Opinion
94817.
Decided January 24, 2007.
Fix, Spindelman Brovitz Goldman, PC, Karl S. Essler, Esq., of counsel, for Petitioner; Davidson O'Mara, P.C., Pamela Doyle Gee, Esq., of counsel, for Respondent.
By a Notice of Petition and Verified Petition, dated July 31, 2006, Reply Affirmation of Karl S. Essler, Esq., dated September 21, 2006, and the record of the proceedings below, Petitioner made application for an Order reversing, annulling and setting aside the determination of Respondent which denied Petitioner's applications for area variances from the Town of Erwin Code and directing Respondent to grant area variances which would allow Petitioner to (1) construct a single story building without a functional second story; (2) construct a single story building with a first story height of 22 feet, 8 inches; and (3) have 0% second floor windows on that part of the subject building that fronts Silverback Lane. By an Affidavit of Rita McCarthy, dated September 19, 2006, with attachments, and the record below, Respondent opposes Petitioner's application and seeks an Order denying the Petition in its entirety.
Petitioner owns a 12-acre parcel of land in the Town of Erwin. In 2001, the Town amended its zoning ordinance, as part of a comprehensive plan to create a pedestrian-friendly area of service businesses, so as to place Petitioner's parcel in a B2 Office Commercial District (B2 District) which prohibits retail commercial establishments. This newly created B2 District is located next to a densely developed commercial area which includes a Home Depot, a Wal-Mart Superstore, two large automobile dealerships, two large vacant stores (previously a K-Mart and a grocery store) and a small strip mall.
On or about March 2004, Petitioner made application for a use variance to allow it to develop a 3-acre subparcel of their property for the construction of a tractor supply store. After the application was denied, Petitioner commenced an Article 78 proceeding to challenge Respondent's determination. By a Decision and Order of this Court, dated April 25, 2005, that determination was reversed and Respondent was directed to issue to Petitioner a use variance based upon this Court's finding that Respondent's decision to deny the use variance for the subject parcel was not supported by the substantial evidence in the record.
Following this Court's decision, the Town Attorney, in a memorandum letter, dated January 27, 2006, advised Respondent that, in addition to issuing the use variance, certain area variances with respect to setbacks, parking and the requirement for a functional second floor would also have to be granted to allow Petitioner to construct the retail establishment it had proposed Petitioner then made application for three area variances: (1) to allow a single story building without the functional second story required by the Town Code; (2) to allow the building to have a first story height of 22 feet, 8 inches, where the Town Code allows a maximum first floor height of 12 feet; and (3) to allow the building to have 0% second floor windows on the side of the building fronting Siverback Lane where the Town Code requires 30% second floor windows.
The area variances concerning setbacks and parking were granted by Respondent.
Following a hearing held before Respondent on June 27, 2006, Respondent issued a resolution, dated July 7, 2006, which denied all three variance applications, except that Respondent did allow for a first floor height of 20 feet. In its resolutions, Respondent found that (1) all three variances were substantial and that they would produce an undesirable change in the neighborhood as envisioned by the Town's comprehensive plan; (2) the hardships for which the variances were sought were self-created; (3) Petitioner had failed to demonstrate the benefit that would be achieved through the granting of the variances for a single story building and for the elimination of the window requirement; and (4) allowing a single story building would be a detriment to the future development of nearby properties as envisioned by the comprehensive plan.
Respondent's resolutions also found that the variance with respect to the windows would not be a detriment to the existing neighborhood and that none of the variances would have an adverse impact on the physical or environmental conditions in the neighborhood.
Petitioner's main contention herein is that Respondent improperly based its decision on the effect the area variances would have, not on the existing neighborhood, but on a future vision of what Respondent wishes the neighborhood to be, as set forth in the Town plan. Petitioner contends that Respondent's determination that the area variances would have an undesirable change in the neighborhood is contrary to this Court's determination in the prior Article 78 proceeding which held that Petitioner had shown in its use variance application that the character of the well-developed commercial area would not be changed by the construction of a tractor supply store; thus, Petitioner contends, Respondent's determination in this regard is barred by res judicata. Petitioner further contends that it sufficiently demonstrated that there would be no detriment to nearby properties as a result of the granting of the area variances; that there is no feasible alternative to the requested variances; that the variances are not substantial; and that the hardship for which the variances are sought were not self-created.
Respondent contends that it appropriately conducted the statutory balancing test in reviewing Petitioner's applications and that its determination was supported by the substantial evidence in the record. Respondent contends the record demonstrates that the requested variances were all substantial; that the nature of the requested variances were self-created; and that Petitioner failed to demonstrate that it did not have any feasible alternatives. Respondent contends that it was justified in considering the impact the area variances would have on the neighborhood as envisioned by its comprehensive plan for the Town.
A. APPLICABLE LAW
Pursuant to Town Law 267-b(3), when determining whether to grant an area variance, a zoning board of appeals must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted. Matter of Pecoraro v. Board of Appeals of Town of Hempstead , 2 NY3d 608 (2004); Mastter of Ifrah v. Utschig, 98 NY2d 304 (2002); Matter of Sasso v. Osgood, 86 NY2d 374 (1995).
In making such determination the board shall also consider (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.
Town Law 267-b(3)(b).
While no one factor is dispositive, the effect on the prevailing character of the neighborhood is a highly significant consideration in evaluating an area variance application. Rice, Supplemental Practice Commentaries, McKinney's Consolidated Laws of New York, Book 61, Town Law 267-b , at p. 47 (2006).
Local zoning boards have broad discretion in determining whether to grant the requested variance and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion. Matter of Ifrah v. Utschig, 98 NY2d 304; Matter of Wilcove v. Town of Pittsford Zoning Board of Appeals, 306 AD2d 898 (4th Dept, 2003). Thus, a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence. Matter of Fuhst v. Foley, 45 NY2d 441 (1978); Matter of Ifrah v. Utschig, 98 NY2d 304; Matter of Pecoraro v. Board of Appeals of Town of Hempstead , 2 NY3d 608 . A reviewing court may not substitute its judgment for that of the zoning board ( Matter of Wilcove v. Town of Pittsford Zoning Board of Appeals, 306 AD2d 898; Matter of J.H., Jr. E.T., Sr.Wurz Realty Partnership v. Zoning Board of Appeals of Village of New York Mills, 249 AD2d 984 (4th Dept, 1998), lv den, 92 NY2d 813) even if there is substantial evidence supporting a contrary determination. Matter of DeGroote v. Town of Greece Board of Zoning Appeals, ___ AD2d ___, 2006 WL 3759456 (N.Y.A.D. 4th Dept); Homeyer v. Town of Skaneateles Zoning Board of Appeals, 302 AD2d 941 (4th Dept, 2003).
B. SPECIFIC VARIANCE APPLICATIONS
The Court first finds Petitioner's contention that res judicata precluded Respondent from considering whether the proposed area variances would have an undesirable change in the neighborhood is without merit. While the Court did previously determine that Petitioner had demonstrated that the essential character of the heavily commercial area where the property at issue is located would not be changed by the development of a tractor supply store, such a finding was within the context of a use variance application and the details of Petitioner's plans with respect to such a store were not before the Court. The Court is now being asked to make an independent ruling as to whether, inter alia, these particular area variances would create an undesirable change in the neighborhood or a detriment to nearby properties. Thus, Petitioner's application with respect to this factor will be decided on its merits.
1. Variance 2006-09 — Allowance for One Story Building
The Court finds Respondent's denial of an area variance for the development of a one-story building to be unsupported by the substantial evidence in the record. Respondent based most of its decision to deny this application on its finding that granting the area variance would have an undesirable change, not on the character of the current neighborhood, but on the character of the neighborhood as "envisioned" by the Town's comprehensive plan. Similarly, Respondent found that the area variance would be a detriment, not to the current properties surrounding Respondent's parcel, all of which are commercial in nature, but on future properties the Town hopes will be developed in its newly created district.
While the work the Town has put into its plan is commendable, denying area variances based upon what a municipality hopes the neighborhood will be like in some distant future is an impermissible restriction on the use of property not intended by the applicable statute and is contrary to case law. Courts have consistently placed great reliance on the effect that the granting of an area variance would have on the character of the neighborhood, and the analysis has always been to determine whether the plan sought to be implemented by the area variance is out of character with the existing scheme of development. Rice, Supplemental Practice Commentaries, McKinney's Consolidated Laws of New York, Book 61, Town Law 267-b , p. 57 (2006).
The record herein demonstrates that the subject parcel is currently located in a heavily commercial area. The record further demonstrates that, although Petitioner's plans include the development of a one-story structure, the outside of the building creates a clear impression of a two-story building, thus making the building consistent with the immediate area. As such, there was no evidence in the record that the granting of the area variance to allow Petitioner to develop this one-story building would have an undesirable effect on the character of the current neighborhood, that it would be any detriment to the existing properties nearby, or that the impact to the surrounding community would be anything but minimal. Matter of Sasso v. Osgood, 86 NY2d 374; Matter of Children's Hospital of Buffalo v. Zoning Board of Appeals of City of Buffalo, 181 AD2d 1056 (4th Dept, 1992); Matter of Crystal Pond Homes, Inc., v. Prior, 305 AD2d 595 (2nd Dept, 2003); Matter of Easy Home Program v. Trotta, 276 AD2d 553 (2nd Dept, 2000); Matter of Lim-Kim v. Zoning Board of Appeals of Village of Irvington, 185 AD2d 346 (2nd Dept, 1992); cf, Matter of Ifrah v. Utschig, 98 NY2d 304; Matter of Bivona v. Town of Plattekill Zoning Board of Appeals, 268 AD2d 877 (3rd Dept, 2000).
The Court also finds Respondent's finding that Petitioner had "failed to make clear what benefit was being pursued by the applicant by this variance" to be unsupported by the substantial evidence in the record. The testimony presented by Petitioner to Respondent clearly demonstrated that, due to the heavy equipment that was to be sold by the tractor supply store, the construction of a functional second floor was both impracticable and cost prohibitive, especially when considering Respondent's partial granting of an area variance to allow for a higher first floor.
The deficiency in Respondent's analysis of this factor is highlighted by the repeated references in the record that Respondent believed its obligation was to review these area variances only for some general retail establishment, rather than the tractor supply store that had always been proposed by Petitioner. For example, comments from Respondent's members at the June 27, 2006 hearing included:
"I am not sure that we should be addressing specifically what Tractor Supply needs or doesn't need because I don't believe that was part of what we were required to do. We were required to examine the opportunity for a commercial business, not specifically a Tractor Supply store" [Respondent's Ex. H, p. 84];
"the Judge required a retail use to be allowed, not this specific retail" [Respondent's Ex. H, p. 27]; and
"you can put a pet food store in there for all I know, there is nothing here that says you are going to put a tractor supply store in according to the variances you are going through, it could be anything." [Respondent's Ex. H, p. 57].
Given that the plans before Respondent from the very beginning of this process, including the application for a use variance that was before this Court, was for the development of a tractor supply store, Respondent's position during the hearing that its review of the area variance applications was to be for anything other than a tractor supply store is disingenuous at best and tainted many of Respondent's findings, especially with respect to whether Petitioner could construct a tractor supply store with a functional second floor.
The Court also finds that Respondent's determination that the variance sought was substantial is unsupported by the record as a whole. Respondent found that the variance was substantial based only on the fact that Petitioner was seeking one floor where two floors are required. Looking at the variance request in such a vacuum is not an adequate indicator of the substantiality of Petitioner's application. Substantiality cannot be judged in the abstract; rather, the totality of relevant circumstances must be evaluated in determining whether the variance sought is, in actuality, a substantial one. Aydelott v. Town of Bedford Zoning Board of Appeals, 6/25/03 N.Y.L.J. 21 (col. 4) (Supreme Court, Westchester Co., 2003). When reviewing the application in the context of the overall impact it would have on the neighborhood, it is clear that the variance request is not substantial, especially when considering that the structure will have the outside appearance of a two-story building. Aydelott v. Town of Bedford Zoning Board of Appeals, 6/25/03, N.Y.L.J. 21 (col. 4); Cortland LLC v. Zoning Board of Appeals, Village of Roslyn Estates, 8/13/03 N.Y.L.J. 24 (col. 1) (Supreme Court, Nassau Co., 2003).
As to whether the alleged hardship to Petitioner was self-created, the Court notes that it previously held that because Petitioner did not knowingly acquire the property at issue for a prohibited use, it could not be said that Petitioner's hardship was self-imposed for purposes of its application for a use variance. The analysis to be employed in considering this area variance, however, is slightly different.
Hardship is self-created, for zoning purposes, where the applicant for a variance acquired the property subject to the restrictions from which he or she seeks relief. Matter of Lim-Kim v. Zoning Board of Appeals of Village of Irvington, 185 AD2d 346. In the instant case, while Petitioner purchased the property subject to the restrictions prior to the creation of the B2 District, it developed plans for the construction of the tractor supply store with full knowledge of the applicable Town code. It, therefore, cannot be said that Respondent abused its discretion in finding that Petitioner's hardship was self-created. Nevertheless, the applicable statute expressly states that the fact that Petitioner's difficulty was, arguably, self-created does not preclude the granting of an area variance. Town Law 267-b(3)(b)(5); Matter of Sasso v. Osgood, 86 NY2d 374; Matter of Naumann v. Zoning Board of Appeals of Town of Carmel, 161 AD2d 714 (2nd Dept, 1990), lv den, 77 NY2d 804.
Finally, the Court finds any concerns raised by Respondent that granting this area variance would restrict future use of the property (because of the possibility that the tractor supply store would go out business and vacate the premises) to be unjustified. There was no evidence before Respondent that called into question the financial viability of the tractor supply store and any part of Respondent's resolutions denying the area variance on this ground is wholly unsupported by the substantial evidence in the record.
2. Variance 2006-10 — Allowance for a First Story Height of 22 Feet, 8 Inches
Many of the deficiencies in Respondent's analysis of this variance are similar to those set forth above. Based upon the nature of the current neighborhood, it cannot be said that an allowance of a greater first floor height would have an undesirable effect on the neighborhood nor a detrimental effect on nearby properties. In addition, although increasing the height of the first floor by eight feet may appear, in and of itself to be substantial, given the outward appearance of the building in this commercial area, and, especially, with the Court's determination that no second floor is required, the impact of this area variance is minimal.
The record is less than clear as to the need for the specific height requested by Petitioner. By granting a variance to allow a first floor height, from floor to floor, of 20 feet, Respondent clearly found that some accommodations would have to be made to allow the building to store some of the equipment to be sold by the tractor supply store. However, Petitioner gave conflicting testimony at the hearing as to the exact height needed. At first, counsel for Petitioner stated, "We weren't exactly sure [of the height needed] because we haven't seen the full material, so we asked for 22, 8 so we knew we had enough, that goes to the roof." [Respondent's Ex. H, p. 33]. Counsel and a representative of Petitioner then stated that Petitioner "would accept less" and "We could live with 20 [feet] . . . Floor to floor". [Respondent's Ex. H, pp. 77, 80-81]. A few minutes later, Petitioner's representative stated, "I don't think that 20 fits our request." [Respondent's Ex. H, p. 89].
Further complicating the issue of the height variance is the Court's determination, as set forth above, that the area variance to allow for a one-story building should have been granted. Obviously, with a one-story building, a variance to allow the first floor of the building to be 20 feet from floor to floor would have to be modified to account for a first floor that will now go from floor to ceiling.
Therefore, the issue of the exact height of the first floor will have to be remanded to Respondent for a more precise determination, given the Court's finding with respect to the first variance. In making such a determination, Respondent shall be limited by its previous finding that an area variance of at least 20 feet is appropriate and it shall rule, based upon clearer evidence presented by Petitioner, as to height to be allowed on the first floor, from floor to ceiling.
3. Variance 2006-12 — Allowance for 0% Glass Surface on Second Floor
The Court finds the denial of Petitioner's application of this area variance to be supported by the substantial evidence in the record. Although Respondent improperly analyzed the effect the variance would have on the neighborhood by looking at the character of the neighborhood as envisioned by the comprehensive plan and ruled that the variance would not be a detriment to nearby properties, Petitioner provided scant evidence of the need for the variance. The testimony at the hearing suggested that the two main reasons set forth by Petitioner for this variance were that Petitioner believed the window requirement would render the building "unattractive" [Respondent's Ex. H, p. 22] and that windows on the second floor would create a "branding issue" for Tractor Supply. [Respondent's Ex. H, pp. 22, 23, 25].
The Court is, again, troubled by Respondent's insistence that the prior Decision and Order directing the issuance of a use variance was not for the development of a tractor supply store, but was for any retail establishment. While such inappropriate reasoning does call into question some of Respondent's findings with respect to this variance, the Court is compelled to find, as set forth below, that Respondent's ultimate determination should be upheld.
This "branding issue" was never fully explained in the record and it was certainly within the province of Respondent to make its own determination as to the aesthetic impact of a variance that would eliminate all windows along the second floor of one side of the building. Matter of Rosewood Home Builders, Inc., v. Zoning Board of Appeals of Town of Waterford , 17 AD3d 962 (3rd Dept, 2005); Matter of Isle Harbor Homeowners v. Town of Bolton Zoning Board of Appeals , 16 AD3d 830 (3rd Dept, 2005). In addition, contrary to the Court's findings with respect to the first two variances, a total elimination of the window requirement on the second floor fronting Silverback Lane is substantial and, since the decision to forego any windows along that street was one made by Petitioner with full knowledge of the Town Code requirements, the Court cannot say that Respondent's determination that this hardship was self-created was against the weight of the substantial evidence in the record. Matter of Katke v. Incorporated Village of Freeport, 200 AD2d 746 (2nd Dept, 1994).
Although the Court disagrees with the finding of one Respondent member that "anything versus zero is substantial". [Respondent's Ex. H, p. 116].
Accordingly, it is hereby
ORDERED, that Petitioner's application for an Order reversing, annulling and setting aside Respondent's resolution denying Petitioner's application for area variance 2006-09 be and the same hereby is granted and that Respondent is directed to grant an area variance to allow Petitioner to construct a single story building without a functional second floor being required; and it is further
ORDERED, that Petitioner's application for an Order reversing, annulling and setting aside Respondent's resolution denying Petitioner's application for area variance 2006-10 be and the same hereby is granted, and this matter shall be remanded to Respondent for a determination as to the exact height to be allowed for the first floor, given the Court's determination as to area variance 2006-09 and consistent with the instructions set forth herein; and it is further
ORDERED, that Petitioner's application for an Order reversing, annulling and setting aside Respondent's resolution denying Petitioner's application for area variance 2006-12 be and the same hereby is denied.