Caspian Realty, Inc. v. Zoning Board of AppealsCaspian Realty, Inc. v. Zoning Board of Appeals
Timothy W. Lewis, Town Attorney, Greenburgh (Edward M. Lieberman of counsel), for appellant.
Keane & Beane, P.C., White Plains (Judson K. Siebert, Joel H. Sachs and Jennifer L. Reinke of counsel), for respondent.
OPINION OF THE COURT
Dillon, J.
The issue on this appeal is whether a municipal zoning board may deny requested area variances on the basis of common-law principles that are independent of the statutory factors enumerated under
I. Relevant Facts
In 2000 the petitioner, Caspian Realty, Inc. (hereinafter Caspian),1 applied to the Planning Board of the Town of Greenburgh (hereinafter the Planning Board) for site plan approval of a proposed furniture store to be located at 155 North Central
During the Planning Board‘s review of the application, Caspian was specifically asked how it intended to use the cellar of the building. In response, Caspian advised that the cellar would be used for storage and mechanicals only. The use of the cellar for mere storage and mechanicals was significant, as any use of the cellar for retail purposes would cause the premises to exceed the maximum permissible .135 FAR. Moreover, 1980 Town of Greenburgh Zoning Ordinance § 285-29.1 (C) (5) requires one parking space for each 200 square feet of retail space. While the site plan provided for 33 parking spaces, which was two in excess of the minimum, a retail use of the cellar would necessitate a significant parking variance.
Floor plans and revised plans submitted in November 2002 and April 2003, respectively, located the “retail area” on the main floor of the premises only. When, in August 2003, a Town Building Inspector observed improvements being made to the cellar, including the installation of partitions, walls, moldings, finishes, and carpeting, the Town requested, and Caspian provided, further revised plans dated September 25, 2003 that expressly designated the cellar for “storage.”
Temporary and permanent certificates of occupancy were issued on October 3, 2003 and November 3, 2003, respectively, based upon the designation of the cellar as a storage area only, and after Caspian erected a barricade across the stairway that leads from the main floor to the cellar.
Caspian‘s furniture store then opened for business. Months passed, during which time an off-site location was used for storage. On May 5, 2004, the Town charged Caspian in the Green
In response to the zoning charges, Caspian filed with the Zoning Board of Appeals of the Town of Greenburgh (hereinafter the ZBA) an application dated July 22, 2005 for two area variances. One variance sought to allow an increase of the FAR from .134 to .268, in contemplation of the cellar‘s continued use as retail space. The second variance was to reduce the required off-street parking from 62 spaces, as would be required with the retail use of the cellar, to 33 spaces. In its statement in support of the variance application, Caspian represented that it had been “unaware that it could not utilize the basement for retail sales.” The variance application was supported by a floor plan, purportedly dated “4/7/03,” that denominated the cellar as “retail” space. Caspian argued that it sought use of the cellar as a showroom so that its retail space would be similar to that of its competitors in the area.
A public hearing was conducted on Caspian‘s application on February 16, April 20, May 18, June 15, August 31, and September 21, 2006. Caspian‘s representative stated at the hearing that Caspian had always believed that the cellar could be lawfully used for retail purposes. Input was received from members of the public and facts relating to various statutory variance factors were discussed by all concerned. Caspian provided the ZBA with a land use report from Nathaniel J. Parish, P.E., who stated in his report and hearing testimony that the showroom use of the cellar had created no adverse impacts that the parking requirements of the town code were intended to address. Those conclusions by Parish were adopted by Michael Maris, a traffic consultant hired by the ZBA. Homeowners from an adjoining residential neighborhood argued that Caspian had failed to comply with several conditions of the earlier site plan approval such as landscaping, noise, and overnight parking. In particular, they complained that because of the size and location of the building relative to the size of the site, trucks needed to back into the site. They maintained that such truck movement exacerbated traffic conditions on Central Avenue and disturbed the use and enjoyment of their homes.
On November 16, 2006, the ZBA adopted a resolution denying Caspian‘s application for variances, which was set forth in a
Caspian timely filed a notice of petition and petition dated January 11, 2007 and January 12, 2007, respectively, pursuant to
The Town filed an answer to the petition dated May 29, 2007, with extensive affidavits and exhibits.
In the order appealed from, the Supreme Court determined, as a matter of fact, that Caspian had deceived the Town regarding the intended use and purpose of the cellar. Nevertheless, the Supreme Court determined that deception is not an enumerated statutory factor of
The ZBA appeals.
For reasons set forth below, we reverse. Although the Supreme Court properly found that Caspian had engaged in ongoing,
II. Standard of Review
Local zoning boards have broad discretion in considering applications for area variances (see Matter of Inlet Homes Corp. v Zoning Bd. of Appeals of Town of Hempstead, 2 NY3d 769 [2004]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Margaritis v Zoning Bd. of Appeals of Inc. Vil. of Flower Hill, 32 AD3d 855, 856 [2006]; Matter of Ram v Town of Islip, 21 AD3d 493, 494 [2005]). A zoning board‘s determination shall be upheld if it is rational and not arbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 384-385 [1995]; Matter of Bassano v Town of Carmel Zoning Bd. of Appeals, 56 AD3d 665 [2008]; Matter of Kaufman v Incorporated Vil. of Kings Point, 52 AD3d 604, 608 [2008]; Matter of Clark v Town of N. Salem, 38 AD3d 773 [2007]; Matter of Margaritis v Zoning Bd. of Appeals of Inc. Vil. of Flower Hill, 32 AD3d at 856; Matter of Pasceri v Gabriele, 29 AD3d 805 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 772 [2005]). A determination is rational “if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition” (Matter of Halperin v City of New Rochelle, 24 AD3d at 772; see Matter of Ifrah v Utschig, 98 NY2d at 308; Matter of Grigoraki v Board of Appeals of Town of Hempstead, 52 AD3d 832, 833 [2008]; Matter of Marro v Libert, 40 AD3d 1100, 1101 [2007]).
III. Whether Caspian‘s Intended Use of the Cellar was Deceptive
A threshold consideration for this appeal is whether the ZBA and the Supreme Court had a basis for concluding that Caspian intended to deceive the Town with respect to its proposed and actual use of the cellar. We find that Caspian did, in fact, undertake a concerted effort to mislead the Town as to the purpose and use of the cellar, both before and after the issuance of the Town‘s site plan approval and its issuance of certificates of occupancy. Our conclusion is based upon the following five factors:
First, as noted by the Supreme Court, Caspian repeatedly represented its site plan application as a 6,208 square foot retail structure with a .134 FAR. Caspian conveyed its representations
Second, evidence that Caspian affirmatively misled the Town can be inferred from Caspian‘s awareness, reflected in the record, that retail space exceeding 6,208 square feet required variances for both FAR and parking. No variances were ever sought prior to the issuance of certificates of occupancy.
Third, further evidence of deception can be gleaned from the fact that improvements to the cellar, including partitions, walls, molding, finishes, and carpet, were installed prior to the issuance of the temporary certificate of occupancy, at approximately the same time that Caspian‘s second revised plan was submitted expressly identifying the cellar as for “storage only.”
Fourth, as noted by the ZBA in its decision, Caspian always maintained nearby distribution facilities rendering the use of the cellar for the storage of furniture unnecessary.
Fifth, after the store opened to the public, evidence of continuing deception exists from Caspian‘s submission on August 8, 2006 of a floor plan on which a revision changing the cellar‘s use to “retail” has apparently been back-dated to “4/7/03.” As explained by the Town‘s Building Inspector, the floor plan submitted on August 8, 2006 does not bear his approval stamp, as do earlier uncontested plans submitted by Caspian. The alleged 4/7/03 revision is listed out of chronological order in the lower left-hand corner of the document after a revision containing the notation “9/25/03,” an indication that the purported 4/7/03 revision was actually added sometime after September 25, 2003. Also, we note that the revised floor plans dated September 25, 2003, submitted to the Town by Caspian, do not show the “4/7/03” revision, and clearly delineate the cellar as merely “storage.”
IV. The Legal Effect of the Applicant‘s Deception upon an Area Variance Application
The parties dispute the effect that is to be given to any evidence that Caspian had engaged in a pattern of deception toward the Town regarding the use of the cellar. The ZBA maintains, by relying upon Matter of Ostroff v Sacks (64 AD2d
This Court decided Matter of Ostroff v Sacks in 1978, prior to the enactment by the State Legislature of
Matter of Holy Spirit Assn. for Unification of World Christianity v Rosenfeld was decided by the Second Department in 1983, also prior to the 1992 effective date of
The ZBA, while conceding that Ostroff and Rosenfeld precede the enactment of
Caspian correctly argues that the standards set forth in
Our interpretation that
The ZBA nevertheless points to Matter of Pioneer-Evans Co. v Garvin (191 AD2d 1026 [1993]) as authority that deceptive conduct to a zoning board, standing alone, provides sufficient reason to deny the grant of a special use permit, notwithstanding the prior enactment of
In light of the foregoing analysis, the Supreme Court properly limited its focus to the enumerated considerations of
V Application of Town Law § 267-b (3)
Pursuant to
“(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.” (
Town Law § 267-b [3] [b] ; see also Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at
The statute envisions that courts will engage in a balancing test of the enumerated factors (see Matter of Bull Run Props., LLC v Town of Cornwall Zoning Bd. of Appeals, 50 AD3d 683, 684 [2008]; Matter of Voetsch v Craven, 48 AD3d 585, 586-587 [2008]; Matter of Schumacher v Town of E. Hampton, N.Y. Zoning Bd. of Appeals, 46 AD3d 691, 692 [2007]). A ZBA is not required to justify its determinations with supporting evidence as to each of the five factors, so long as its determinations balance the relevant considerations in a way that is rational (see Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 929 [2007]).
We find that the ZBA considered and balanced the factors of
As to the primary consideration of the statute, regarding the benefit of the applicant weighed against any adverse impact upon the community, the ZBA noted that site plan approval was received from the Planning Board, permits were issued by the building department, and tax assessments were levied by the tax assessor, all based upon plans showing Caspian‘s cellar to be used for storage only. The ZBA concluded, in its written certification of decision, that Caspian “never intended use [of] the basement for storage,” and that Caspian “concealed from the Town the actual intended use of the basement of this property from the very first day of operation.” The ZBA concluded, in broad fashion, that any benefit to Caspian in permitting it to use the cellar as a retail showroom was outweighed by the detriment to the Town, its citizens, and its commercial operations, that would result from permitting Caspian to successfully mislead planning, building, and tax authorities. We take no issue with the ZBA on this point.
To the extent that
The ZBA‘s recognition that the alternative uses of the cellar were limited, essentially, to being a showroom or a storage area, “merely stated the obvious” (Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d at 930) as to this factor. Nevertheless, the factor was considered. A showroom use of the cellar cannot be achieved without significant area variances as to FAR and parking, as noted. Moreover, Caspian provided no evidence of the square footage of competitor showrooms or the effect that additional showroom space might have on its profitability. Even if we were to presume that the additional showroom space might render the furniture store more profitable or competitive, this record, unlike that of Matter of Hampshire Mgt. Co. v Nadel (241 AD2d 496, 497 [1997]), upon which Caspian relies, fails to evidence the effect of the cellar showroom on Caspian‘s relative competitiveness.
Not all of the statutory factors favor the denial of Caspian‘s area variance application. To the extent that
Here, based upon complaints from members of the community, the ZBA determined that the particular size and placement of the buildings on the lot required delivery trucks to maneuver into Caspian‘s parking lot backwards, tying up traffic on Central Avenue, and that this factor was among those that warranted a denial of the requested area variance. The ZBA‘s determination in this regard is wholly unsupported by the record, for two reasons. First, it is contrary to the portions of the land use report of Caspian‘s expert, Nathaniel J. Parish, P.E., which found that the showroom use of the cellar did not have an adverse impact upon local traffic and parking. Significantly, Parish‘s analysis was adopted as accurate with respect to traffic and parking by the ZBA‘s own traffic consultant, Michael Maris, based upon its Institute of Transportation Engineers (hereinafter ITE) estimates. Second, the complaints voiced by neighbors, that trucks of a certain size disrupt traffic by backing into the parking lot, while perhaps evidencing flawed design, would remain unchanged whether the cellar was used as a showroom or for storage. As correctly noted by the Supreme Court, other neighborhood complaints regarding the timing of garbage pickups, overnight parking, and landscaping, fail to relate to Caspian‘s requested variance.
Contrary to the determination of the Supreme Court, we also find that the ZBA adequately distinguished other cases in the Town of Greenburgh where area variances had been granted (see generally Knight v Amelkin, 68 NY2d 975, 977-978 [1986]; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 517 [1985]; Matter of Muth v Scheyer, 51 AD3d 799, 800 [2008]; Matter of Berk v McMahon, 29 AD3d 902, 903 [2006]).
V. Balancing the Statutory Factors
The application to the ZBA raised some statutory factors of
In weighing these competing factors, which were each addressed in some form or fashion by the ZBA, we are mindful that our judicial responsibility is to review zoning decisions to assure that the statutory factors have been considered, but not, absent proof of arbitrary or irrational action, to make the decisions for the zoning boards (see Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d at 928). Local zoning boards have discretion in considering variance applications, particularly given their “familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community” (Cowan v Kern, 41 NY2d at 599).
Under the circumstances of this case, we find that the determination of the ZBA denying Caspian‘s requested area variances was neither arbitrary or irrational. In doing so, we are guided by two analogous cases from this Court, Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals (43 AD3d 926 [2007]) and Matter of Becvar v Scheyer (250 AD2d 842 [1998]). Both cases involved homeowners who constructed second stories to their homes in violation of applicable local regulations and without obtaining prior area variances. In both cases, while some factors may have favored the grant of area variances that were later sought, this Court upheld the ZBA‘s denial of the variances on the grounds that, principally, the applicants’ requests were significant and their difficulties self-created (see Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d at 930-931; Matter of Becvar v Scheyer, 250 AD2d at 843; see also Matter of Robbins v Seife, 215 AD2d 665 [1995]). So too, here. Caspian designed and used its basement as a showroom knowing that doing so was in violation of local zoning regulations.
In sum, we conclude that while an applicant‘s deceit toward municipal boards with respect to prior or current applications may not, standing alone, warrant the denial of an area variance under
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, on the Court‘s own motion, the notice of appeal is treated as a application for leave to appeal, leave to appeal is granted (see
Spolzino, J.P., Florio and Angiolillo, JJ., concur.
Ordered that on the Court‘s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see
Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.