Opinion
INDEX NO: 1569/2019
05-15-2020
In the Matter of the Application of LEV NEYMOTIV and IRINA NEYMOTIN Petitioners, v. PAUL M. DECHANCE as Chairman, JAMES WISDOM as Vice-Chairman, HOWARD BERGSON, RONALD J. LINDSAY, RICK CHUNA, WAYNE ROGERS, and CHARLES LAZAROU, constituting the BOARD OF ZONING APPEALS - TOWN OF BROOKHAVEN, Respondents.
PETITIONER'S ATTORNEY: HOWARD RUBIN, P.C. 3000 HEMPSTEAD TURNPIKE SUITE 401 LEVITTOWN, NY 11756 516-228-3505 RESPONDENT'S ATTORNEY: ANNETTE EADERSTO, ESQ. BROOKHAVEN TOWN ATTORNEY By: DEIRDRE CICCIARO, A.T.A. 1 INDEPENDENCE HILL FARMINGVILLE, NEW YORK 11738 631-451-6500
PRESENT:
DECISION & ORDER
PETITIONER'S ATTORNEY:
HOWARD RUBIN, P.C.
3000 HEMPSTEAD TURNPIKE
SUITE 401
LEVITTOWN, NY 11756
516-228-3505 RESPONDENT'S ATTORNEY:
ANNETTE EADERSTO, ESQ.
BROOKHAVEN TOWN ATTORNEY
By: DEIRDRE CICCIARO, A.T.A.
1 INDEPENDENCE HILL
FARMINGVILLE, NEW YORK 11738
631-451-6500
This Article 78 proceeding seeks a judgment annulling and setting aside a determination of the Respondents, Town of Brookhaven Board of Zoning Appeals by naming the individual members as constituting the Board of Zoning Appeals("Zoning Board"), which denied Petitioners, Lev Neymotin and Irina Neymotin("Petitioners"), application seeking an area variance to obtain a permit for the conversion of the garage/basement as habitable space.
Petitioners reside at 30 Sylvia Lane, Plainview, New York and are the owners of real property, in a residential zone, located at the northeast corner of Hollow Road and Kemswick Drive (west side of Walnut Avenue and Chalmere Place), in the hamlet of Stony Brook, Town of Brookhaven, County of Suffolk, State of New York, further identified on the Suffolk County Tax Map as 0200-198.00-01.00006.000 (" Premises"). Petitioners have owned the Premises since 1981.
Petitioners submitted a building permit application to the Brookhaven Building Department requesting permission to maintain an existing garage and basement conversion as habitable space in the Premises.
On July 23, 2018, the Town of Brookhaven Building Department issued a denial of Petitioners' Building Department application, Denial — BZA000275. The basis of the denial was that the requested building permit was in violation of the Town of Brookhaven Code Chapter 85 Zoning, Article XXX IV Land Development Standards Section 85 - 883. Section 85-883 titled Nonconforming Uses states in subsection ( B) (1) Nonconforming buildings and structures in pertinent part:
"An existing nonconforming building or structure used as a one- or two-family dwelling with a certificate of occupancy or a certificate of existing use or its equivalent, located in a Residence District, whether located on a conforming lot or a nonconforming lot, may be structurally altered, restored, repaired or reconstructed, in whole or in part, except that the degree of nonconformity shall not be increased nor shall there be any increase in the floor area of the building or structure except as permitted elsewhere in this code."
The Petitioners in around September 2018 made an application to the Zoning Board for relief from the Building Department's denial. The Zoning Board issued a Notice of Proposed Application for Variance, Special Permit setting an initial hearing date for Petitioners' Application in October, 2018.
Public hearings were scheduled, adjourned and held from October through December 2018. At the public hearings Ralf Elsasser, as Petitioner's agent, represented the Petitioners and presented the case before the Zoning Board. The Petitioners did not testify and there is nothing in the record that demonstrates they attended any of the hearings. Nor is there any allegation in the Petition that the Petitioners were present at any of the Zoning Board hearings or denied the opportunity to speak or testify at any hearing.
A number of area residents testified and presented petitions of other neighboring residents. The testimony of the neighbors was that the Premises was not owner occupied, has been rented to Stony Brook University students for years; that the converted area was already being rented; that it was still being advertised on the Airbnb website; that the converted area had been rented for about two years; that there was insufficient parking at the Premises and multiple street entrances for vehicles to the Premises. The testimony of the residents did not attack that use but stated that the use of the converted area coupled with a new rental apartment or increased habitable space was the issue. The residents clearly testified as to the additional rental via Airbnb and that the Premises use as an Airbnb would change the nature and character of the area.
There was no evidence presented by the Petitioner as to the size in terms of lots and building size of neighboring properties to demonstrate that the proposed renovation in terms of size was in or out of character with the area.
There was no evidence in the initial hearing of the make-up in terms of race, ethnicity, sex or sexual orientation of the Stony Brook students that rented the Premises. One resident testified as far as he knew, the Premises had been rented to students for a period of around 17 years and the record is void of reference to the makeup of those tenants over the years.
There was no reference in the record of the Zoning Board hearing to any claim of any type of discriminatory animus.
An inspection report of Angus Graham, Building Inspector, dated December 11, 2018 at was placed into the record on December 12, 2018. The Zoning Board's Findings and Conclusions denied the Petitioners' application.
The Zoning Board's determination found that the Premises is situated on a substandard parcel measuring only 4,792 square feet in size and having frontage on four (4) different public roadways and that the Petitioners were seeking permission for the already existing basement and garage conversion for the purpose of increasing the square footage of rental space at the parcel in question. This additional habitable space results in an additional bedroom, recreation room, bathroom and wet bar to the rental property.
The Zoning Board further stated that Petitioners were issued violations regarding the conversion which at the time of the public hearing were pending. The inspection of Building Inspector Angus Graham on December 6, 2018, found the converted area was described as an "Artist Studio", bedroom and bathroom. The Zoning Board also found that area residents established the manner of rental use of that part of the Premises and introduced indicia of Petitioners' Airbnb rental advertisement as a newly converted basement and garage area. The advertisement stated: "This brand new apartment is located at the heart of Stony Brook Village: restaurants and shopping, Avalon Park & Preserve, The Duck Pond, Stony Brook University and Medical Center- all within walking distance. Enjoy Stony Brook's green environs, extremely quiet neighborhoods, and lots of things to visit and see!" Moreover, Petitioners' agent did not contest that the area for which the variance was requested was being advertised for rental via Airbnb. The Petition does not deny this either.
The Zoning Board in its decision stated that Petitioners' survey and floor plan shows 1,678 square feet of habitable space. The application would add an additional 460 square feet of habitable space to the Premises. The Petitioners' application would increase the habitable space of the Premises by almost 30%, on a substandard lot. As to Petitioners's request, in the absence of any instance of similar use in this residential community, the Zoning Board found the Petitioners' request to be substantial. The Zoning Board also found there was no evidence presented as to other properties in the area with living space in the basement/garage on a substandard lot, and that Petitioners failed to sustain their burden of proving conformity with the surrounding area. The Zoning Board also noted that Petitioners' application was outside the nature and character of the neighborhood. The allowance of such a substantial increase of living space would contribute to the over- utilization of this undersized lot, and increase the physical density of the lot. The Zoning Board found, if approved, it would have a negative effect on the physical and environmental conditions of the neighborhood and create a detriment to nearby properties.
The Zoning Board also found that any hardship was self-created since Petitioners modified the Premises without the benefit of a permit and/or contrary to a permit issued by the Building Department and contrary to Code requirements. The Zoning Board further stated that Petitioners could obtain the required rental permit and rent the Premises as a single family rental in the absence of the requested nearly 30% increase in habitable space.
Petitioners state that the Zoning Board's decision was made without hearing from the Petitioners. Petitioners were represented by an agent at the hearings. As stated above there is no appearance on the record by them and nothing in the record indicating the Petitioners were even present at hearings. There is also an allegation that it was unknown to Petitioners why a hearing scheduled for October 17, 2018 was adjourned. It was adjourned on the request of then Petitioners' agent because an inspection of the Premises was unable to occur because the Petitioners would be out of town.
Petitioners allege in the Petition that they were requesting the variance because Petitioner, Irma Neymotin, has a disability and has difficulty using stairs. Neither of the Petitioners testified as to a disability and there is no medical evidence in the record as to a disability. The only evidence in the record is the Petitioners' agent stating, as he was testifying that he just received an email that the Petitioners may move there and either the husband or wife had a disability and they may want to live on the lower level. There is no testimony or evidence other than the statements by the Petitioners agent regarding a disability. In addition, Petitioners' agent stated at the public hearing on October 3, 2018, that the reason for the variance was additional habitable space and to obtain the necessary rental permit and did not mention the Petitioners's future plans to move in or any disability as a reason they were requesting the variance. The first time that Petitioner alleged a disability and difficulty navigating stairs was in the Petition and then in the Reply Affidavit of the Petitioners' attorney. If true, Petitioners failed to set this out in the record by testimony or documents as to a disability, aging of a Petitioner, or a need to move from their present residence as a reason for the variance to the Zoning Board.
Petitioners submit a Reply affidavit. Pursuant to CPLR 7804 : ...."There shall be a reply to a counterclaim denominated as such and there shall be a reply to a new matter in the answer or where the accuracy of proceedings annexed to the answer is disputed. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify." Here, there are no counterclaims in the Answer, no new matters rasied in the Answer or any inaccuracy in the proceedings. There was no permission granted to submit a Reply. The Court could not consider the Reply and parts of the Petition especially since both raises issues not in the record or attempts to introduce new facts and issues but instead will addresses a number of those issues either factually or as a matter of law in making its determination.
Petitioners' position that a rental permit was not required in 1988 is not relevant since the Premises was being rented without the benefit of a rental permit as required by the present Brookhaven Town Code. Petitioners' submission of a rental permit in 2017 does not obviate the requirement under the Brookhaven Town Code that an owner must obtain a rental permit before the Premises was non-owner-occupied. In this case, the Premises was non-owner occupied before Petitioners' submission of an application for a rental permit. Moreover, the permit was never obtained.
Petitioners assert that the requested variance should be granted because the Building Inspector stated that there were no issues that he saw that would interfere with Petitioners being allowed to keep the previously made alterations. Due to the violations on the Premises, Building Inspector Graham conducted an inspection of the Premises to ascertain if there was or was not an apartment located in the basement/garage because an apartment in a non-owner-occupied home is prohibited under the Brookhaven Town Code.
This Court, in an Article 78 proceeding to review an administrative determination should not consider new facts or evidence outside the record that Petitioners and their attorney now assert. One such claim is discriminatory animus as set forth for the first time in a Reply Affidavit of Petitioners' attorney. Drizin v. Commissioner of D.H.C.R., 140 A.D.2d 605528 N.Y.S.2d 864 (2ndDept. 1988); Barretto v. Zoning Bd. of Appeals of Incorporated Village of Bayville, 123 A.D.2d 692507 N.Y.S.2d 57(2nd Dep. 1986)("Since our function here is to review the discretion of the zoning board of appeals based on the evidence before it, we have not considered subsequently proffered material which is dehors the record"); Regan v. Board of Educ. for Massena Cent. School Dist., 260 A.D.2d 846,688 N.Y.S.2d 736(3rd dept. 1999); Montalbano v. Silva, 204 A.D.2d 457, 611 N.Y.S.2d 63(2nd Dept. 1994).
There is no Counterclaim in the Answer. There is no new matter raised by the Answer and none referred to in the Reply Affidavit as a basis for a reply.
This Court's role in reviewing an administrative decision of the Zoning Board is not to decide whether the agency's determination was correct or to substitute its judgment for that of the Zoning Board, but to ascertain whether there was a rational basis for the determination. Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259 (1995); Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 626 N.Y.S.2d 1 (1995); Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 440 N.Y.S.2d 875 (1981). It is fundamental that when reviewing a determination that an administrative agency alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency, if the reasons relied on by the agency do not support the determination, the administrative order must be overturned. Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474 (1991); Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 N.Y.3d 360, 922 N.Y.S.2d 224 [2011]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 101 A.D.3d 1001, 956 N.Y.S.2d 183 (2nd Dept. 2012); Matter of Alfano v Zoning Bd. of Appeals of Vil. of Farmingdale, 74 A.D.3d 961, 902 N.Y.S.2d 662 (2nd Dept. 2010).
Pursuant to Town Law 267-b (3), a zoning board in considering a request for an area variance must engage in a balancing test, weighing the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the surrounding neighborhood or community. Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 781 N.Y.S.2d 234 (2004); Matter of Colin Realty, LLC v Town of Hempstead, 107 A.D.3d 708, 966 N.Y.S.2d 501 (2nd Dept. 2013); Matter of Daneri v Zoning Bd. of Appeals of Town of Southold, 98 A.D.3d 508, 949 N.Y.S.2d 180 (2d Dept), lv denied 20 N.Y.3d 852, 956 N.Y.S.2d 485 (2012)..More particularly Town Law 267-b (3) requires that a zoning board: "(b) In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance." See: Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra; Matter of Sasso v. Osgood, supra; Matter of Blandeburgo v. Zoning Bd. of Appeals of Town of Istip, 110 A.D.3d 876, 973 N.Y.S.2d 693 (2nd Dept 2013); Matter of Davydov v. Mammina, 97 A.D.3d 678, 948 N.Y.S.2d 380 (2nd Dept. 2012). Further, a zoning board is not required to justify its determinations with evidence as to each of the five statutory factors, as long as its determinations "balance the relevant considerations in a way that is rational". Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 A.D.3d 62, 73, 886 N.Y.S.2d 442(2ndDept.2009); Matter of Jacoby Real Prop., LLC v Malcarne, 96 AD3d 747, 946 NYS2d 190 (2nd Dept. 2012); Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 841 N.Y.S2d 650 (2nd Dept. 2007).
A local zoning board has broad discretion in considering applications for area variances. Matter of Pecoraro v Board of Appeals of Town of Hempstead, supra; Matter of Cowan v Kern, 41 N.Y.2d 591, 394 N.Y.S2d 579 (1977). A zoning Boards interpretation of the local zoning ordinances is entitled to great deference. Matter of Toys "R" Us v Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100 (1996); Matter of Gjerlow v Graap, 43 A.D.3d 1165, 842 N.Y.S2d 580 (2nd Dep.t 2007); Matter of Brancato v Zoning Bd. of Appeals of City of Yonkers, N.Y., 30 A.D.3d 515, 817 N.Y.S.2d 361 (2nd Dept. 2006); Matter of Ferraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 A.D.3d 710, 776 N.Y.S.2d 820 (2nd Dept. 2004).
The Zoning Board's determination denying Petitioners request for a variance for the additional habitable space in the basement/garage on a substandard lot deemed the requested variance to be substantial. The Zoning Board's determination to deny the relief included the factor that to do so would increase the living space of the dwelling by almost 30%. The Zoning Board found this would be a substantial deviation from the Code, and change the character of the neighborhood. The Zoning Board's decision was not arbitrary and capricious, and was supported by substantial evidence in the record.
As stated above, the Petitioners claim of discriminatory animus is unfounded and unsupported by the record. The Court finds it completely unworthy of belief based on the record. For the first time, in Petitioners' attorney's Reply Affidavit, the issue of discriminatory animus was raised. The Reply Affidavit refers to words used by local residents such as color of the area, character of the neighborhood and complexion of the area. This reference is made without looking at the context of those words within the entire testimony. The Reply Affidavit cherry picks and severely mischaracterizes the neighbor's testimony. A reading of the testimony demonstrates that the resident who mentioned the 'color' of the area gave a history of the Premises as being a rental; of the Petitioners never living there; that it has been rented without a permit; that the space for which the variance was requested was being rented through Airbnb; the lack of sufficient parking; devegetation issues; and that such use did not belong in the historic area of Stony Brook Village. Other residents talked about character and complexion in terms of the physical structures, habitable area in the area and that the basement/garage was being used and advertised as an Airbnb.
The character of the area is a factor under Town Law § 267-b that must be considered in reviewing a variance application. That the variance is opposed by interested and affected residents must be addressed by a zoning board, and an applicant. The residents did properly express their opposition here. Interestingly, the impact of the variance, if granted, upon the character of the area was not mentioned or addressed by the Petitioners.
As to the Petitioners' claim of discrimination against the ethnicity of the Petitioners, the record is void of any reference to their ethnic background. Moreover, Petitioners were not even present at the hearings, nor did they ever testify at the Zoning Board hearings. It bears reemphasis that the first time this allegation appears in this matter is in the Reply Affidavit of the Petitioners attorney. Matter of Blandeburgo v. Zoning Bd. of Appeals of Town of Islip, 110 A.D.3d 876, 973 N.Y.S.2d 693(2nd Dept. 2013); Matter of Davydov v. Mammina, 97 A.D.3d 678, 948 N.Y.S.2d 380(2nd Dept.2012); Matter of Qing Dong v. Mammina, 84 A.D.3d 820, 922 N.Y.S.2d 198 (2nd Dept. 2011). No documentary or testimonial evidence was submitted at the hearing to demonstrate that similar variances have been granted for properties in Petitioner's neighborhood. Matter of Kearney v. Village of Cold Spring Zoning Bd. of Appeals, 83 A.D.3d 711, 920 N.Y.S.2d 379 (2nd. Dept. 2011); Matter of JSB Enters., LLC v. Wright, 81 A.D.3d 955, 917 N.Y.S.2d 302 (2nd Dept. 2011); Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 A.D.3d 949, 910 N.Y.S.2d 123 (2d Dept. 2010); Matter of Gallo v. Rosell, 52 A.D.3d 514, 859 N.Y.S.2d 675 (2nd Dept. 2008).
This Court did not consider the exhibits annexed to the Petition which were not presented at the hearings. Petitioner's attempt to proffer information regarding other properties in the subject area for the first time in the Petition, and their failure to present information regarding square footage and lot size of other houses in the area at the hearing, precludes this Court's consideration of same. Similarly, the issues of discriminatory animus, posited for the first time in Petitioners' Reply Affidavit, though discussed and discounted above herein, were not part of the record and were not consequential to this Court's determination. L & M Bus Corp. v. New York City Dept. of Educ., 71A.D.3d 127, 892 N.Y.S.2d 60 (1st Dept. 2009); Matter of Acevedo v. New York State Div. of Hous. & Community Renewal, 67 A.D.3d 785, 889 N.Y.S.2d 78([2nd Dept. 2009); Matter of Mott v. New York State Div. of Hous. & Community Renewal, 287 A.D.2d 720, 732 N.Y.S.2d 347 (2d Dept 2001). This Court's review of administrative determinations is confined to the facts and record before the Zoning Board. Yarbough v. Franco, 95 N.Y.2d 342, 347, 717 N.Y.S.2d 79 (2000); Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 757, 455 N.Y.S.2d 814 (1st Dept. 1982), affd 58 NY2d 952, 460 NYS2d 534 (1983). Further, the Zoning Board reasonably determined, based on the evidence in the record, that an almost 30% increase in living space was not in keeping with the character of the neighborhood. Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra.
The Zoning Board also reasonably determined that the need for variance was a self-created hardship because Petitioners modified the Premises without the benefit of a permit and/or contrary to a permit issued by the Building Department. Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra; Matter of Davydov v Mammina,; Matter of Grace v Palermo, 182 A.D.2d 820, 582 N.Y.S2d 284 (2nd Dept. 1992). Moreover, the Zoning Board properly considered whether granting the requested variance for the additional habitable living space on a substandard lot, would establish a precedent for deviation from the Brookhaven Town Code to the detriment of the character of the neighborhood. Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra; Matter of Davydov v. Mammina, supra; Matter of Kearney v Village of Cold Spring Zoning Bd. of Appeals, supra; Matter of Gallo v. Rosell, supra. In this case, the fact that Petitioners may incur a financial hardship if the variance for additional habitable space is not granted is not a relevant basis for granting the requested variance. Matter of Grace v Palermo, supra.
As to the allegations that Petitioner was precluded by the Zoning Board from submitting evidence, there is no indication in the transcript of the public hearing that Petitioners were prevented in any way from presenting evidence in support of their application.
Accordingly, as there is substantial evidence in the record supporting the Zoning Board's denial of the requested variance and the finding that the Zoning Board's denial was rationally based on the balancing of the factors set forth in Town Law 267-b (3) and upon the Petitioners' failure to demonstrate that the Zoning Board's decision was irrational, illegal, an abuse of discretion, arbitrary or capricious, the Petition is denied and the proceeding is dismissed.
Submit judgement.
/s/_________
HON. JOHN J. LEO, .J.S.C Dated : May 15, 2020
Central Islip, New York .