Opinion
9846/08.
Decided July 7, 2008.
Robert M. Kelly, New York, NY, Attorney for Petitioner.
Ronald G. Crispi, Esq., Cerussi Spring, White Plains, NY, Attorney for Respondent.
This CPLR Article 78 proceeding challenges the lawfulness of a resolution adopted by the Eastchester Planning Board ("the Planning Board") on February 27, 2008, which granted a special permit to a local developer seeking to build ten attached townhouse condominium units on Maple Street in the town of Eastchester. The developer, Jalo Realty LLC ("Jalo"), filed an application with the Planning Board for construction of the town houses on three tax lots that it owns. The three lots are adjacent to one another, but are situated in different zoning districts. One lot is located in a retail business zoning district; another is divided by a zoning boundary with the majority of the lot within a retail business zoning district, and the remainder in a single family residence zoning district. The third lot is located in a single family zoning district.
The Zoning Law of the Town of Eastchester permits multi-family dwellings in retail business districts, but not in single family residence zoning districts. Section 7.A of Eastchester's Zoning Law provides that where the boundary of a district divides a lot, the Planning Board may, by Special Permit, permit the extension of any lawful conforming use permitted on that portion of the lot lying in the less restricted district. Thus, the special permit granted to Jalo was issued contingent upon Jalo's demolition of the homes existing on the lots, and the merger of the three lots into one lot to reflect the ownership of the re-developed property in condominium or other form of single-lot ownership. The special permit allows Jalo to "extend" the retail business district into the one family residence district zone, thus permitting construction of the townhouses in the property presently consisting of three lots.
Petitioners, Eastchester residents who own property in close proximity to the subject property, seek an order from this Court annulling and vacating the Planning Board's resolution. Petitioners contend that the Planning Board was not authorized to grant a special permit covering three separate lots because Section 7.A. of the Zoning Law provides that a Planning Board may extend a zoning district boundary where a boundary divides a single lot, but not across more than one lot. Thus, Petitioners argue that the Planning Board's resolution is unlawful, arbitrary and capricious. For the reasons set forth below, this Court disagrees and dismisses the petition.
Background
Jalo began its efforts to develop the Maple Street lots over five years ago. Initially, Jalo submitted an application to the Town of Eastchester requesting a building permit for its townhouse condominium project on the lots it now owns: Lot 21A (located at 87 Maple Street), Lot 21B (located at 85 maple Street) and Lot 21C (located at 83 Maple Street). As noted above, each of these lots, while adjoining, is situated in a different zoning district. Lot 21A is situated in a retail business zoning district. Lot 21B is divided by a zoning boundary line, with the majority of the lot situated in a retail business zoning district, and the remainder in a single family residence zoning district. Lot 21C is located in a single family zoning district.
On January 12, 2004, the Eastchester Building Inspector denied Jalo's request for a building permit on the grounds that Lot 21C could not be used for a multi-family development without first obtaining a use variance from the Eastchester Zoning Board of Appeals ("ZBA"). It does not appear from the record that Jalo proceeded with the application. Instead, in early 2005, Jalo requested an "interpretation" of the zoning law from the ZBA. Jalo contended that the zoning district boundary dividing Lot 21B into two different districts actually fell on the boundary line separating Lot 21B and Lot 21C. Although Jalo was not the owner of all three lots at the time of its application, it also argued that the lots "may actually still be considered to be one lot." Jalo did not indicate whether the tax lots had been formally subdivided, nor did it provide any historical deeds indicating that the three tax lots had ever been held in common ownership. Thus, in a memorandum to the ZBA from the Town Planner dated June 14, 2005, the Planning Department stated that "the application before the ZBA clearly consists of three lots, so the hypothetical scenario is irrelevant." The Town Planner also stated: "If the applicant were to demolish all three buildings, it is the Town's position that lots 21B and 21C could not be merged `as-of-right' by the applicant, since a zoning district boundary divides the lots."
By resolution dated June 14, 2005, the ZBA also found that the zoning boundary line falls ten feet from the property line of Lot 21B, thus dividing that lot into two zoning districts. The ZBA also determined that "these are three separate lots. Each lot is separately developed; each has its own address and tax map designation; and, each is billed separately for the taxes." Thus, the Board found that Jalo "cannot go to the Planning Board with the contention that this is one lot and they can extend the boundary line," reasoning that Section 7.A gives the Planning Board the authority to grant a special permit to allow for the extension of less restrictive uses into a more restrictive district within one lot, but does not allow for such an extension into an adjacent lot. To accomplish its goal, Jalo would have to apply to the Town Board to re-zone Lot 21 C, or apply to the ZBA for a use variance to extend construction of its condominium onto Lot 21C.
Instead of doing so, on or about September 6, 2006, Jalo submitted another application to the Eastchester Planning Board requesting another determination of the location of the zoning boundary line between Lots 21B and 21C. After referring the matter to the ZBA, the ZBA determined that the application was a request for rehearing pursuant to Town Law 267-a(12), which required a unanimous vote of all members present in order to reverse, modify or annul the prior determination. The ZBA concluded, by a vote of 4 to 1, that the boundary line within Lot 21B did in fact coincide with the boundary line between Lot 21B and 21C. Since the vote was not unanimous, however, the resolution had no practical effect.
In June 2007, Jalo submitted a third application to the Planning Board, this time requesting a special permit pursuant to Section 7.A of the Eastchester Zoning Law. Having acquired title to the third lot, Jalo stated that as a condition of obtaining the special permit, it would demolish the three houses on the lots and merge them into a single lot to reflect the ownership of the re-developed property in condominium form. Jalo contended that the three lots are separate tax lots, but not subdivision lots, and therefore the intended merger would not constitute a subdivision or re-subdivision as those terms are defined and used in Section 276(4)(a) of the State Town law and Section 9(c) of the Town of Eastchester Zoning Law. In support of its application, Jalo submitted a title report indicating that three lots were created by conveyance from a common grantor, who owned all three as one property in the 1920s, not by any subdivision plat.
Section 274-a of the Town Law provides towns with the option of delegating to their planning boards the power to approve site plans and special permits.
Lot 21A is currently improved with a two-family residence, and Lots 21B and 21C are each improved with a single-family residence. Jalo reduced the scope of its original project and redesigned various aspects of the project. Jalo's first application requested approval for fourteen townhouse units; by the time of its third application, Jalo was requesting authorization to build ten townhouses.
By resolution dated February 27, 2008, the Planning Board approved Jalo's application for the special permit, contingent upon the merger of the three tax lots into a single tax lot. The resolution determined that while the three lots consist of separate tax lots, they are not subdivision lots and therefore the intended merger of these lots would not constitute a subdivision or re-subdivision.
Discussion
Petitioners argue that the Planning Board's resolution is unlawful, arbitrary and capricious and contrary to the evidence in the record because it disregarded the fact the Lot 21A, Lot 21B and Lot 21C are three separate lots, as previously determined by the ZBA. Petitioners contend that the Planning Board had no authority to grant a special permit, since the purpose of Section 7.A is to extend a zoning district within a lot, not to extend a zoning district to an adjacent lot. They also argue that the Planning Board took an inconsistent position with the ZBA concerning the same property, since the ZBA determined in a prior proceeding that Jalo does not have the right under Section 7.A of the Zoning Law to apply for a special permit.
The Court finds that petitioners have failed to meet their burden of establishing that the Planning Board's resolution was arbitrary and capricious, or irrational. The courts define arbitrary and capricious as being "without sound basis in reason and . . . without regard to the facts." Pell v. Board of Education, 34 NY2d 222, 356 NYS2d 833 (1974) ("a court cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious"). With respect to zoning matters, a board's determination must be upheld unless it "shocks the judicial conscience" and constitutes an abuse of discretion as a matter of law. Featherstone v. Franco, 95 NY2d 550, 610, 720 NYS2d 93, 96 (2000). It is well-settled that a reviewing court in an Aritcle 78 proceeding may not substitute its judgment for that of a local planning board unless the board's determination was arbitrary and capricious, illegal, or an abuse of discretion. Fuhst v. Foley, 45 NY2d 441, 410 NYS2d 56 (1978). Local zoning board determinations are upheld if they are rational, even if the reviewing court would have reached a different result based upon the evidence in the record. P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals, 98 NY2d 683, 746 NYS2d 440 (2002). Simply put, the courts may not substitute their judgment for that of the planning boards. Toys "R" Us v. Silva, 89 NY2d 411, 654 NYS2d 100 (1996) (court properly deferred to the board's determination since it had a rational basis and supported by substantial evidence).
A review of the entire record reveals that the Planning Board's determination in granting the special permit was not in violation of any lawful procedure or affected by an error of law, or arbitrary and capricious, or an abuse of discretion. The Planning Board based its determination on a review of all the evidence presented to it, including the proposed merger of the three tax lots in question, and rationally determined that if and when the lots are merged, Section 7.A. of Eastchester's Zoning Law would apply to extend the retail business district boundary. Section 7.A. provides that:
Where the boundary of a District divides a lot, the Planning Board may, by special permit in accordance with the requirements of [the zoning law], permit the extension of any lawful conforming use permitted on that portion of the lot lying in the less restricted district, for a distance not to exceed 75 feet measured at right angles form such district boundary provided all other requirements of the more restricted district are met.
Thus, the Planning Board rationally concluded that if the lots are merged, Section 7.A. would permit extension of the retail business zoning district into the single family zoning portion of the lot. Petitioners do not ask this Court to review the issue of whether the tax lots can be properly merged as a matter of law. As Petitioners state, "[t]he only relevant issue in this proceeding is whether Respondent planning board was authorized, pursuant to Section 7.A. of the Eastchester Zoning Law and Section 274-b of the Town Law, to grant a special permit." Assuming, without deciding, that the Planning Board properly concluded that the lots can be merged into one lot, the Petitioners' argument is without merit because at the time when the special permit will take effect, there will be only one lot.
Petitioners complain that the Planning Board ignored the ZBA's prior determination, but do not specifically argue that it was entitled to res judicata effect. Moreover, the reasons articulated by the Town Planner for not following the 2005 determination by the ZBA were rational. In 2007, Jalo provided more detailed information on how the subject property came to be divided into separate tax lots, including a title report, and addressed why the special permit should be made subject to Jalo's successful merger of the three lots. According to the Town Planner, the 2005 resolution was no longer applicable, since in 2007 Jalo owned the three lots in question and could merge them as of right through the tax assessor's office. Moreover, Jalo's 2007 application did not assert that the lots constituted one lot, as had been previously argued before the ZBA, but rather that they would be merged into a single lot without amending a previously filed subdivision map and that the special permit should be issued contingent upon the merger of the lots.
As a general matter, a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts may be arbitrary and capricious. In re Lafayette Storage Moving Corp., 77 NY2d 823, 566 NYS2d 198 (1991); Matter of Field Delivery Serv. (Roberts), 66 NY2d 516, 516-517, 498 NYS2d 111 (1985) ("absent an explanation by the agency, an administrative agency decision which, on essentially the same facts as underlaid a prior agency determination, reaches a conclusion contrary to the prior determination is arbitrary and capricious"); Mobil Oil Corp. v. Vill. of Mamaroneck Bd. of Appeals, 293 AD2d 679, 740 NYS2d 456, (2d Dep't 2002); Frisenda v. Zoning Bd. of Appeals, 215 AD2d 479, 626 NYS2d 263 (2d Dep't 1995; Exxon Corp. v. Board of Standards Appeals, 128 AD2d 289, 515 NYS2d 768 (1st Dep't 1987), lv. den. 70 NY2d 614, 524 NYS2d 676 (1988)("an administrative agency may not rule or act in such a way as to result in inconsistent treatment of similarly situated parties").
Administrative agencies, like courts, are of course free to correct prior erroneous interpretations of law or to depart from previously stated policies, although they must state their reasons for doing so. Where a local board "provides a rational explanation for reaching a different result on similar facts, the determination will not be viewed as either arbitrary or capricious." Matter of Berk v. McMahon , 29 AD3d 902 , 903,814 NYS2d 753 (2d Dep't 2006); also see Matter of Nozzleman 60, LLC v. Village of Cold Spring Zoning Bd. of Appeals , 34 AD3d 682 , 683, 825 NYS2d 107 (2d Dep't 2006). A local board "may refuse to duplicate previous error; it may change its views as to what is for the best interests of the [Town]; it may give weight to slight differences which are not easily discernible." Matter of Cowan v. Kern, 41 NY2d 591, 594-595, 294 NYS2d 579 (1977) quoting Larkin Co. v. Schwab, 242 NY 330, 336-337 (1926).
Here, it was within the discretion of the Planning Board to determine if the modifications to the application submitted by Jalo presented changed facts or circumstances. The Planning Board is statutorily authorized to issue special permits. Section 274-a of the Town Law provides towns with the option of delegating to their planning boards the power to approve site plans and special permits. In fact, Section 12 (B)(n) of Eastchester's Zoning Law provides that the Planning Board shall be the exclusive approving agency for special permit uses. Moreover, the ZBA and Planning Board are separate entities which are not comprised of the same individuals. Thus, unlike cases where the same agency did not follow its own precedent, and ruled differently on the same issue, the ZBA and Planning Board are separate agencies. Petitioners have cited no case law indicating that the separate entities here do not have the power to reach a different result where new facts are brought to the attention of the approving agency. In any event, this Court finds that the reasons articulated by Respondent are sufficient to explain reaching a different result from the ZBA.
As noted above, Petitioners do not ask this Court to review the issue of whether the tax lots can be properly merged. Nor do they question the Planning Board's authority to attach conditions to its approval of Jalo's plan. Planning boards are expressly authorized by statute to attach conditions to the issuance of special permits. Specifically, Town Law § 274-b(4) provides that the board has the authority "to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit." Eastchester's Zoning Law contains a similar provision. Indeed, planning and zoning boards regularly impose conditions and restrictions when granting variances, zoning changes, and special permits. See generally St. Onge v. Donovan, 71 NY2d 507, 527 NYS2d 721 (1988); Dexter v. Town Bd. of Gates, 36 NY2d 102, 365 NYS2d 506 (1975); also see Matter of Zupa v. Zoning Bd. of Appeals of Southold , 31 AD3d 570 817 NYS2d 672 (2d Dep't 2006) (Zoning Board of Appeals approval of application for area variance to permit construction of single-family home on condition that no building permit be issued until a nonconforming marina use is discontinued or a variance is granted permitting the marina use in conjunction with the residential use). Thus, this Court cannot deem arbitrary or capricious the Planning Board's decision to issue a special permit to Jalo, subject to the express condition that the three tax lots be merged into a single tax lot before the special permit would become effective.
Finally, Petitioners also argue that the Planning Board's decision to grant the special permit violated Section 274-b of the Town Law. That section defines a "special permit" as "an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met." Section 274-b(2) provides that a "town board may, as part of a zoning ordinance or local law adopted pursuant to this article or other enabling law, authorize the planning board or such other administrative body that it shall designate to grant special use permits as set forth in such zoning ordinance or local law." Petitioners advance essentially the same arguments here as they do in support of their argument that the Planning Board had no authority to issue the special permit under Section 7.A. For the same reasons discussed above, the Court finds that the Planning Board's resolution granting Jalo a special permit were not contrary to section 274-b of the Town Law.
Because the Planning Board's determination to grant a special permit to Jalo on the condition that the three lots be merged is neither arbitrary nor capricious nor in violation of law, and there existed a rational basis for the determination, the petition must be denied and this proceeding dismissed. Accordingly, it is hereby
FN3. In view of this finding, the Court does not reach Respondent's remaining arguments in support of dismissing the proceeding.
ADJUDGED that the petition is denied, without costs and disbursements, and the proceeding dismissed.
The foregoing constitutes the opinion, decision, order and judgment of this Court.