Opinion
E2019011432
05-15-2020
Joseph GASPARINO and Susan Dressner Gasparino, Petitioners, v. TOWN OF BRIGHTON ZONING BOARD OF APPEALS, Edward Hall and Patricia Hall, Respondents.
Petitioners brought this Article 78 proceeding to set aside the determination made November 6, 2019 of the Brighton Zoning Board of Appeals ("ZBA") granting a variance to Edward F. Hall and his wife Patricia P. Hall ("the Halls") to construct an addition to their home.
The Petition is GRANTED. The determination of the of the Brighton Zoning Board of Appeals of November 6, 2019 is annulled and vacated.
While it is true that "Local zoning boards have broad discretion in considering applications for area variances," it is required that they consider the five factors set forth in Town Law § 267-B and Brighton Zoning Code § 219-2(B)(2)(b)in weighing the "benefit to the applicant" against the "detriment to the health, safety and welfare of the neighborhood or community by such grant" (Matter of Cohen v Town of Ramapo Bldg., Planning & Zoning Dept. , 150 AD3d 993, 993-94, 54 NYS3d 650 [2d Dept 2017] )
Here, the ZBA failed to make a finding with respect to factor five, whether the alleged difficulty was "self-created." By that omission alone it cannot be said that the decision of the ZBA had a rational basis or was consistent with law.
Clearly, the difficulty was self-created. The Halls purchased the property in August 2019 and made an application for the addition shortly thereafter. It is reasonable to infer that they planned on building the addition at the time of the purchase. They knew when they purchased the home that the use of the study as a bedroom would not allow Mr. Hall a place to do his reading for work, and that their son would need space in which to hang his hockey equipment. These were not issues that became apparent over time with the changing needs of the family.
While a finding that the difficulty was self-created does not preclude a finding in favor of the Halls, it should have been used to weigh against the benefit to the applicant against the detriment to the community, especially where the benefit barely stands on its own. The need for a third-car garage bay and a study is less than overwhelming.
Additionally, the ZBA lacked a rational basis in ignoring evidence of the detriment to the neighborhood. While the ZBA is well within its mission to make credibility findings, its statement that there was no "actual evidence," (whatever "actual" means) is not accurate, because it contradicts testimony by residents that the drainage will be impacted by the proposed addition, testimony that was no less authoritative than the Halls' unsubstantiated testimony that the drainage would not be impacted.
It also misstates the "major purpose of a setback," which it says is to "ensure adequate distances between structures and the residential neighborhood." A set back can and is often imposed in a variety of circumstances, such as preservation of aesthetic quality (see Grinspan v Adirondack Park Agency , 106 Misc 2d 501, 503, 434 NYS2d 90, 91-92 [Sup Ct 1980] ), and here, when the subdivision was formulated, the setback obviously was imposed along the green space bordering the private drive, not to create distance between the structure and other homes, but to preserve an area of open space adjacent to the green space. The distance from the property to other structures is irrelevant and to cite it as a controlling piece of evidence is not rational.
Equally irrelevant and inaccurate is the conclusion that with the addition, the size of the house and the addition of a third garage bay will cause the house to "appear in line with other houses in the neighborhood." This conclusion ignores, irrationally and unjustifiably, that those other houses are two story homes; the structure as proposed will be nearly 3500 square feet, all on one floor, taking up thereby (per testimony) an additional 38.3% of lot coverage. It will appear to those walking on Heatherstone Lane or the private drive as one very long and very extended ranch house in a neighborhood of mostly traditional colonials. And, while most of the homes on Heatherstone had three-car garages, they are, according to testimony and photographs received by the ZBA, to be "side-load" garages; the garage proposed by the applicants will be "front-load" and will be out of character with the other homes in the neighborhood.
As to the detriment to the community, the ZBA failed to consider — and thereby balance — the imposition of the proposed structure on the green space, as discussed above, and the character of the neighborhood.
The finding that the variance is not "substantial" also lacks a rational basis. The ZBA cites in support the distance from the structure to the private drive yet fails to consider the encroachment upon the green space (see above).
Accordingly, the Petition to vacate and annul the determination of the Brighton Zoning Board of Appeals with respect to the application of Edward F. Hall and Patricia P. Hall for a variance in order to construct an addition to their home at 90 Heatherstone Lane in the town of Brighton is GRANTED.
Counsel for the Petitioner will submit an Order consistent with this decision.