Goldberg v. Zoning Board of Appeals of City of Long BeachGoldberg v. Zoning Board of Appeals of City of Long Beach
Ordered that the appeals from the order dated August 19, 2009, are dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the petition is denied, the determination is confirmed, the procеeding is dismissed on the merits, the motion for a preliminary injunction is denied, and the order dated August 19, 2009, is modified accordingly; and it is further,
Ordered that the matter is remitted to the Supreme Court,
Ordered that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.
The appeals from the order dated August 19, 2009, must be dismissed because no appeal lies as of right from an intermediate order in a proceeding pursuant to
Janet Slavin is the owner of a single-story oceanfront bungalow located on a landlocked lot in the West End neighborhood of Long Beach. When originally constructed, Slavin“s bungalow was one of 10 single-story bungalows built, in two rows divided by a common walkway, on a parcel of property directly north of the beach, between Illinois Avenue and Ohio Avenue. In the 1930“s, the five bungalows lying closest to the shore, those on the southern half of the common walkway, were destroyed by a hurricane. Years later, the owner of the parcel split the land into five separate lots, each measuring approximately 90 feet by 20 feet and each bisected by the common walkway. Before the lots were sold, the original owner recorded an easement that made the common walkway a legal right of way fоr ingress and egress to both Ohio Avenue and Illinois Avenue.
After Slavin purchased the middle of the five lots, Anna DeSanctis and Frank DeSanctis, who had previously purchased the two lots to the east of Slavin“s lot, obtained variances to build a large two-story house on their double lot. Later, Lenore Goldberg, who owned the two lots directly to the west of Slavin“s lot, demolished her bungalow and constructed a new home, to the maximum allowable dimensions of the building code, on her double lot. Both the DeSanctis residence and the Goldberg residence were built entirely on the north side of the сommon walkway.
By application to the Zoning Board of Appeals for the City of Long Beach (hereinafter the Board), Slavin sought variances which would permit her to reconstruct the first flоor of her bungalow and construct a second-story addition. As proposed, the first story would be built on the footprint of the existing bungalow and would remain entirely on the north side of the common walkway. The second-story addition, which would be supported by posts and built approximately 12 feet above the common walkway, would extend beyond the first story, bridging
After a hearing, and upon review of submissions from Slavin and from those opposed to the project, the Board granted the variances, finding that the detriment to thе health, safety, and welfare of the community did not outweigh the benefit to the applicant. The petitioners, Goldberg and the DeSanctises, then commenced the instant hybrid proceeding рursuant to
“Local zoning boards have broad discrеtion in considering applications for area variances” (Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 67 [2009]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Gjerlow v Graap, 43 AD3d 1165, 1167 [2007]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]). In reviewing an application for a variance, a zoning board is required to engage in a balancing test “weigh[ing] the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood оr community if the variance is granted” (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612; see Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002];
In the instant case, contrary to the Supreme Court“s conclusion, thе Board“s determination granting the variances was not arbitrary and capricious, and it should have been sustained upon judicial review. After the Board conducted an extensive hearing, considered renderings of the proposal and aerial photographs of the surrounding community, and reviewed area variances previously granted in the neighborhood, it rationally conсluded that the proposal would not affect the character of the neighborhood, that the requested variances were not substantial, that the desired benefit could not be achiеved by any other method, and that the structure would not have an adverse impact on the physical or environmental conditions in the neighborhood (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612-613). In sum, the Board properly weighed the benefit to the applicant against any potential detriments to the health, safety, and welfare of the community and made a rational determination that was supported by the record (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612-613; Matter of Halperin v City of New Rochelle, 24 AD3d at 772;
Moreover, the Supreme Court should have declared that the second-story addition, as proposed, would not interfere with the petitioners/plaintiffs” use of the common еasement for ingress and egress. Express easements are governed by the intent of the parties (see Lewis v Young, 92 NY2d 443, 449 [1998]; Guzzone v Brandariz, 57 AD3d 481 [2008]; Estate Ct., LLC v Schnall, 49 AD3d 1076, 1077 [2008]). “As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical
In the instant case, the easement specifically granted the petitioners/plaintiffs the right of ingress and egress over the common walkway. Although the petitioners/plaintiffs contend that the addition would impede their ability to use the common walkway to gain access to their respective properties because it would create a “dark and frightening” “alleyway,” they failed to submit any evidence supporting this contention. In fact, the reсord demonstrates that the addition, as proposed and approved, would not impair the petitioners“/plaintiffs” use of the common walkway for ingress and egress, as it would be built approximately 12 feet above the common walkway, that neither the dimensions nor location of the walkway would be altered, and that the walkway would be illuminated by lighting fixtures controlled by motion sensors (see Sambrook v Sierocki, 53 AD3d at 818; see also Guzzone v Brandariz, 57 AD3d at 482-483).
The respondents/defendants” remaining contentions are without merit.
Prudenti, P.J., Covello, Florio and Belen, JJ., concur.