Opinion
2005-2771.
Decided June 13, 2006.
GINLEY GOTTMAN, P.C., Attorneys for Petitioners, Saratoga Springs, New York.
ANTHONY J. IZZO, Assistant City Attorney, Attorney for Respondent, Saratoga Springs, New York.
In this proceeding under Article 78 of the CPLR, petitioners challenge the decision of respondent, Zoning Board of Appeals of the City of Saratoga Springs (hereinafter Zoning Board) denying their application for a use variance, which, if granted, would allow petitioners' contract vendees to convert 96 Ballston Avenue from a single-family residence to a law office.
In 1993, petitioners and a partner purchased for $15,000.00 at a foreclosure sale the subject property which, by all accounts, was a neglected 2,800 square feet single-family residence. After buying out their partner's one-half interest for $20,000.00, petitioners invested another $175,000.00 plus their labor over the next two years to completely renovate the structure to make it suitable for their home. During the construction phase, an existing strip mall then located across Ballston Avenue underwent an expansion consisting of a supermarket and large parking lot directly across from the residence. In 1996, petitioners began renting the property first to families and later, as traffic and safety issues made the residence less attractive to families with children, to college students and to military personnel temporarily stationed in the Saratoga area. In 2002, petitioners decided to sell the property. Between 2002 and 2005, they listed it with three realtors at prices varying from $259,000.00 to $289,000.00. According to petitioner and their realtors, the property was shown to 40 to 50 prospective purchasers. Only three purchase offers, all contingent on a zoning change to allow a commercial use, were made. The latest offer, from a law firm, is for $250,000.00. It is this offer that precipitated this proceeding before the Zoning Board.
According to plaintiffs, the property, at market value, was then worth $40,000.00.
The 2005 assessment was $262,000.00.
The City's building inspector's denial of petitioners' application for a use variance was appealed to the Zoning Board. On October 17, 2005, a public hearing was held. Petitioners offered their own testimony and that of their realtor, Daniel Gaba, photographs of the neighborhood and neighboring properties, a financial analysis detailing income and expenses of the property from 2000 to 2005, a sketch plan of the site, a petition signed by neighbors who did not object to the use change, and an opinion from an appraiser that the property's location rendered it unappealing to residential buyers. At the hearing, no appearance or evidence was offered in opposition. Petitioners' evidence disclosed that the Ballston Avenue corridor is an area with residential and commercial uses. Petitioner's property is bordered to the immediate south by a professional office (for which a use variance was granted); to the immediate east by a group residence for the developmentally challenged; to the north, one lot away, by a single-family residence housing a realtor's office; and to the west, on the opposite side of Ballston Avenue, by a strip mall housing numerous businesses ranging from a bank to a tavern to a free standing Price Chopper grocery store directly opposite petitioners' property. Petitioners' proof further established that their residence and their lot are considerably larger than most existing single-family residences and lots in the neighborhood.
During the October 24, 2005 meeting of the Zoning Board, a resolution proposing to grant the variance was made and seconded but voted down with five of the Zoning Board's seven members voting "no". The resolution's failure, constituting a denial of the appeal, prompted this proceeding wherein petitioners contend that the denial was unsupported by substantial evidence, arbitrary and capricious, and an abuse of discretion. Petitioners offer that they have proved the requisite elements to establish that the existing zoning classification causes them unnecessary hardship and are thus entitled to a use variance. In its answer, the Zoning Board contends that its denial was properly, lawfully, and rationally made and therefore not arbitrary and capricious and was supported by evidence in the record.
On December 19, 2005, after this proceeding was commenced, the Zoning Board adopted a resolution formally denying petitioners' application. Subsequently, petitioners and respondent Zoning Board stipulated that this subsequent resolution be "not part of the record, and that the Court shall not consider it in making its decision" and requested that the stipulation be "so ordered" and the court honored that joint request.
A zoning board must make appropriate factual findings upon which its decision is based to facilitate proper and reasoned judicial review of its decision, Matter of Syracuse Aggregate Corp. v Weise, 5 NY2d 278, 283 — 284 (1980), and if it does not, the court may remit the matter to "make findings that correlate the evidence in the record to the standards governing the issuance of a use variance and indicate what evidence it acted upon in reaching its determination". Matter of Androme Leather Corp. v City of Gloversville , 1 AD3d 654 , 655 (3rd Dept 2003), lv denied 1 NY3d 507 (2004). Yet, remand is not mandatory, and the merits of a proceeding may properly be reached provided the factual underpinnings for the decision are present elsewhere in the administrative record. Matter of Fisher v Makowitz, 166 AD2d 444 (2nd Dept 1990); Matter of Concerned Citizens Against Crossgates v Town of Guilderland Zoning Bd. of Appeals, 91 AD2d 763 (3rd Dept 1982). In this case, both petitioners and the Zoning Board advocate against remand and urge that the court search the record, namely the written minutes and the DVD recordings of the two meetings of the Zoning Board. Since parties are free to chart their own course in litigation, unless public policy is affronted, CPLR 2104, Mitchell v New York Hosp., 61 NY2d 208, 214 (1984); Rich v Rich, 282 AD2d 952 (3rd Dept 2001), including "fashion[ing] the basis upon which a particular controversy will be resolved, Cullen v Naples, 31 NY2d 818, 820 (1972), and even though the factual underpinnings for the Zoning Board's decision are not included within its formal denial resolution, but are disclosed elsewhere in the record, the merits may be reached.
Now the substance of the challenge. "Zoning boards relieve the pressures created by imperfect land use controls and help interpret variance ordinances as safety valve[s]' for the zoning system, which enables the board to do substantial justice between the owner who wishes to improve [or to change the use of] his property and the owners of nearby property that will be affected by the building to be erected' or improved [or by the change of use]." Matter of Center Square Assn. v City of Albany Bd. of Zoning Appeals , 19 AD3d 968 , 970 (3rd Dept 2005); quoting in part Matter of Cobb v Board of Appeals of City of Buffalo, 128 Misc 67, (Sup Ct, Erie County, 1926). "Zoning boards are afforded considerable discretion and their determinations are generally not disturbed if they have a rational basis and are supported by substantial evidence." Matter of Androme Leather Corp. v City of Gloversville, supra, at 656. General City Law § 81-b (3) (b) establishes the criteria which a city zoning board must apply to use variance applications. An applicant for a use variance has the burden to show that the zoning ordinance's restrictions are causing unnecessary hardship by establishing four elements: (1) that the property cannot yield a reasonable return when used for a permitted purpose; (2) that the hardship results from unique characteristics of the property; (3) that the proposed use will not alter the essential nature of the neighborhood; and (4) that the hardship was not self created. Matter of Diana v City of Amsterdam Zoning Bd. of Appeals, 243 AD2d 939 (3rd Dept 1997).
This extensive and well-developed record demonstrates that petitioners are entitled to a use variance for a law office. The Zoning Board's denial simply was not based upon a reasoned consideration of or supported by the evidence in the record.
The first element, that petitioners have been unable to generate a reasonable return on their property as a single-family rental unit, was convincingly proved by "dollars and cents" evidence. Petitioners adequately demonstrated that a consistent or long term rental of this property as a residence at a rent sufficient to meet all expenses and produce a reasonable profit was made impossible by the heavy traffic upon this main gateway street into the City of Saratoga Springs and by the lights and noise and activity generated by a 24 hour, supermarket directly across the street. Thus petitioners, by necessity, were forced to rent to short term tenants by virtue of the location's drawbacks. Petitioners' economic proof conclusively established that the rentals were not yielding a reasonable return on petitioners' investment. The Zoning Board's dismissive observation that petitioners should not have made an investment of that magnitude supports a conclusion that it closed its eyes to the detailed financial analysis before it.
Moreover, there was overwhelming proof that petitioners made honest and extended efforts to sell the property as a single-family residence at a reasonable price, but those efforts, over three years, attracted not one buyer interested in the property for residential use. According to the petitioners and realtor, Gaba, who had handled the listing for two years, no one to whom the property was shown was interested in it as a single-family residence, and all the showings were to persons interested in it as an office or other business. The property was listed for sale at a price reasonably close to its assessed valuation and did not sell during a time when properties throughout the City were selling rapidly and significantly above their assessed values. The Zoning Board's other dismissive observation that petitioners could always lower their asking price supports a conclusion that it did not give reasoned consideration to the element of reasonable return and to the petitioners' evidence on that element.
The second element, a hardship unique to this property, rather than of general application to the neighborhood, was also clearly proven. Here, petitioners have a large structure on a large double lot with road frontage of 100 feet, dimensions larger than those of most of the smaller residential family units on Ballston Avenue. Once again, this property is directly bordered on two sides, the south and east, by commercial/business uses and is opposite a strip mall and a Price Chopper supermarket.
The third element, neighborhood impact, was also demonstrated. The neighborhood will not be adversely affected or its essential nature changed or altered by a law office. The lot will adequately and safely accommodate all parking needs of the proposed law office use. This property is nearly surrounded by commercial enterprises. Even the owner of the residential property located immediately adjacent to the north does not oppose the application. This section of Ballston Avenue is permeated with commercial and business uses more intense than a law office. The record evidence establishes that a use variance was granted several years ago to allow a similar professional office use on the property immediately to the south of this property. Petitioners ought not take the brunt of the Zoning Board's desire, expressed in this record, that the City Council consider rezoning the Ballston Avenue corridor to allow business and commercial uses as a matter of right.
The last element, self-created hardship, was also satisfied. On the one hand, when petitioners acquired the property, they knew that it was zoned for residential use, and indeed, have abided by that limitation for over 10 years. On the other, since their acquisition, the commercial uses in the neighborhood have intensified, particularly directly across the street. These post-acquisition changes have further eroded the attractiveness or suitability of this property for residential use. The character of the neighborhood, although mixed to some degree when petitioners purchased the property, has become more commercial as the result of development by others, not petitioners. None of these post acquisition developments was self-imposed.
In sum, the record, when viewed in total, demonstrates undue hardship warranting a use variance. The petition is granted and the denial of petitioners' application is vacated. Since the record fails to demonstrate any reason why the application should be remanded to the Zoning Board for further proceedings, petitioners are entitled to judgment granting their application for a use variance to permit a law office at 96 Ballston Avenue.
This memorandum shall constitute the decision, order and judgment of the court. All papers, including this decision, order and judgment, are being returned to petitioners' counsel. The signing of this decision, order and judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
So Ordered and Adjudged.