the petitioner's application, inter alia, for area variances, the appeal is from a judgment of the Supreme Court, Putnam County (Hickman, J.), dated January 14, 2003, which granted the petition, annulled the determination, and remitted the matter to the Zoning Board of Appeals of the Town of Putnam Valley for the issuance of the requested variances subject to certain conditions.
David O. Wright, Mohegan Lake, N.Y., for appellant.
Gregg S. Baker, White Plains, N.Y. (Shamberg Marwell Hocherman Davis Hollis, P.C. [Robert F. Davis] of counsel), for respondent.
Before: THOMAS A. ADAMS and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, without costs or disbursements.
The Supreme Court properly annulled that portion of the determination of the Zoning Board of Appeals of the Town of Putnam Valley (hereinafter the Zoning Board). Although the petitioner's difficulty arguably was self-created, there was no evidence that the grant of the variances would "have an undesirable effect on the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community" ( Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 304 A.D.2d 761, 762; see Matter of 450 Sunrise Highway v. Town of Oyster Bay, 287 A.D.2d 714; Matter of Easy Home Program v. Trotta, 276 A.D.2d 553; Matter of Cassano v. Zoning Bd. of Appeals of Inc. Vil. of Bayville, 263 A.D.2d 506, 507). The record reveals the existence of several substandard lots adjacent to, or across the street from, the subject parcel, and other nearby nonconforming garages, similar to that sought to be erected by the petitioner, some of which were granted area variances from the street setback requirements of the relevant zoning ordinance ( see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra; Matter of 450 Sunrise Highway v. Town of Oyster Bay, supra; Matter of Easy Home Program v. Trotta, supra). The generalized and unsubstantiated concerns of neighboring owners, upon which the Zoning Board based its determination, that the character of the neighborhood would be detrimentally changed if the petitioner's application for variances was granted, were unsupported by any empirical data or expert testimony and were insufficient to counter the evidence presented by the petitioner ( see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra; Matter of 450 Sunrise Highway v. Town of Oyster Bay, supra; Matter of Necker Pottick, Fox Run Woods Bldrs. Corp. v. Duncan, 251 A.D.2d 333, 335). Thus, we agree with the Supreme Court that the denial of the variances was arbitrary and capricious, and not supported by substantial evidence ( cf., Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, n 3; Matter of Crystal Pond Homes, Inc. v. Prior, 305 A.D.2d 595, 596).
Furthermore, there is no merit to the Zoning Board's contention that its prior denials of two separate variance applications for the subject parcel bar the instant proceeding. The Zoning Board did not invoke the doctrine of res judicata as a ground for the denial of the petitioner's application. Judicial review of an administrative determination is limited to the grounds invoked by the agency in making its determination ( see Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758; Matter of Aronsky v. Board of Educ., Community School District No. 22 of the City of N.Y., 75 N.Y.2d 997, 1000). If the grounds relied upon by the agency are "`inadequate or improper,'" a reviewing court is "`powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'" ( Matter of Montauk Improvement v. Proccacino, 41 N.Y.2d 913, quoting Securities Exch. Commn. v. Chenery Corp., 332 U.S. 194, 196). Thus, the issue of res judicata is not properly before this court for review. In any event, the prior applications, one of which was actually granted conditionally, were either made by an applicant other than the petitioner or involved factually distinguishable proposals for constructing a garage on the subject parcel. Thus, the doctrine of res judicata is inapplicable to the petitioner's current application ( see Matter of Riina v. Baum, 300 A.D.2d 665, 666; Matter of Josato, Inc. v. Wright, 288 A.D.2d 384, 385; Matter of Peccoraro v. Humenik, 258 A.D.2d 465,466; Kalpin v. Accettella, 160 A.D.2d 909).
Since the petitioner did not appeal from the judgment we do not consider her request that the matter not be remitted to the Zoning Board.
SANTUCCI, J.P., SCHMIDT, ADAMS and CRANE, JJ., concur.