Opinion
048114.
Decided August 8, 2005.
Daniel E. Bertolino, Esq. Daniel E. Bertolino, P.C. New City, New York, Attorney for Petitioner.
Ira M. Emanuel, Esq. Ira M. Emanuel, P.C. New City, New York, Attorney for Respondents.
The following papers numbered 1 through 7 were read upon review of the instant petitions for relief pursuant to Article 78 of the Civil Practice Law and Rules (CPLR) and upon review of the answer and opposition to the instant petitions provided by respondents, James McDonnell, Chairman, Kenneth Baisley, Wellington Casscles, Jeffrey Gizzi, Robert Morlang, and Joseph Vasti (constituting the Zoning Board of Appeals of the Town of Stony Point) and the Zoning Board of Appeals of the Town of Stony Point (the "ZBA") (hereinafter collectively referred to as "respondents"):
PAPERS NUMBERED
Notices of Petitions 1
Verified Petitions 2
Affidavit of Helen Carlevaro 3
Affirmation of Daniel E. Bertolino, Esq. 4
Verified Answer 5
Affidavit of James McDonnell. Katz in Opposition 6
Record and Return 7
Reply Affirmation
Upon the foregoing papers, the petitions are dismissed.
This is a CPLR Article 78 proceeding in which petitioner Helen Carlevaro (hereinafter "petitioner"), seeks a judgment pursuant to CPLR Article 78: (1) annulling and setting aside the respondents' decisions rendered on March 18, 2004 and again on November 5, 2004, which denied petitioner's application for bulk variances from the Town of Stony Point's zoning code; and (2) directing respondents to grant petitioner her requested variances. Petitioner is the owner of property located at 22 River Road, Stony Point, New York. The property is approximately 2,498 square feet in size. The application for variances was made so that petitioner could build a two-story house on the property that would be approximately 15' in width and 46' feet in length. The property is currently located in a RW Zoning district. When the property was originally purchased, it was in an I (Industrial Zoning District) which permitted residential uses as well as commercial and industrial uses. The zoning (bulk) requirements for residential uses at that time, however, were even more restrictive than the bulk requirements that exist today. Petitioner purchased her property on July 2, 1970 and at the time of the purchase, the property had a one-story dwelling on it. The home was subsequently removed in 1974 due to its deteriorated condition. At that time, the house was replaced with a mobile home by petitioner's then tenant. The mobile home was purchased by petitioner in 2001 and the mobile home still exists on the property. Petitioner avers that "[u]pon information and belief, the utilization of the trailer was legal at the time that the trailer was placed on the parcel." (Verified Petition dated November 30, 2004 at ¶ 4). Apparently, the Town of Stony Point has brought a proceeding in the Town of Stony Point Justice Court, which is based on a violation issued by the building inspector that the mobile home is not a permitted use in the zoning district. Petitioner's application sought the following variances regarding lot area, lot width, street frontage, side yard setback, side yard, total side yard, floor area ratio, parking in front yard and required flood plain:
The 15 feet would be the width of the front of the house as seen from the street. This narrow width is necessitated by the dimensions of the property.
It appears that the property would have had to have been 10,000 square feet in size with a lot width of 100 feet, a front yard of 25 feet, a total side yard of 30 feet, a side yard of 10 feet, a rear yard of 35 feet, and an F.A.R. (floor area ratio) of 0.30. This property has a lot area of 2,498 feet, a lot width of 25.33, a front yard of 25 feet, a total side yard of 9.8 feet, a side yard of 4.9 feet, a rear yard of 4.9 feet, and an F.A.R. of 0.44. Thus, at the time the house was demolished, the property was not a buildable lot under the then existing zoning requirements.
Dimension Required Proposed
Lot area 5000 sq. feet 2498 sq. feet
Lot width 50 ft. 25.33 ft.
Side setback 10 ft. 4.9 ft.
Total side setback 20 ft. 9.8 ft.
Side yard 5 ft. 4.9 ft.
Rear yard 5 ft. 4.9 ft.
Street frontage 40 ft. 25.33 ft.
Floor area ratio 0.4 0.44
First floor elevation (flood plain)8 ft.4.5 ft. In addition to the above dimensional variances, petitioner would also require permission for front yard parking.
While the flood plain elevation variance was an issue in the March 18, 2004 decision, it appears that in connection with the November 4, 2004 determination, petitioner agreed to mitigate flood impacts by raising the house elevation to eight feet. Thus, the flood plain elevation variance was no longer an issue in the ZBA's later determination.
The ZBA held public hearings on the application on December 4, 2003, January 8, 2004, February 5, 2004 and March 4, 2004 and in rendering its decision on March 18, 2004, which denied petitioner her requested variances, the ZBA stated that it relied on the testimony provided by Daria Henze, Todd Carlevaro and Bruce Carlevaro. Thereafter, petitioner was granted a re-hearing of her application, and there were public hearings held on July 1, 2004, September 2, 2004, September 16, 2004, and October 7, 2004. In its final determination dated November 4, 2004, the ZBA made the following findings:
It appears that the re-hearing was granted because of petitioner's filing of this proceeding to review respondents' March 18, 2004 determination and because of "certain court decisions which may have applicability to the facts" of this case. One such decision was the decision and order rendered by the Honorable Andrew P. O'Rourke, J.S.C. on March 4, 2004, which involved another substandard parcel of property located on the same street as petitioner's property (referred to herein as the " Jacobs case"). In the Jacobs case, Judge O'Rourke annulled the respondents' denial of the petitioner's application to re-build a house that burned to the ground on property that is similar in size to the property involved in this case. Given that there were obvious similarities in the size of the properties and the variances requested, it appears respondents thought it prudent to take a second look at petitioner's application. As discussed in more detail, infra, there are a number of important distinctions which justify the respondents' denial of the variances in this case as compared to the respondents' denial of the variances in the Jacobs case ( i.e., (1) there was already a house existing on the property that had sustained fire damage and the variances were necessary to rebuild it; (2) the house being proposed was similar in character to other homes in the neighborhood and therefore, created no aesthetic concerns; and (3) there is no evidence that the property in the Jacobs case raised the same environmental concerns as those raised in this case regarding the Hudson River drainage channel and flooding).
"(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 variance': This Board is well aware of the recent court decisions which call upon it to give great weight to this factor. This Board understands that the lots in this neighborhood pre-date the 1961 Zoning Code and that many were rendered non-complying as a result of that code and subsequent amendments. This Board acknowledges that the applicant has expressed its intent to do anything economically reasonable to mitigate flooding, traffic safety and fire issues. Despite this, it is clear to this Board that the proposed house does not fit into this area. The applicant's own planimetric submission shows that the proposed house is significantly narrower than even the narrowest home in the area (15 feet vs. 22 feet, or almost 1/3). It is 2/3 narrower than its largest neighbor to the North. This narrow construction is not a mere design choice. It is the widest that the house can be built to even approach the requirements of the Zoning Code. This dimensional issue goes directly to the aesthetic impact on the area. The house will appear as a mere sliver when compared to its neighbors. Combined with the need to raise the floor elevation by 3.5 feet to raise the house above the flood plain, the proposal will create an eyesore in an area that is trying to recover. . . . (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': The applicant has shown that it has tried to acquire a portion of the adjoining lot to the South in order to create a wider lot. Those attempts to contact the adjoiner have received no response. The northerly adjoiner, Mr. Burkert, has attended most of the public hearings, and has not indicated a desire to purchase the subject lot. (3) `whether the requested area variance is substantial': The requested variances are substantial. Those for lot area, lot width, side setback, total side setback, street frontage and flood plain elevation are approximately 50% in magnitude. The remaining variances for floor area ration and rear and side yards, are relatively small. However, in the context of this site, and especially considering the adverse impact this Board has determined will result from the variances if granted, the great magnitude of six of the variances sought will be substantial. (4) `whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district': The lot is situated in a tidal flood area, and is in fact the subject of periodic flooding from the Hudson River. This flooding cannot be prevented. A drainage channel flows through the property to the Hudson River from upland points. Without raising the house 3.5 feet, and building a wall around the drainage channel, the house will be in constant peril from surrounding water. In fact, the Town Engineer testified that it was uncertain whether a wall could be built in a way that maintained its stability. While these factors may not impact the neighborhood, they clearly impact this particular lot. The Building Inspector was clear: no house should be build on this lot because the surface water problems which cannot be adequately mitigated. (5) `whether the alleged difficulty was self-created': The property has been owned by these families for many years. The Zoning Code has changed a number of times during their ownership. During this time, they have maintained a trailer on the property, but have not sought to build a house until now. Although it would be easy to state that the applicant created its own difficulty by not replacing the trailer at an earlier time, this Board cannot say that such delay, in this case, rises to the level of a self-created hardship. Based upon the foregoing examination of the five criteria required by the Town Law, and using the results to balance the interests presented, this Board believes that the applicant has not met its burden. The impact on the surrounding area, combined with the magnitude of the variances requested and the difficulty of building on the lot, all mitigate against the granting of the requested variances."
The traffic safety issue was raised by the Rockland County Department of Planning and had to do with the fact that the proposed plan would not permit for a car parked in the front yard to turn around and exit in a forward position. Instead a parked car would have to back out of the driveway onto River Road, which is a busy street. Petitioner offered to move the house deeper into the property in order to provide room to construct a turn around area for the parked cars, but this issue was never fully developed in the record. (See ZBA Board Resolution dated November 4, 2004, Verified Petition dated November 30, 2004, Exhibit F).
The fire safety issue involved was the proximity of the house to the adjoining existing house to the North. To address this issue, petitioner "agreed to build the house with appropriate fire ratings and to not have windows on the northerly side of the house . . . [and] to a central station fire alarm." (ZBA Board Resolution dated November 4, 2004, Verified Petition dated November 30, 2004, Exhibit F).
The narrowness of the house proposed is how respondents distinguished this property from other substandard properties in the area on which houses have been built. Thus, while some of those properties are arguably equivalent in size to this property, their shape permitted houses of substantially wider proportions to be built, as opposed to the extremely narrow house proposed by petitioner which respondents viewed to be an aesthetic concern.
While in this decision, respondents appear to weigh this factor in favor of petitioner, in respondents' opposing papers, they appear to have changed their position somewhat by raising the fact that there are other uses that could be put to the property that would not require a variance ( i.e., recreational uses) and, further, that petitioner has provided no proof that she is unable to sell her property to the adjoining property owners. There are cases wherein the failure of the applicant to show evidence that he/she has tried to sell the property to the adjoining neighbors caused the factor whether the applicant has sought other options to alleviate the hardship to be weighed against the applicant. ( Matter of Durler v. Accettella, 165 AD2d 872; Matter of Sakrel v. Roth, 182 AD2d 763; Matter of Weisman v. Zoning Bd. of Appeals of the Village of Kensington, 260 AD2d 487).
(Verified Petition, ZBA Resolution dated November 5, 2004, Exhibit F to Verified Petition dated November 30, 2004). The second Article 78 was filed after the respondents' second denial.
The minutes of the ZBA meeting on March 18, 2004 show that the respondents were also influenced by a letter that they had received from the County Planning Department that raised concerns regarding the fact that the house would impact the water course located on the property and that the lack of a turnaround area for the cars to be parked in the front yard would adversely affect traffic and safety on River Road.
In support of these Article 78 proceedings, petitioner contends that determinations rendered were arbitrary and capricious, without rational basis and without substantial evidentiary support. Petitioner avers that at the public hearings in July, September and October, 2004, the ZBA "stated repeatedly to my attorney and to the audience that the ZBA had to reverse itself and grant the variances `based upon case law' which presumably meant the Decision and Order of Judge O'Rourke in the Jacobs case." (Affidavit of Helen Carlevaro, sworn to November 30, 2004 "Carlevaro Aff." at ¶ 8). In support of her conclusion that the balancing test required under the Town Law supports a grant of the variances requested, petitioner argues that there is a substantial benefit to her that would be derived by the granting of the requested variances since it will permit the removal of a small antiquated substandard trailer, which will be replaced by a modern permanent dwelling. Further, she contends that there is no detrimental impact to the character of the neighborhood "since the neighborhood consists of small single-family dwellings on small parcels. In fact, out of the 14 residences in the neighborhood, only two of the residences meet the present bulk requirements for this area." (Carlevaro Aff. at ¶ 12). Further, petitioner argues that "a small single-family house in place of a trailer will have no affect [sic] whatsoever upon the character of the neighborhood." (Id. at ¶ 13). Petitioner contends that the second factor also weighs in her favor since she cannot overcome the problem since there is no other land available that she can purchase and combine with her property to satisfy the bulk requirements under the zoning code. With regard to the third factor whether the variances sought are substantial petitioner argues that "[w]hile the variances appear to be substantial when measured against the existing conditions, the Court should consider the fact that the proposed new residential dwelling is only 15' by 46', which is sized proportionately to the size of the lot. . . . Thus, the variances are necessary to accommodate existing conditions. The denial of all of the variances must be considered arbitrary, particularly in an area where only two of the fourteen residences meet the present bulk requirements." (Id. at ¶ 16). With regard to the next factor whether the proposed variance will have any adverse effect or impact on the physical or environmental conditions in the neighborhood or district petitioner argues that "there will be no effect whatsoever upon the neighborhood. The variation will not cause adverse aesthetic, environmental or ecological impacts on the property or on the surrounding areas . . . [t]he neighborhood will be improved once the trailer is replaced with a home." (Id. at ¶ 16). Finally, with regard to the last factor whether the difficulty was self-created petitioner avers "although the property was improved by a one-story dwelling when purchased in 1970, it was shortly thereafter that the house was demolished and a mobile home was placed on the property. The trailer has been located on the property for more than 30 years. If it was violation, I was unaware that it was a violation until the issuance of a violation notice in 2002, after 30 years of having a trailer on the property." (Id. at ¶ 17).
In opposing the petition, respondents submitted an affidavit from James McDonnell, Chairman of the ZBA, wherein he makes the following arguments in support of respondents' denial of the requested variances:
1. Respondents argue that the magnitude of the variances sought were staggering (at approximately 50%).
2. Respondents cite to their finding that there would be a negative aesthetic impact (the house appearing like a mere sliver compared to its neighbors). Indeed, respondents point to the fact that the trailer on the property is wider than the house that is being proposed to be constructed.
3. Respondents argue that there will be an adverse environmental impact given the property's location within the tidal flood plain of the Hudson River and given the drainage channel that runs through the property. Respondents have annexed photos which they argue depict "that flooding of the property in a rather ordinary storm is significant." (Affidavit of James McDonnell, sworn to February 3, 2005 "McDonnell Aff." at ¶ 7). Furthermore, the ZBA received testimony from the Town of Stony Point's engineer (John Loch, P.E.) and building inspector (William Sheehan) which suggested that no home could be safely built on the property. Thus, Mr. Loch testified "that he was unsure if a retaining wall for flood waters could be sufficiently stable to allow for construction of a home. Mr. Sheehan stated, flatly, no house should be built on this lot because of the surface water problems cannot be adequately mitigated." (McDonnell Aff. at ¶ 8). Respondents contend (and the Court agrees) "that petitioner submitted no evidence or testimony to the contrary." (Id. at ¶ 9).
It appears that petitioner agreed to mitigate flood impacts by raising the house elevation to eight feet (thus the flood plain elevation variance was no longer an issue). However, there were still issues concerning drainage impacts. The two proposals submitted by petitioner were to (1) raise the house on pilings and run the drainage below it or (2) build a wall to divert water around the house. Based on the ZBA's decision dated November 4, 2004, the Town of Stony Point's Engineer and Building Inspector "objected to raising the house and running the drainage below it" because of the "difficulty of maintaining the drainage ditch in those circumstances." However, the Town's Engineer stated that building the wall was possible, but they would need an engineering study to ensure that the wall would be stable. (See ZBA Resolution dated November 4, 2004, Verified Petition, Exhibit F). There is no evidence that petitioner provided the engineering study deemed necessary by the Town's Engineer.
4.With regard to whether other options have been explored, respondents argue that while they received information that no adjoining property owners wished to sell any of their property to petitioner (although the meaningfulness of those negotiations are questioned by respondents), they did not receive any information regarding whether petitioner "attempted to sell her property to an adjoiner, or if [she] did, whether the asking price and terms were realistic given the market and the situation." (McDonnell Aff. at ¶ 11). Finally, respondents argue that the use of the property for residential purposes is not the only use to which the property could be put. "The property could be legally used as a recreation area and be completely conforming to the requirements of the Zoning Code." (Id. at ¶ 12).
In petitioner's reply, petitioner focuses primarily on her contention that she was sandbagged into believing that the re-hearing was being granted so that respondents could change their original decision and grant her the requested variances. Thus, petitioner argues
"What possible motive could there have been for the ZBA to invite the Carlevaro family back, other than to grant the application based upon the correct decision of Judge O'Rourke in the Jacobs matter? . . . Once the ZBA was told by Judge O'Rourke that their denial of the Jacobs application was arbitrary and capricious, they realized, correctly so, that the Court would also require the ZBA to grant the Carlevaro application, since both lots are approximately the same size, on the same road, and only seven lots away from each other. That is the one and only reason why the ZBA invited the Carlevaro family back to `take a second look.'"
(Affirmation of Daniel E. Bertolino, Esq. dated March 2, 2005 at ¶¶ 6-7).
In further support of her claim that respondents had conceded that the law required the ZBA to grant the application, petitioner asserts that Chairman James McDonnell made the following statement to her counsel at one of the re-hearings:
"Well, in between denial and getting back to you, we all went to school and found out that an interpretation of the new understanding of a law and how it came down in 2003 which had to do with this. So, reviewing it and going over it, we felt it also included you and the clients that you represent. That is the reason why we called you back in to see how possibly we can make this a settlement between both parties."
(Id. at ¶ 8).
LEGAL ANALYSIS
With respect to a challenge brought concerning a zoning board's land use determination, the Court is mindful that such zoning authorities have broad discretion in interpreting local zoning ordinances and a court may not substitute its judgment for that of the zoning board. ( Matter of Ifrah v. Utschig, 98 NY2d 304, 308; Matter of 550 Halstead Corp. v. Zoning Bd. of Appeals of Town/Village of Harrison, 307 AD2d 291, aff'd 1 NY3d 561). Indeed, a court may only reverse a Zoning Board's determination if it finds that the action taken by the board "was illegal, arbitrary or an abuse of discretion." ( Matter of Ifrah, 98 NY2d at 308). As a result, a zoning board's determination must be upheld if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result insofar as a contrary determination is itself supported in the record. (Matter of Ifrah v. Utschig, supra, at 308; Matter of P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals of Village. of Pleasantville, 98 NY2d 683, 685; Matter of Sasso v. Osgood, 86 NY2d 374, 384 ; Matter of Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, 98 NY2d 190; Matter of Savetsky v. Board of Zoning Appeals of Town of Southampton, 5 AD3d 779, 780, app. denied, 3 NY3d 604). Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." ( 300 Gramatan Ave. Assoc. v. State Division of Human Rights, 45 NY2d 176, 180).
Here, respondents properly weighed the benefit to the applicant against the detriment to the health, safety and welfare of the community by considering the five factors set forth in Town Law § 267-b, which are required to be weighed in connection with an application for an area variance:
"(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 other 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."
( Matter of Sasso v. Osgood, 86 NY2d 374, 382). Respondents relied on testimony provided by petitioner and her attorney, as well as testimony provided from its Building Inspector and Engineer concerning the environmental and safety impacts implicated with this proposal ( i.e., fire hazard, traffic hazard, and flooding). The potential fire hazard would be created by the proximity of the proposed house to the house on the adjoining property. The flooding/environmental issue arises since the property exists on a flood plain and there is a drainage channel from the Hudson River running directly through the property. This drainage channel would have to be redirected by a wall connected to the house so that the house would not be positioned over the channel. And the traffic safety issue had to do with the lack of a turn-around provided in the front yard parking. This lack of a turn-around would cause vehicles parked in the driveway to have to back-out onto River Road, which is apparently a very busy street.
While the Appellate Division, Second Department, has struck down ZBA denials concerning area variances where the properties neighboring the petitioner's property are equally substandard ( i.e., the homes constructed on those properties do not meet the zoning code requirements to the same extent as the house being proposed), it appears the facts in those cases are readily distinguishable since they did not pose the same environmental concerns (flood plain, drainage channel, fire and traffic) and aesthetic concerns that are raised in this case. (See, e.g., Matter of Easy Home Program v. Trotta, 276 AD2d 553; Matter of Crystal Pond Homes, Inc v. Pior, 305 AD2d 595; Matter of Sautner v. Amster, 284 AD2d 540; Matter of Gonzalez v. Zoning Bd. of Appeals of Town of Putnam Valley, 3 AD3d 496). In those cases, given that many of the neighboring properties/houses were equally substandard, the houses being proposed in those cases did not raise aesthetic concerns and did not have the potential of adversely impacting the character of the neighborhoods. Here, while the property in this case is arguably equal in square footage to some of the other properties in this neighborhood on which houses have been built, none of the houses is as narrow as the house proposed in this case. Further, there are other environmental issues regarding the flood plain and drainage channel that distinguish the construction of a home on this property as compared to the houses that currently exist on the neighboring properties. Indeed, petitioner did not offer evidence to rebut the major environmental issues raised by respondents' experts concerning the feasibility of building a home on this property given the flood plain and Hudson River drainage channel.
By contrast, where the variance denial is based on the detrimental impact on the character of the neighborhood, courts uphold the ZBA determinations even where such denials rendered the properties unbuildable. (See, e.g., Matter of Corigliano v. Zoning Bd. of Appeals of City of New Rochelle, 18 AD3d 750; Matter of Milburn Homes, Inc. v. Trotta, 7 AD3d 531; Matter of Westervelt v. Zoning Bd. of Appeals of the Town of Woodbury, 7 AD3d 964; Matter of Four M Constr. Corp. v. Fritts, 151 AD2d 938; Mealie v. Board of Zoning Appeals of the Town of Brookhaven, 14 AD3d 703; Matter of Mangan v. Cianciulli, 2005 WL 1460503; Matter of Peconic Shores Development v. Board of Zoning Appeals of Town of Brookhaven, 796 NYS2d 554; Matter of Allt v. Zoning Board of Appeals of Town of Hyde Park, 255 AD2d 311). For example, in Matter of Milburn Homes, Inc. v. Trotta, 7 AD3d 531, petitioner owned property that was less than 60 feet wide and did not qualify for the exemption from the zoning code requirements then in effect. The ZBA denied petitioner's application for area variances which were required in order for a home to be built on the property. The lower court and the Appellate Division, Second Department, upheld the ZBA's denial in that case since "[t]he granting of the variances would have resulted in the creation of a uniquely substandard lot with substantially less than the required lot area, frontage, front yard, and total side yard setback areas . . . and would have produced an undesirable change in the character of the neighborhood . . . `Although the petitioner is unable to develop the property without the requested variances, the record reveals "that strict application of the zoning ordinance was necessary to promote and protect the public health, safety and welfare and that the need to promote the public good outweighed any injury to petitioner."'" ( Milburn, supra, 7 AD3d at 531-532; citations omitted; see also Matter of Sakrel, Ltd. v. Roth, 182 AD2d 763 [ZBA's denial of request for a reduction in the permissible lot area from 6,000 to 4,000 square feet and a reduction in the width of the front building line from 60 to 40 feet was rational and supported by substantial evidence]). Thus, a ZBA denial should be upheld where there is substantial evidence supporting the finding that the requested variances would have "an undesirable effect on the character of the neighborhood." ( Matter of Westervelt v. Zoning Board of Appeals of the Town of Woodbury, 7 AD3d 964, 965 ["[t]he requested variance was substantial; the granting of an area variance to allow construction of a single-family dwelling on a lot with no street frontage would have an undesirable effect on the character of the neighborhood, and the alleged difficulty was self-created"]).
The Court finds that respondents properly engaged in the balancing test required by Town Law § 267-b by weighing the factors delineated in Town Law § 267-b(3)(b) in rendering their decisions regarding petitioner's request for bulk variances. Petitioner concedes that the variances requested (almost all of which were 50% or greater) were substantial. The Court finds that there was substantial evidence supporting respondents' finding that the benefit to petitioner was outweighed by the detriment to health, safety and welfare of the community ( i.e., that the granting of the variances in this case would create an adverse impact on the character of the neighborhood and had the potential of creating fire, traffic and flooding hazards). Based on the foregoing, the Court finds that the decisions dated March 18, 2004 and November 4, 2004 were not arbitrary or capricious and the petitions are hereby dismissed.
Because of the flood plain, the house had to be elevated 8 feet. Thus, not only would the house be at least 1/3 narrower (15 feet wide vs. 22 feet wide) than any other house in the neighborhood, but it would also be elevated at a higher level, making it even more noticeably deficient and out of character with the surrounding homes.
The foregoing constitutes the Decision, Order and Judgment of this Court.