Opinion
2016–05090 Index No. 9768/15
08-22-2018
In the Matter of Bartolomeo ABBATIELLO, appellant, v. TOWN OF NORTH HEMPSTEAD BOARD OF ZONING APPEALS, respondent.
Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for appellant. Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Neera I. Roopsingh of counsel), for respondent.
Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for appellant.
Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Neera I. Roopsingh of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Town of North Hempstead Board of Zoning Appeals dated August 12, 2015, denying a use variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Thomas Feinman, J.), dated February 8, 2016. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination of the Town of North Hempstead Board of Zoning Appeals dated August 12, 2015, is annulled, and the matter is remitted to the Town of North Hempstead for the issuance of the requested use variance.
The petitioner is the owner of real property located in the Town of North Hempstead. The petitioner's house was constructed in 1920, on a 5,000 square-foot lot, and is a two-family residence. It is located in what later became a business district. Prior to amendments to the Town Zoning Code in 1945, two-family residences were permitted on all 5,000 square-foot lots in the district. Current zoning laws, however, prohibit all residential use in that district.
When the petitioner purchased the property in 1977, he believed that the house was a legal two-family residence. Since he purchased the property, the petitioner has been renting out the two units, and he has obtained various permits from the Town allowing him to do so. In October 2013, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling. The Town rejected the application, and the petitioner appealed to the respondent, Town of North Hempstead Board of Zoning Appeals (hereinafter the Board). Following a hearing, the Board denied the application. The petitioner commenced this proceeding to review the Board's determination. In the judgment appealed from, the Supreme Court denied the petition. The petitioner appeals.
"A use of property that existed before the enactment of a zoning restriction that prohibits the use is a legal nonconforming use" ( Matter of Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton, 137 A.D.3d 1289, 1291–1292, 28 N.Y.S.3d 405[internal quotation marks omitted]; see Matter of Toys R Us v. Silva, 89 N.Y.2d 411, 417, 654 N.Y.S.2d 100, 676 N.E.2d 862 ). "A nonconforming use may not be established through the existing use of land that was commenced or maintained in violation of a prior zoning ordinance" ( Matter of Tavano v. Zoning Bd. of Appeals of the Town of Patterson, 149 A.D.3d 755, 756, 51 N.Y.S.3d 175 ; see Matter of Rudolf Steiner Fellowship Found. v. De Luccia, 90 N.Y.2d 453, 458, 662 N.Y.S.2d 411, 685 N.E.2d 192 ; Matter of Marino v. Town of Smithtown, 61 A.D.3d 761, 762, 877 N.Y.S.2d 183 ). "Thus, to establish a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming" ( Matter of Tavano v. Zoning Bd. of Appeals of the Town of Patterson, 149 A.D.3d at 756, 51 N.Y.S.3d 175 ; see Matter of Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton, 137 A.D.3d at 1293, 28 N.Y.S.3d 405 ; Matter of Keller v. Haller, 226 A.D.2d 639, 640, 641 N.Y.S.2d 380 ).
Local zoning boards have broad discretion in considering an application for a variance, and judicial review is limited to ascertaining whether the determination of the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 771, 809 N.Y.S.2d 98 ). A determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis (see Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 772, 809 N.Y.S.2d 98 ). Further, "[c]onclusory findings of fact are insufficient to support a determination by a zoning board of appeals, which is required to clearly set forth ‘how’ and ‘in what manner’ the granting of a variance would be improper" ( Matter of Gabrielle Realty Corp. v. Board of Zoning Appeals of Vil. of Freeport, 24 A.D.3d 550, 550, 808 N.Y.S.2d 258, quoting Matter of Farrell v. Board of Zoning & Appeals of Inc. Vil. of Old Westbury, 77 A.D.2d 875, 876, 431 N.Y.S.2d 52 ).
Contrary to the Board's conclusion, the petitioner presented evidence, including affidavits from neighbors and others who had lived in the community for many years, which was sufficient to establish that the property was a legal two-family residence prior to the 1945 amendments to the Town Zoning Code. By contrast, there was no evidence presented at the hearing to demonstrate that the property had been converted into a two-family dwelling after the 1945 amendments. Accordingly, the record does not contain evidence to support the rationality of the Board's determination denying the proposed use variance. Since the Board's determination was irrational, and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the Board's determination, and remitted the matter to the Town for the issuance of the requested use variance (see Matter of Marina's Edge Owner's Corp. v. City of New Rochelle Zoning Bd. of Appeals, 129 A.D.3d 841, 844, 11 N.Y.S.3d 232 ; Montgomery Group v. Town of Montgomery, 4 A.D.3d 458, 460, 772 N.Y.S.2d 94 ).
In light of our determination, we need not address the petitioner's remaining contention.
DILLON, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.