Opinion
13022/08.
January 23, 2009.
The following papers having been read on the motion (numbered 1-5):
Notice of Petition 1 Notice of Cross Motion to Dismiss 2 Verified Petition 3 Memorandum of Law 4 Reply Affidavit 5
...................................... ....................... ....................................... ....................................... .........................................Motion (seq. No. 1) by the attorneys for the petitioner for an order annulling and reversing the Notice of Decision ("the "Decision") made by the respondent Zoning Board of Appeals of the Incorporated Village of East Hills (ZBA) on June 19, 2008, denying the petitioner's application for area variances to construct an in-ground swimming pool at the premises known as 6 Peacock Drive, East Hills, New York (the "Premises"), and directing the respondent approve the petitioner's application for area variances to permit the construction of an in-ground swimming pool located in the side yard of the premises is denied; and cross motion (seq. No. 2) by the attorneys for the respondent for an order dismissing with prejudice the verified petition is granted.
Petitioner is the owner of the subject premises known as 6 Peacock Drive, East Hills, New York. The premises is located in the R-1 Zoning District, as set forth in the Village of East Hills Zoning Code (the "Village Code"), which provides for residential parcels with a minimum of 15,000 square feet of lot area. Adjoining the premises to the south and east are other residential lots also located in the R-1 Zoning District. The premises is an irregular shaped corner lot located on the southeast corner of Peacock Drive and Eagle Lane. For zoning purposes, under the Village code, the premises has two front yards. The side yard is located at the southerly side of the dwelling opposite Eagle Lane, and the rear yard is located on the easterly side of the dwelling opposite Peacock Drive. The front yards along Peacock Drive and Eagle Lane have the following dimensions: (i) the front yard along Peacock Drive has a length of 148.96 feet; (ii) the curve at the corner of Peacock Drive and Eagle Lane has a length of 44.15 feet and a radius of 25.00 feet; and (iii) the front yard along Eagle Lane has a length of 75.50 feet. The rear yard at the easterly side of the premises has a length of 128.59 feet, and the side yard at the southerly side of the premises has a depth of 101.58 feet. The premises has approximately 16,091 square feet in total lot area, over 1,000 square feet larger than the permitted area in the R-1 Zoning District. The premises is improved with a one and two story frame dwelling occupied as a single family residence by petitioner and his family. There is a garage and asphalt driveway on the northerly side of the dwelling along Eagle Lane, and a raised wood deck at the rear of the dwelling. The main entrance to the premises fronts on Peacock Drive, but the driveway and garage used for ingress and egress to the dwelling fronts on Eagle Lane. Due to the topography, the premises slopes upward to a significant grade from both Peacock Drive and Eagle Lane. The topography creates a situation where the dwelling sits at the top of the slope. The petitioner contends the most level portion of the premises is located on the southerly side of the dwelling.
On or about November 29, 2007, petitioner submitted a building permit application to the Village of East Hills Building Department. The application requested permission to construct a 16 by 32 foot in-ground swimming pool located in the southerly side yard of the premises. After review by the Village's Building Department, a denial letter, dated December 13, 2007, was issued indicating that the proposed pool required a special exception permit and four (4) area variances from the Board.
The Village Code requires that all swimming pools, no matter the location, receive a special exception permit. According to the denial letter, petitioner's application to install an in-ground swimming pool was contrary to the following provisions of the Village Code:
(i) Pursuant to the Village of East Hills Zoning Code Section 214-142(F), a pool is only permitted in the rear yard. A variance would be required for a side yard pool;
(ii) Pursuant to the Village of East Hills Zoning Code Section 214-14(A), the maximum height for the fence on a lot line is four feet, the proposed fence is five feet, a variance is required;
(iii) Pursuant to the Village of East Hills zoning Code Section 214-143 (2), required setback to lot line for the pool is 20 feet. The proposed setback is 15 feet, a five foot variance is required;
(iv) Pursuant to the Village of East Hills Zoning Code Section 214-143(1), location of pool equipment must be adjacent to the house or 75 feet from all other residents, a variance is required.
Petitioner filed an application to the Board, dated January 23, 2008. The application requested the relief cited in the denial letter. Petitioner also submitted a Plot and Landscape Plan to the Board, dated August 17, 2008, last revised January 29, 2008, and redated August 17, 2008 ("Plan and Landscape Plan') supporting his claim that the proposed in-ground swimming pool and surrounding area will be substantially landscaped in such a manner as to screen all neighboring properties from the proposed pool, and to be aesthetically pleasing to the surrounding neighborhood.
Petitioner's application was the subject of a public hearing before the Board on April 1, 2008. At the public hearing, the petitioner asserted that the benefit to the petitioner in granting the special exception permit and area variances outweighed any potential detriment to the health, safety and welfare of the neighborhood or community. In support of the motion to set aside the decision the petitioner contends the following:
(i) An undesirable change would not be produced in the character of the neighborhood since the premises are surrounded entirely by other residential dwellings and residential accessory structures, and there was no evidence showing that the proposed pool would adversely impact those dwellings and uses, (ii) The benefit sought by Petitioner cannot be achieved by some other means since an in-ground swimming pool cannot be located anywhere else on the premises other than the southerly side yard due to the configuration of the premises as a corner lot, the unique topography of the premises, and the location of the dwelling on the premises. (iii) The requested area variances were not substantial in that: (a) the proposed in-ground swimming pool could only be feasibly located in the side yard; (b) the proposed in-ground swimming pool is of a reasonable size that is appropriate for the premises; (c) the proposed fence would only be a foot taller than allowed, and part of the fence is already existing; (d) the setback requirement for the pool would be varied five feet, which would be mitigated by extensive landscaping and screening, and by the fact that the in-ground swimming pool at the premises would be at a substantially higher elevation than the adjoining property to the south, so that the adjacent owner would not see or be disturbed by the pool; (e) the petitioner was willing to revise the plan to put the pool equipment next to the garage so as to mitigate any potential negative impacts on neighboring dwellings. There was no evidence or testimony before the Board showing any adverse impacts on the physical or environmental conditions of the neighborhood; (v) Although the statute permits only back yard pools, the petitioner's hardship was not self-created, but results solely from the unique characteristics of the premises.
Further, petitioner asserts that when any potential detriment was discussed or mentioned by the Board, the petitioner proposed various mitigation measures. For example, with respect to the southerly neighbor, when the Board inquired as to any impact on that dwelling, petitioner presented extensive landscaping and screening, and stated that, based on the topography of the premises, the southerly neighbor would never see the pool or the associated patio.
On June 19, 2008, the Board's Decision was filed with the Village Clerk. The Board denied the application finding that the proposed in-ground pool at the side of the house would have an adverse impact on the neighborhood.
Local zoning boards have broad discretion in considering applications for variances. Judicial review is limited to ascertaining whether the action taken by the board was illegal, arbitrary or an abuse of discretion. See CPLR 7803(3); Enisman v Town of Poughkeepsie Zoning Board of Appeals, 50 AD3d 793; Matter of Halperin v City of New Rochelle, 24 AD3d 768. The issue before this Court is whether the determination of the zoning board was affected by an error of law, or has a rational basis and was not arbitrary and capricious. Matter of Sasso v Osgood, 86 NY2d 374.
In the decision, the ZBA stated:
"However, there was no factual showing as to how a reasonably sized pool could not be accommodated in the applicant's rear yard. From the Board's review of the applicant's drawings, it appears that there are feasible alternatives to the two variances sought, each substantial, to accommodate a swimming pool."
In the within action, the ZBA members had knowledge of their community and recognized that in the Incorporated Village of East Hills many properties have sloping land. The ZBA members did not accept the petitioner's unsubstantiated assertions that he could not put a reasonably sized swimming pool in his backyard because of its configuration or slope and the court had the opportunity to see the backyard which appeared flat and otherwise consistent with respondents findings presented as petitioner's Exhibit 2 in the reply. The ZBA appeared to take a conciliatory approach in dealing with the petitioner by asking for proposals by the petitioner to put the pool in the rear yard. Although petitioner contends he "proposed various mitigation measures" he refused to consider the Board's suggestion that there are feasible alternatives to the side yard pool. Compare Rosasco v Village of Head of the Harbor, 52 AD3d 611, cited by petitioner where the court annulled the determination of the ZBA denying the petitioner's application for a side yard variance to construct a pool. Unlike in Rosasco, the petitioner herein failed to even attempt to support his self-serving conclusion that it was not feasible to construct the pool in the rear yard. The ZBA balanced the potential benefit to the petitioner against the detriment to the health, safety and welfare of the Village in regard to the variance request for a side yard pool and a twenty-five percent encroachment into a side yard setback. After performing this analysis and considering the five factors set forth in Village Law § 7-712-b(3)(b) the ZBA denied the variance requests for a side yard pool and a side yard encroachment. The record indicates that the ZBA's determination to deny the variance for a side yard pool and side yard variance has a rational basis and was not arbitrary, capricious or an abuse of discretion.
This constitutes the Order of the Court.