Opinion
No. K1–2016–528.
08-11-2016
In the Matter of Paul LEONE, Ann Servos and Timothy Mills, Petitioners v. CITY OF JAMESTOWN ZONING BOARD OF APPEALS, Jamestown Community College, and Lynn Development, Inc., Respondents.
Neil M. Robinson, Esq., of Counsel, Robinson Law Office, Attorney for Petitioner. Marilyn Fiore–Lehman, Esq., Corporation Counsel, City of Jamestown Corporation Counsel, Attorneys for City of Jamestown Board of Appeals. Steven M. Abdella, of Counsel, Price, Flowers, Malin & Westerberg, Attorneys for Jamestown Community College. Kristin M. Lee Yaw, of Counsel, Hall & Lee Yaw, Attorneys for Lynn Development, Inc.
Neil M. Robinson, Esq., of Counsel, Robinson Law Office, Attorney for Petitioner.
Marilyn Fiore–Lehman, Esq., Corporation Counsel, City of Jamestown Corporation Counsel, Attorneys for City of Jamestown Board of Appeals.
Steven M. Abdella, of Counsel, Price, Flowers, Malin & Westerberg, Attorneys for Jamestown Community College.
Kristin M. Lee Yaw, of Counsel, Hall & Lee Yaw, Attorneys for Lynn Development, Inc.
FRANK A. SEDITA III, J.
The Principal question raised by this Article 78 Petition is whether the City of Jamestown Zoning Board of Appeals (ZBA) lawfully issued a use variance for the Sheldon House.
In 1977, Julia Sheldon Livengold donated her home—a 9400 square foot mansion with thirty-five parking spaces at 7 Falconer St. in the City of Jamestown—to Jamestown Community College (JCC). Commonly known as the Sheldon House, the mansion hosted a myriad of college, cultural and community events for the next four decades.
JCC has sustained a cumulative loss of $500,000 in the operation of the Sheldon House over the past seven years and faces another $150,000 to $200,000 in near-term maintenance costs. The Sheldon House is therefore listed for sale, subject to the approval of five separate governing boards: the JCC Board of Trustees; the Jamestown City Council; the Chautauqua County Legislature; the Cattaraugus County Legislature; and, the State University of New York Board of Trustees.
JCC received two offers to purchase the Sheldon House in December 2015.
The first, from John Lampard, is for $200,000, subject to the issuance of a mortgage and contingent upon a successful home inspection. John Lampard, who wishes to return the Sheldon House to a single family residence, is the son of Marijika Lampard, president of the Lakeview Avenue Community Action Project (LACAP). The petitioners in this matter are also LACAP members.
The second, from respondent Lynn Development, Inc. (Lynn), is for $240,000 but without an inspection contingency; i.e. an "as is" offer. Lynn wishes to continue using the Sheldon House for community and philanthropic purposes but also wishes to house their headquarters on the second floor.
The JCC Board of Trustees met on January 7, 2016 and designated the Lynn offer as the preferred one. The five governing boards made clear that a state environmental quality review (SEQR) and the issuance of a use variance were necessary before they would approve of the sale.
On March 31, 2016, JCC and Lynn applied to the ZBA for a use variance. The application addressed the four prongs of the hardship test, as set forth in § 311–1106 of the Jamestown City Zoning Ordinance, necessary for the issuance of a use variance. Specifically, the applicants set forth why the property could no longer yield a reasonable return; why the hardship resulted from the unique characteristics of the property; why the proposed use would not alter the essential character of the neighborhood; and, why the hardship was not self-created. The application also included a completed Environmental Assessment Form (EAF).
The ZBA, as the SEQR lead agency, completed their own EAF on April 26, 2016. At a regular meeting of the ZBA on the afternoon of May 4, 2016, the ZBA determined that the sale of the Sheldon House to Lynn would "not create a substantial environmental impact on the adjoining properties." The ZBA then held a public hearing regarding whether to issue a use variance. In addition to written submissions, the ZBA heard from sixteen citizens, some of whom were vigorously questioned.
Stating that, "my partners' plans are to leave the downstairs basically as it is so it can be used for the same kind of activities that's it's been used for," Gary Lynn (Lynn's principal partner) detailed the negligible impact—upon both the structure itself and the surrounding neighborhood—of using the second floor as office space. Lynn also emphasized: "As to the character of the building, we want it to stay the same as it is."
All of the parties to the instant litigation, and most of their attorneys, were heard by the ZBA. Neil Robinson, Esq. (the petitioners' attorney) and Steven Abdella, Esq. (the attorney for respondent JCC) addressed the four prongs of the hardship test. When compared, counsels' testimony before the ZBA and arguments in the instant pleadings, are virtually identical in subject matter and in content.
The ZBA voted in favor of granting the use variance by a five-to-one margin and sent a letter to Mr. Abdella, so advising, on May 12, 2016. Petitioners instituted this lawsuit, by way of a CPLR Article 78 Petition, on May 31, 2016.
Petitioners allege the ZBA acted in an arbitrary, capricious and unlawful manner and therefore their determinations should be annulled and vacated. Petitioners' principal contention is that the statutory criterion for the issuance of a use variance—the four-pronged hardship test, as set forth in § 311–1106 of the Jamestown City Zoning Ordinance—was not satisfied and, what is more, that the ZBA failed to make findings of fact and conclusions of law. Petitioners' also contend that the ZBA failed to comply with the State Environmental Quality Review Act (SEQRA).
The responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions that affect their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies and their determinations are entitled to great deference. Whether to grant an application for a variance is thus committed to the broad discretion of the local zoning board and judicial review of such decisions is limited (see, Pecoraro v. Zoning Board of Appeals of Town of Hemstead, 2 NY3d 608, 613 ; Concetta Irrevocable Family Trust v. Town of Perinton, 6 AD3d 1091 ).
Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion. The board's determination should be sustained so long as it has a rational basis and is supported by substantial evidence. Formal findings of fact and conclusions of law are not required to be made when the record as a whole addresses the applicable considerations or otherwise provides a foundation for concluding that there was a rational basis for the board's determination. A reviewing court may not substitute its judgment for that of a local zoning board even if there is substantial evidence supporting a contrary determination (see, People, Inc. v. City of Tonawanda, 126 AD3d 1334 ; Dietrich v. Planning Board of West Seneca, 118 AD3d 1419 ).
Although the ZBA did not make formal findings of fact or conclusions of law, it is evident from the administrative record—which includes the zoning variance application and the testimony of the parties—that their determination was neither arbitrary nor capricious. The record reveals that JCC and Lynn presented substantial evidence, especially regarding the four-pronged hardship test, providing the ZBA with a rational basis upon which to issue a variance. Because such a rational basis exists, the court may not substitute its judgment for that of the ZBA even if there is substantial evidence supporting a contrary determination.
Regarding SEQRA, it is similarly not the court's role to conduct a de novo evaluation of the information before the ZBA or choose among alternatives. The limited issue for judicial review is whether the decision makers identified the relevant areas of environmental concern, took a "hard look" at them, and made a reasoned elaboration of the basis for their determination. In doing so, the court must employ reasonableness and common sense, tailoring the intensity of the required hard look to the complexity of the environmental problems actually existing. Every conceivable environmental need not be addressed in order to meet an agency's responsibility under SEQRA and the degree of detail and the reasonableness of the agency's action will depend largely on the circumstances surrounding the action (see, Akpan v. Koch, 75 N.Y.2d 561, 570 ; Chinese Staff Workers v. Burden, 88 AD3d 425, 429 ; aff'd. 19 NY3d 922 ; Scott v. City of Buffalo, 20 Misc.3d 1135 ; aff'd. 67 AD3d 1393 ).
Petitioners fault the ZBA for failing to "analyze" and "discuss" the EAF submitted by JCC and Lynn. Tellingly, however, petitioners fail to articulate how Lynn's intended use of the Sheldon house would have an actual environmental impact. Little, if any, evidence (in contrast to the sentiments of those opposed to the purchase) suggests that conversion of the second floor of the Sheldon House to office space would have a deleterious effect upon the environment or the surrounding neighborhood. Reasonableness and common sense suggest there is no genuine environmental concern in this case and that it would have been a bootless errand to have taken an exacting "hard look" at something that was not there. Under such circumstances, the SEQRA lead agency would not be expected to perform the type of extensive environmental review typically reserved for a corporation intent on erecting a communications tower or a drilling derrick.
In any event, the ZBA conducted a public hearing and completed an EAF in which it reasonably concluded that the proposed action would not result in any significant adverse environmental impact. Petitioner's contention that the ZBA violated SEQRA is therefore without merit (see, Surat v. Town of Preble Zoning Board of Appeals, 93 AD3d 921 ).
In sum, the ZBA did not act in an arbitrary, capricious or unlawful manner when it issued the zoning variance. Nor did it violate the provisions of SEQRA. Accordingly, the relief requested in the Petition is, in all respects, denied and the Petition is dismissed.
The foregoing shall constitute the order of this court.