Opinion
11597-05.
Decided November 29, 2005.
Petitioner Alan Davidson moves this Court for an Order pursuant to CPLR Article 78, annulling a determination of respondent Zoning Board of Appeals of the Incorporated Village of Oyster Bay Cove (hereinafter, "ZBA"), dated March 29, 2005, whereby the ZBA granted the application of respondents James and Isabella Horvath (hereinafter, collectively "HORVATH") to extend the time limits to obtain necessary permits set forth in a decision of the ZBA granting certain variances, dated June 29, 2004.
Respondents ZBA and HORVATH each cross move this Court for an Order pursuant to CPLR Sections 3211(a) and 7804(f), dismissing petitioner's motion on the grounds that petitioner lacks standing to maintain the instant proceeding, and that petitioner's motion fails to state a cause of action upon which relief may be granted.
Now, upon reading the above referenced motions, all papers received in opposition, and after examination of all relevant exhibits annexed thereto, the Court makes the following determinations.
In order to maintain an action to enjoin or annul a zoning determination, a plaintiff must first establish that he has standing to do so by demonstrating damages were or are likely to be sustained by the action of the zoning entity, and by demonstrating that his interest is within the zone of interest protected by the zoning laws. It is well settled that standing principles, which are matters of policy, should not be heavy-handed, and that in matters involving zoning, "it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules" ( Zupa v. Paradise Point Ass'n, Inc., 2005 NY Slip Op 8111, See also, Williams v. Hertzwig, 251 AD2d 655; Matter of Parisella v. Town of Fishkill, 209 AD2d 850). When the premises that are the subject of the zoning question are in close proximity to a party's property, that proximity gives rise to an inference of injury sufficient to enable that nearby party to challenge an administrative determination without proof of actual injury (See, Matter of Parisella, supra; Matter of Sun-Brite Car Wash v. Zoning Board of Appeals, 69 NY2d 406). Finally, a close neighbor must also demonstrate that his interest is within the zone of interest protected by the zoning laws, which are enacted to protect the health, safety and welfare of the community (See, Matter of Sun-Brite Car Wash, supra, at 412).
Although the proximity of petitioner's property to the Horvath property is not specifically set forth in petitioner's moving papers, respondent ZBA's motion concedes that the Davidson and Horvath properties are adjoining. (See, ZBA motion at p. 5, point 19). Further, it is apparent from the totality of the moving papers that the community in question is of an intimate and residential nature, making it equally apparent that petitioner's interest in the health, safety and welfare, be it physical and/or financial, of a community of which he is a member, falls clearly within the zone of interest protected by the zoning laws. Accordingly, the Court finds that petitioner does, in fact, meet the threshold standing requirements set forth herein, and respondents ZBA and HORVATH's motions to dismiss on lack of standing grounds is denied.
Several relevant matters are not in dispute. First, by resolution dated October 26, 2004, the ZBA adopted the following rule of procedure:
"Amendments to Decisions. An application to amend a decision of the Board of Appeals with respect to any substantive condition or provision of the decision, or to extend or enlarge the period of time in which the decision requires any act to be done and which is filed after the time to take the act has expired, shall require a public hearing in the same manner as an original application. An application to amend a decision with respect to any non-substantive condition or provision of the decision, or to extend the period of time in which the decision requires any act to be done which is filed prior to the expiration of the time to act, may be made by letter or other written application, signed by the applicant, and may be determined by the Board without a public hearing, unless a majority of the Board concludes that there has or may have been a change in circumstances since the prior decision which warrants a public hearing.
Second, the original variance was granted by the ZBA to respondent HORVATH on June 29, 2004, after published, posted and mailed notice and a public hearing. The variance was granted subject to various conditions, including the condition that HORVATH obtain all required permits for the proposed construction within 120 days after filing of the decision with the Village Clerk. That decision was filed with the Village Clerk on July 23, 2004. (See, Respondent ZBA's motion, exhibit B). Third, the necessary permits were not obtained within the requisite 120 day period, in this case by Saturday, November 20, 2004, and written application by HORVATH to extend the time limits was not received by the Village until Wednesday, November 24, 2004, 124 days after filing of the decision with the Village Clerk.
Finally, it is undisputed that when the issue of the requested extension arose at a ZBA meeting on March 29, 2005, the Horvath issue had not been publicly scheduled, had not been posted at Village Hall, was not noticed to those neighbors originally notified of the initial hearing date and was not published in the Village paper.
The ZBA now argues that they have the power to promulgate zoning rules designed to serve the public interest by notifying members of the community of public hearings, thereby giving them a voice in the health, safety and welfare of their own community, while at the same time having the power to dispense with those public resolutions at their whim, even when the resolution specifically sets forth those instances when the public notice requirement may be dispensed with. In effect, the ZBA is telling the community in general, and petitioner specifically, that these are the rules for all the world to see, unless and until they resolve to change them whenever they feel like doing so. The Court finds such an argument to be the very essence of the meaning of an action which is arbitrary, capricious and unreasonable. The ZBA sets forth no reasonable argument, and this Court is at a loss to divine one, for why they extended the 120 day requirement without first scheduling a public hearing as required by their own resolution of October 2004. Further, the Court finds unpersuasive ZBA's argument that petitioners presence at the March 29, 2005, meeting where the Board took up the Horvath extension request negated any prejudice petitioner may have suffered due to their failure to comply with their October 2004 "public hearing" resolution. Had the issue been calendared for a public hearing on notice to the community, as it should have been, petitioner could have mobilized community support, and/or engaged other strategies in an effort to convince the ZBA to reconsider and reject the pending request for extension. The ZBA's sua sponte consideration of the request without adherence to the October 2004 resolution denied the petitioner that opportunity, and provides further evidence of the arbitrary, capricious and unreasonable nature of their actions.
It is well settled in this State that local zoning boards have broad discretion in considering applications for area variances, and the judicial function in reviewing such decisions is a limited one (See, Westervelt v. Zoning Board of the Town of Woodbury, 7 AD3d 632, Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608). A reviewing court cannot merely substitute its judgment for that of the zoning board (See, Matter of Pecoraro, supra). However, where the record reveals that the board acted arbitrarily, without a rational basis, and without substantial evidence in support of its decision, Courts may set aside a zoning board determination (See, Ifrah v. Utschig, 98 NY2d 304).
In accordance with those guiding principles, this Court finds that the action of the ZBA, in extending the 120 day time period included as a condition of the issuance of the original variance without a public hearing, was arbitrary and capricious, and further, not supported by substantial evidence. Accordingly, petitioner's motion to annul that determination is granted. Further, respondents ZBA's and HORVATH's cross motions are hereby denied in their entirety. The ZBA is hereby directed to schedule the HORVATH's November 2004 written request for an extension, in accordance with their resolution of October 26, 2004, and in accordance with their standard procedure for original applications, at their earliest convenience.
The foregoing constitutes the opinion, decision and order of the Court.