Opinion
18717/2005.
Decided March 17, 2006.
Law Offices of Shlimbaum and Shlimbaum, Islip, New York, Petitioner's Attorney.
Vincent J. Messina, Jr., Islip Town Attorney, By: Janessa M. Trotto, Esq., Islip, New York, Respondents' Attorney.
Petitioners commenced this Article 78 proceeding for a judgment reviewing and vacating those portions of respondents' July 12, 2005 decision which deny petitioners' application for certain variances and directing respondents to grant those portions of petitioners' application.
The record reflects that petitioners' property is located in the Residence B zoning district and is improved with a one-family dwelling and detached garage with a second-story apartment. Both are legal nonconforming uses for which a certificate of compliance has been issued. Petitioners applied to the Town of Islip Zoning Board of Appeals (the "Board") for permission to construct an addition to the one-family dwelling. The proposed construction consists of a one-story addition expanding the nonconforming use by less than 25% and having a front-yard setback of 16.6 feet instead of the required 25 feet (the house has a front-yard setback of 8.4 feet, but the proposed one-story addition is not flush with the front of the house but is set back 16.6 feet from the front property line); and a two-story addition and a second-story addition in conforming locations resulting in a floor area ratio ("FAR") of 36.49% instead of the permitted 25%.
Petitioners have abandoned their request for a front-yard variance to construct a roof over an existing porch on the front of the house.
A public hearing was held on June 21, 2005, at which petitioner Scott Fagerland and his architect, Robert O'Shea, appeared. The only substantive issue addressed at the meeting was whether the front-setback request should reflect the setback to the proposed one-story addition (16.6 feet) or to the front of the existing dwelling (8.4 feet). The record reflects that the Board amended the call of the meeting to "correct" the front-yard setback to 8.4 feet. Although the transcript of the hearing reflects that the Board appeared to be favorably disposed towards petitioners' application, the remainder of the discussion focused on whether the Board's granting petitioners' application for an expansion of less than 25% on the dwelling would jeopardize the nonconforming status of the detached garage with apartment. The hearing was adjourned to an open date to permit the Board to obtain an opinion from the Town Attorney on this issue. Petitioner's attempt to address the issue of the requested FAR of 36% was rebuffed, and petitioner was advised that he would be notified of the Town Attorney's response, and that "If there is a reason to come back, we'll call you back." On July 12, 2005, without having notified petitioners of the Town Attorney's response, and without any further public proceedings, the Board issued a determination denying the application.
"We can then make a decision, if the Town Attorney says it's permissible. I don't think anyone on the Board has any problem with it." Return, p. 12.
The Board, although agreeing that "an applicant can expand a nonconforming use by 25% or less," found that "building a new structure 16.6 feet from the street . . . is not in keeping with the nature and character of the area," and that it is a "substantial relaxation." The Board further noted that it "has never granted a floor area ratio of 36.4%," that "the floor area ratio of 36.49% is very substantial" and "[i]t would create a precedent with which the Board would not want to try to live with . . . "[sic]. The Board found that "overall in the expansion of this older building with two structures on the property, with that much square footage of house . . . is a substantial violation of the Code [and] does not meet the character of the area. The Board further found that "[i]t totally would be a self-created hardship since the applicants now have two nonconforming dwellings on this one parcel of land that are already close enough to the street that a larger more imposing structure, that close to the street, would certainly have a much greater affect [sic] on anyone driving down the road and certainly would affect property values." The Board concluded that "[i]n weighing the equities, there is not enough balancing that would justify the applicants doing what they wish to do."
The Board's determination cannot be sustained.
The Court notes in the first instance that petitioners' application was unopposed. Moreover, the record is utterly devoid of any evidence that petitioners' proposed construction is not in keeping with the nature and character of the area. There is no evidence that the proposed construction would have any impact on persons driving down the road, or that it would have any effect at all on property values. Even if, as concluded by the Board, construction of the proposed addition 16.6 feet from the street is "an extremely substantial relaxation" from the zoning requirements, there is no evidence that it will create a "larger more imposing structure" that will "exacerbate a bad situation." Although the Board stated that it had never approved a FAR of 36%, the statement was unsupported, and petitioner was effectively prevented from offering any evidence on this issue. In sum, the determination does not demonstrate that the Board considered and applied the statutory factors required by Town Law § 267-b in reviewing petitioners' application. In light of the absence of evidence that the benefit to petitioners of the variances sought are outweighed by a detriment to the health, safety and welfare of the neighborhood, and there being no proof that an undesirable change will be produced in the character of the neighborhood or that a detriment to nearby properties will be created by granting the variance applications, or that the proposed variances will have an adverse effect or impact on the physical or environmental conditions in the neighborhood, and the Board having made no finding whether the benefit sought by petitioners can be achieved by some other method, the Board should have granted petitioners' variance application, and its failure to do so was an abuse of discretion, arbitrary and capricious, and not supported by substantial evidence. Lessings, Inc. v. Scheyer, 16 AD3d 418, 790 NYS2d 545 (2nd Dept. 2005); Henthorne v. Molloy, 270 AD2d 420, 704 NYS2d 636 (2nd Dept. 2000).
In light of the foregoing, the petition is granted, the determination is vacated and annulled, and the Zoning Board of Appeals is directed to grant the requested relief.