Opinion
000150/09.
Decided on October 2, 2009.
Mark E. Constantine, Esq., Attorney for Petitioner.
Marianne Stecich, Esq., Village of Irvington Attorney, Stecich Murphy Lammers, LLP, Attorneys for Respondent.
The Petitioner brings this proceeding by petition submitted pursuant to CPLR Article 78 seeking an order of this Court annulling, vacating and expunging the Respondent's December 4, 2008 determination which denied the Petitioner's application for an interpretation and instead granted the Petitioner a conditional variance for a site capacity of one and striking as unreasonable certain conditions imposed with the variance.
The Respondent contends that their action gave the Petitioner the relief she sought along with reasonable conditions and that their action complied with a previous order of this Court which held that the Petitioner was entitled to the relief she was seeking.
FACTUAL BACKGROUND
In 1976, Louis G. Morin acquired title to two lots on Hillside Terrace numbered 10 and 11. Subsequently, on April 20, 1980, he conveyed title to himself and his wife Doris Morin (Petitioner) as tenants by the entirety. Shortly, thereafter, on May 13, 1980, the Petitioner acquired title to two adjoining lots numbered 12 and 13 which she held individually. The Petitioner resided with her husband in a single family home which occupies Lots 10 and 11. At some point, a large patio was constructed which currently extends from the Petitioner's home many feet into lots 12 and 13. Up to this time, it is undisputed that lots 12 and 13 were held in single and separate ownership from lots 10 and 11. In addition, lots 10 and 11 were in a chain of title that was completely separate from the chain of title of lots 12 and 13 before being purchased by either the Petitioner or her husband.
In 1994, the Petitioner applied to the Irvington Planning Board for a site determination on lots 12 and 13 to determine whether the lots could be developed for construction of a proposed single family home. The Planning Board found that the site capacity was zero because the lots were individually and collectively non-conforming relying on Irvington Zoning Ordinance Section 47-35.4. The Petitioner filed, but never perfected, an appeal of the Board's decision. However, in 2006, the Petitioner applied to the Irvington Zoning Board for an interpretation of the Planning Board's decision, essentially seeking a review of that decision. The Zoning Board refused to consider the merits of the application on the grounds that the application was time-barred.
Later, in 2006, the Petitioner filed essentially the same application before the Irvington Planning Board seeking a site capacity determination. The Planning Board considered the application as well as documentation submitted by the Petitioner regarding site capacity and on the issue of merger. The Board had sought an opinion of the Village Attorney as to whether lots 12 and 13 had merged with Lots 10 and 11. The Village Attorney rendered an opinion that the lots had indeed merged. The Petitioner argued that no merger was possible as lots 12 and 13 had been held in single and separate ownership from lots 10 and 11 and submitted documentation in support of that position. In addition, two public hearings were held at which time members of the community expressed their concerns regarding the development of the two lots. Written documentation was reviewed by interested member of the community. At the conclusion of the hearings, the Board passed a resolution dated January 3, 2007 concluding that the four lots had merged resulting in a single merged lot and that the site capacity of lots 12 and 13, if considered by themselves would be zero in keeping with the Board's 1994 determination.
On February 5, 2007, the Petitioner filed an appeal of the Planning Board's decision with the Irvington Zoning Board of Appeals. The Zoning Board heard the application on March 27, 2007 and voted unanimously to deny the application holding that the four lots have merged and that the Board could not grant a variance for part of a lot that being lots 12 and 13.
The Petitioner commenced an Article 78 proceeding seeking to vacate the Respondent's April 9, 2007 determination which denied her application for an interpretation/variance. The primary issued to be resolved was whether a merger had occurred joining the two lots owned by the Petitioner alone with the two lots owned by the Petitioner and her husband jointly.
By Decision and Order dated August 5, 2008, this Court found that no merger had in fact occurred as to the disputed lots as they had been held in separate ownership since a date prior to the enactment of the zoning ordinance. The Petitioner was therefore entitled to the relief which she was seeking. The matter was remanded to the Village of Irvington Zoning Board of Appeals for further proceeding consistent with the Court's decision.
Upon resubmission, the Respondent repeated the application process and after two new public hearings, granted the Petitioner's application conditionally stating:
`The Board hereby grants a variance from the Planning Board's site capacity of `0' so as to find a site capacity of `One' for lots 12 and 13, on condition that:
1. Any house built on lots 12 and 13 shall meet the requirements, other than those for lot size and depth, of the Irvington Zoning Code for a 1F 10 District, including without limitation, those for setback, coverage, height and FAR, as set forth in §§ 224-11, 224-13, 224-8-C-3 and 224-36 of the Irvington Zoning Code, respectively; and
2. Applicant shall file with the Westchester County Clerk's office the aforesaid statement of condition so that said statement becomes a matter of record and runs with the land.
A failure to meet either of the above conditions shall render this variance null and void.'
Thereafter, the Petitioner commended the present action seeking to vacate the Respondent's determination on the grounds that the Respondent had not complied with this Court's previous order in that the Board granted a variance rather than an interpretation and that the Board had imposed unreasonable conditions upon the issuance of the variance.
LEGAL DISCUSSION
By Decision and Order dated August 5, 2009, this Court found that the Petitioner was entitled to a variance as a matter of right pursuant to Irvington Village Code § 224-7D(1) and that the Respondent's denial of her application was therefore unlawful. The matter was remanded for further proceedings consistent with this Court's decision.
On remand, the entire application was repeated and the Respondent granted the application for a variance with certain conditions. The Petitioner now contends that what she was really seeking was an interpretation rather than a variance. The distinction between an interpretation and a variance was never addressed in the prior proceedings as it was the Respondent's position that the Petitioner was entitled to no relief as the lots in question had merged with the two adjoining lots. Putting aside the distinction between a variance and an interpretation, the point of this Court's ruling was to grant the Petitioner the relief she was entitled to as a matter of right. The Appellate Division summed up the issue broadly in holding that once a party has established their entitlement to a variance as a matter of right, he or she is `entitled to the necessary variances to enable him to build on the lot.' [See Modular Homes Corp. v. Combs, 115 AD2d 527; see also Cange v. ZBA Town of Islip, et al., 146 AD2d 594]. It appears to the Court that the granting of a variance as issued by the Respondent accomplishes that end. The Court finds that in issuing the variance the Respondent acted in compliance with this Court's previous Decision and Order.
More troubling to the Court is the imposition of several conditions which the Respondent attached to the issuance of the variance. While it is well settled that a zoning board is authorized to impose conditions upon the granting of a variance when exercising its discretion (see Matter of Dexter v. Town of Gates, 36 NY2d 102), the issue is not so clear when the property owner is entitled to the variance as a matter of right, as is the case here. As the Respondent acknowledged in a related proceeding (Index No. 27816/08), `the Zoning Board of Appeals had no choice but to grant the variance.'
In addition, the Respondent included a sanction for failing to comply with the two conditions stating, `A failure to meet either of the above conditions shall render this variance null and void.' This provision would have the effect of allowing the Respondent to take away the variance which the Petitioner is entitled to as a matter of right, something this Court had found that the Respondent had no authority to do.
While this Court is dubious as to the Respondent's authority to impose any conditions, when issuing a variance `as a matter of right,' the conditions imposed by the Respondent in the present case are clearly unreasonable.
The Respondent contends that the first set of conditions was imposed to ensure that any subsequent purchaser would be on notice that any building erected on the lots must be in compliance with the requirements of the 1F-10 zoning district in which the lots are located. It is an obvious fact that any building erected on the lots must otherwise comply with local zoning laws. On one level, this condition appears unnecessary or redundant. However, it is also unreasonable as it attempts to place restrictions on a building plan which the board has never examined. In this case, no proposed building plan has been submitted in connection with the application. When a building plan is submitted, there may be an issue with regard to one or more zoning requirements which a future board might be willing to address. This provision attempts to place limits on the decision making ability of a subsequent board to even consider the matter.
In order for a condition imposed on a variance to be sustained, the condition must relate to use of the property involved or to a zoning issue. The reason for the condition proffered by the Respondent is not properly related to the use of the property or a valid zoning issue. However, well intentioned, the notice issue is outside the realm of the zoning board. As in all real estate matters, it is incumbent on the buyer to be apprised of such matters. The Court, therefore, strikes the first condition imposed as unreasonable and not sufficiently justified.
The second condition imposes a recording requirement on the variance. The expressed purpose is to make the variance a matter of record and make it run with the land. This condition strikes the Court as highly unusual. As a matter of law, the Court is doubtful as to whether recording the variance would have the legal effect of making it run with the land. In any event, this condition is found to be unreasonable and unrelated to any legitimate zoning board concern of the board.
Both conditions have the effect of binding and limiting the decision making process of a future board which will have to consider how the property is actually developed. The Respondent has conceded that the provision would limit both parties. As a general rule, actions which attempt to limit the ability of a future body should be nullified as a violation of public policy. [See generally Matter of Lake v. Binghamton Hous. Auth., 130 AD2d 913; Matter of Martin v. Hennessy, 147 AD2d 800 ].
The Court, therefore, upholds the variance issued by the Respondent but strikes as unreasonable and invalid the two conditions imposed and the penalty provision. [See Matter of St Onge, et al. v. Town of Colonie ZBA, 71 NY2d 507 ].
The foregoing constitutes the Decision, Order and Judgment of the Court.