Opinion
06-10960.
Decided January 9, 2007.
Nora Lucas and Anthony Weiner, Petitioners Pro Se, Mamaroneck, New York 10543.
Jeffrey Falk and Martha McCarthy-Falk, Petitioners Pro Se, Mamaroneck, New York 10543.
David S. Kidder and Johanna Zeilstra, Petitioners Pro Se, Mamaroneck, New York 10543.
Rob Balin and Elizabeth Clain, Petitioners Pro Se, Mamaroneck, New York 10543.
Stuart Tiekert, Petitioner Pro Se, Mamaroneck, New York 10543.
Joseph C. Messina, Esq., Law Offices of Joseph C. Messina, Attorney for the ZBA, Mamaroneck, New York 10543.
Paul J. Noto, Esq., Attorney for Benmar, Mamaroneck, New York 10543.
Upon the foregoing papers, it is ordered and adjudged that the petition is granted and the ZBA`s determination dated May 9, 2006 is annulled, and it is further ordered that the ZBA`s motion to strike material dehors the record is granted to the extent set forth herein.
The Court has considered some of the papers submitted by petitioners in sur-reply because of the new factual arguments raised by Benmar in its reply affidavit suggesting that a letter submitted during the ZBA proceedings had been manufactured by petitioners ( see Allstate Ins. Co. v Raguzin, 12 AD3d 468 [2004]; 269 Fulton Corp. v H.A.B. Realty Assoc., 179 AD2d 752 [1992], lv denied 80 NY2d 756 [1992]). However, as set forth more fully herein, because the Court has decided to disregard certain factual assertions that were dehors the record of the ZBA proceedings, those sur-reply papers that further address those matters have not been taken into consideration in the Court`s determination of this Article 78 proceeding.
FACTUAL BACKGROUND
On February 1, 2006, respondent Benmar Properties, LLC ("Benmar") purchased 601 Brook Street (the "property") from Bruce and Wilma Williams (the "Williams"). The property consists of 18,392 square feet in area (width of 188 feet fronting Brook Street and lot depths of 101.1 and 94.52 feet) and has a single family home (2,700 square feet in size) fronting Brook Street. Pursuant to the Village of Mamaroneck Zoning Code enacted in 1968 (the "Zoning Code"), the property is located in an R-5 District which requires a lot size of 5,000 square feet ( i.e., a street frontage of 50 feet and a lot depth of 100 feet). The neighborhood in which the property is located is commonly referred to as the Tompkins Farm Neighborhood because the lots were originally part of the Noah Tompkins Farm ( see letter from Nora Lucas dated February 28, 2006 at 3, Certified Record, Exhibit J). On February 14, 2006, Benmar applied for a building permit to build a second house on the property. The permit was denied because the proposed second lot was substandard insofar as it did not comply with the lot depth requirements of the district ( i.e., the proposed lot would have a lot depth of 94.52 feet whereas a lot in the R-5 District has a required lot depth of 100 feet) ( see Certified Record, Exhibit K). On February 6, 2006, Benmar applied to the ZBA for an area variance for the lot depth deficiency so that the property could be subdivided into two buildable lots. Evidently, although Benmar had been considering subdividing the property into three buildable lots in order to construct two additional houses, Benmar ultimately decided to limit its request for a variance to build only one additional house on one substandard lot ( see Transcript of 4/6/06 Hearing at 104, Certified Record, Exhibit 0).
Although the building permit denial set forth that the proposed lot had a depth of 97.44 feet, respondents have admitted that the actual lot depth on the proposed lot is 94.52 feet and the references to 97.44 feet were in error ( see ZBA Memorandum of Law at 2).
Although Benmar and petitioners were at odds over whether the property consisted of one or two lots, the ZBA`s counsel, Joseph C. Messina, Esq., advised the ZBA that the issue over whether the property should be considered one or two lots was not relevant and that the provisions of the Zoning Code governing subdivisions (Zoning Code § 342-11) controlled Benmar`s application ( i.e., the newly formed lot either had to conform to the zoning requirements or a variance was required) ( see Memorandum dated April 3, 2006 from Joseph C. Messina, Esq. to ZBA Members at 2, Certified Record, Exhibit N).
The crux of the dispute behind the instant Article 78 proceeding is that in 1991, the prior owners of the property, the Williams, had applied for area variances so that they could subdivide the property in order to construct a second house. The Williams` application was denied by the ZBA (hereinafter referred to as the "1991 Decision"). Because it is petitioners` position that there are no factual differences between the Williams` application and Benmar`s application and nothing has changed with regard to the character of the neighborhood since the Williams` application, petitioners argue that the ZBA`s decision granting Benmar`s variance request was arbitrary and capricious since it failed to follow the prior precedent established by the 1991 Decision. By contrast, respondents contend that the ZBA set forth sufficient reasons for its change in decision and properly determined that the benefit of granting the variance to Benmar outweighed any detriment to the health, safety and general welfare of the community.
In 1991, in addition to the Williams` variance application being denied at 601 Brook Street, another variance application for a subdivision of 316 Beach Avenue was also denied ( see Letter dated February 28, 2006 from Nora Lucas to ZBA at 2, Certified Record Exhibit J). Furthermore, another variance application for a subdivision of 420 Melbourne Avenue had also been denied in the late 1980`s (Letter dated April 28, 2006 from Nora Lucas to ZBA at 3, Certified Record, Exhibit J).
The Benmar application was similar to the Williams` application because it (1) sought to create an additional lot with a non-conforming lot depth of 94.52 feet rather than the required 100 feet, and (2) placed the second home on the new lot in exactly the same location as the location proposed by the Williams (Transcript of 4/6/06 Hearing at 11, Certified Record, Exhibit O). The Building Inspector had denied the Williams` application because the subdivision would cause non-compliance on the existing lot ( i.e., front-yard set back of 16.8 when 20 feet required and lot depth deficiency insofar as 100 feet is required and only 97.02 feet was proposed) and because the subdivision would cause the proposed second lot to have a lot depth deficiency (100 feet required and only 94.52 feet proposed). In denying the application in 1991, the ZBA made the following findings:
It appears that the house the Williams had proposed to be constructed on the second lot was smaller in size than the house Benmar was proposing to be constructed on the second lot.
"1. While the area has not been specifically designated as an historic district, considerable testimony was received by the neighbors regarding the historical nature of the architecture and side yard areas within the surrounding community.
2. The Board, on prior applications for similar subdivisions in this area, has rejected said subdivisions on the basis of a desire to preserve the aesthetics of the area as it presently exists.
3. The proposed subdivision would not be in keeping with the present aesthetic nature of the surrounding area.
4. Appellants have not established to the satisfaction of this Board that in the instant matter, practical difficulty exists.
5. The physical conditions applying to the premises are not peculiar to such land or building; they do apply generally to land or buildings in the neighborhood; they have resulted from an act of the appellants or a predecessor in title subsequent to the adoption of this Code.
6. The strict application of the provisions of this Code would not deprive the appellants of the reasonable use of such land or building; the granting of the variance is not necessary for the reasonable use of the land or building.
7. Granting this variance will constitute a radical departure from the general purpose and intent of the Code; it will be injurious to the neighborhood; it will change the character thereof; it will be otherwise detrimental to the general welfare of the Village and its residents.
8. Appellants are not entitled to a variance" (Certified Record, Exhibit A).
In connection with Benmar`s application for an area variance, the ZBA held public hearings on March 2, 2006, April 6, 2006 and May 4, 2006. In support of its application, Benmar argued that the average shortfall of 5.48 feet in depth was insignificant ( i.e., 3.4% shy of the mandated requirement and not visible from the street), particularly since six out of the twelve lots fronting Brook Street were more deficient in lot depth than the lot being proposed by Benmar ( see Memorandum submitted to ZBA on behalf of Benmar dated February 23, 2006 at 5 hereinafter "Benmar ZBA Memorandum" Certified Record, Exhibit B).Furthermore, although the proposed lot was deficient in depth, Benmar emphasized that the proposed lot exceeded the minimum lot square footage by 60% and lot frontage by 62% (Affidavit of Benedict Salanitro ["Salanitro Aff."] at ¶ 13). Benmar also pointed out six other variances (which were either equal to, or greater than, the Benmar variance) that had been granted by the ZBA in connection with subdivisions of properties located in various zoning districts throughout the Village of Mamaroneck (Benmar ZBA Memorandum, Exhibits F-K, Certified Record, Exhibit B). However, none of the six variance applications involved property located within the Tompkins Farm Neighborhood. To rebut petitioners` position that the houses in the neighborhood had not changed and that no new construction had taken place since the 1991 Decision, Benmar listed 21 properties where building permits had been issued by the Building Department ( see Letter dated April 19, 2006 from Benedict Salanitro to the ZBA, Certified Record, Exhibit N).
A Lot Depth Analysis Chart annexed to Benmar`s application had the following shortfalls for lot depth deficiencies for the six homes on Brook Street #516 had an average shortfall of 7.89 feet, #520 had an average shortfall of 6.16 feet, #524 had an average shortfall of 4.40 feet, #616 had an average shortfall of 13.10 feet, #620 had an average shortfall of 9.67 feet, and #626 had an average shortfall of 3.97 feet (Benmar ZBA Memorandum, Exhibit D, Certified Record, Exhibit B).
Indeed, one of the variances involved an application in which the original application had been denied in 1987, but when a new owner applied for the variance in 2001, the ZBA granted the variance thereby permitting the subdivision to occur. The property was not located in the Tompkins Farm Neighborhood and was in a totally different zoning district (R-2F) from the instant property (R-5) (Benmar ZBA Memorandum, Exhibit I, Certified Record, Exhibit B).
To support its position that the ZBA was not bound by the 1991 Decision, Benmar argued, inter alia, (1) the Williams` application sought a larger variance than the variance that was being sought by Benmar (Salanitro Aff. at ¶ 11), and (2) since the 1991 Decision, Village Law § 7-712-b(3)(b) had been amended to delete the requirement that the applicant show practical difficulties ( id.)
To offset the concern that the ZBA`s grant of a variance in this case would open the floodgates to additional subdivision applications in the Tompkins Farm Neighborhood, Benmar argued that "[d]ue to the unique circumstance of the Property being located on a corner and the angle of the intersection of Brook Street and Beach Avenue, no applicable precedent would be created for dissimilarly situated properties in the neighborhood" (Benmar ZBA Memorandum at 3, Certified Record, Exhibit B).
As set forth more fully herein, during the late 1980`s to early 1990`s, at least two other properties in the Tompkins Farm Neighborhood sought variances in order to subdivide their properties to build second homes on substandard lots, but their variance requests had been denied by the ZBA.
Benmar also submitted a petition signed by 13 residents in support of the application. In the petition, the residents asserted their belief that the two new houses (the new house to be built on the second lot and the additions and renovations that were being proposed to the existing house) would not create an undesirable change to the neighborhood or a detriment to nearby properties, that the requested variances were negligible, and that the project would not have an adverse effect on the physical or environmental conditions in the neighborhood (Certified Record, Exhibit I). One resident who spoke in favor of the Benmar application at the public hearing addressed his view that the new home would not impact the character of the neighborhood since homes located at the ends of Beach Avenue had different architectural styles and, therefore, the new home was not a problem (Transcript of 4/6/06 Hearing at 51-52, Certified Record, Exhibit O). Another resident voiced his view that the new home, as indicated in the rendering, would be a positive attribute to the community (Transcript of 4/6/06 Hearing at 60, Certified Record, Exhibit O).
There were 138 residents who signed a petition opposing the Benmar application (Certified Record, Exhibit J), many of whom spoke during the public hearings. The evidence presented by these residents established: (1) the six substandard lots on Brook Street referred to by Benmar in support of its application predated the enactment in 1968 of the Zoning Code and became nonconforming as a result of the Zoning Code`s adoption (Letter dated April 8, 2006 from Nora Lucas to the ZBA at 2, Certified Record, Exhibit J); (2) all applications for area variances to create buildable lots on substandard properties in the immediate vicinity of the property had been denied by the ZBA ( id.; Letter dated April 28, 2006 from Nora Lucas to the ZBA at 3, Certified Record, Exhibit J); (3) since the 1991 Decision, the Methodist Church located in the Tompkins Farm Neighborhood had been placed on the National Register of Historic Places in 1992, and the Albert Wilson house located immediately next door to the property had become eligible for the listing on the National Register of Historic Places in February 2006 (Resource Evaluation dated 2/23/06 from Peter Shaver, Certified Record, Exhibit J); (4) the three new houses that had been built in the neighborhood (one at 225 Melbourne Avenue prior to the 1991 Decision and two more on Pine Street since the 1991 Decision) required no area variances so that their construction was outside the purview of the ZBA; (5) that in the Tompkins Farm Neighborhood, "the overwhelming majority of properties (78%) sit on lots larger than the minimum required by the zoning"; and (6) with regard to Benmar`s listing of 21 properties involving "new construction" (a) five were historic restoration projects, (b) two were the new homes on Pine Street that required no variances and were outside of the [*6]viewscape, ( c) three involved construction occurring before the 1991 Decision, (d) one was not a recognized address, and (e) the remainder were either rear additions or renovations to interior spaces such as bathrooms or kitchens ( see Letter dated April 28, 2006 from Nora Lucas to the ZBA at 3, Certified Record, Exhibit J; Letter dated April 28, 2006 from Thomas Whyatt to ZBA at 5, Certified Record, Exhibit J; Transcript of 5/4/06 Hearing at 6-8, Certified Record, Exhibit O).
Petitioner Lucas investigated the tax cards on the nonconforming properties identified by Benmar in its application and found that all were made nonconforming as a result of the enactment of the 1968 Zoning Ordinance and not because of variances having been granted. According to the uncontroverted evidence presented by petitioner Lucas "to date no such properties have been created by the Variance process" (Letter dated April 8, 2006 from Nora Lucas to the ZBA at 2, Certified Record, Exhibit J).
According to petitioner Lucas, "225 Melbourne was built in 1972 on a large lot that required no variance. . . . [As the house was built as of right]] . . . [t]he Zoning Board had neither the opportunity nor authority to protect the historic neighborhood" (Letter dated April 8, 2006 from Nora Lucas to ZBA at 2, Certified Record Exhibit J).
Petitioner Lucas established that on Block 53 where 601 Brook Street sits and on Block 28, 100% of the properties sit on lots larger than that required by the Zoning Code, on Block 72, 86% were above the minimum, on Block 54, 79% were above the minimum, and on Block 26, 40% were above the minimum and an additional 24% were at the minimum (Letter dated April 8, 2006 from Nora Lucas to the ZBA at 3, Certified Record, Exhibit J).
One of the properties listed on which a new house was built involved a substandard lot on Orchard Street which was deemed legally non-conforming "since it was owned under single and separate ownership when the Zoning Ordinance was enacted in 1968" (Verified Petition at 15, n. 3).
The public hearing was closed on May 4, 2006. The ZBA then held a Special Meeting on May 9, 2006 to discuss the ZBA`s determination on the Benmar application. During this discussion, a rather heated exchange occurred between respondent Gabriele and respondent Neuringer regarding the propriety of the findings that were being proposed by respondent Gabriele for ZBA approval. Respondents Neuringer and Jackson further voiced their opinion that there was no factual distinction between the applications and, in their view, the ZBA was bound by its 1991 Decision (Transcript of 5/9/06 Meeting at 21-23, 48-49, 81 and 109, Certified Record, Exhibit O). Respondent Neuringer further stated that he did not believe the ZBA was fulfilling its obligations with regard to the State Environmental Quality Review Act "("SEQRA") because the action was not a Type II action respondent Neuringer viewing Type II actions as those limited to applications "for individual setback and lot line variances and area variances for a single-family, two-family or three-family residence" ( id. at 85). Therefore, because he viewed the action to be a request for the ZBA`s approval of an apportionment located near a structure soon to be designated historic, respondent Neuringer stated that it had to be viewed as an unlisted action ( id.). Ultimately, the ZBA voted that the action was a Type II action and also voted in favor of granting the application (respondents Gabriele, Mgrditchian and Sullivan in favor, respondents Neuringer and Jackson opposed).
The ZBA determined that it was a Type II action based on its interpretation of the application as a request for the granting of an area variance ( 6 NYCRR § 617.5[c][13]) and/or a request for the granting of an individual setback and lot line variance ( 6 NYCRR § 617.5[c] [12]).
With regard to the issue of whether the ZBA was bound by the 1991 Decision, the ZBA found:
""[t]his Board has examined the question of whether it should be bound by the 1991 decision (which denied the prior owner) and the law of the State as to whether this Board must adhere to its prior decision.
The guiding principals on this question are set forth by the Second Department in its decision in Moore v. Town of Islip, 2nd Dept___ N.Y.S.2d___ 2006 NY Slip Op. 03092; Josato v. Wright, 288 AD2d 384 2nd Department (2001); and Peccararo v. Humenik, 258 AD2d 465, 2nd Dept. (1999).
In reviewing the principals set forth in those cases and applying them to the factors herein, this Board finds the doctrine of administrative res judicata inapplicable for the following reasons:
a. The prior application was made by a different applicant. This Board is not is not unmindful that it may refuse to hear an application in the absence of new facts or a change of circumstances even when the application is brought by a different applicant. However, a zoning board may not refuse to consider an application with respect to which there has been a substantial change of circumstances since the prior denial.
b. The prior decision was made before the Village Law § 7-712-b(3)(b) was amended to define the requirements for an area variance. Specifically, we note that the 1991 decision denying the application applies the tests of practical difficulty and reasonable return, which do not constitute part of the current statutory scheme for considering an area variance.
c. Further, the current application is factually different from the prior application in that the proposed frontage is substantially different, i.e. 83 feet (now) as opposed to 71 feet and the square footage is substantially different 7,966.34 now as opposed to 6,799, approximately 17% difference in both square footage and frontage.
Therefore, after an examination of the applicable law, we reach the conclusion that we are not bound by the aforementioned 1991 decision, and we can examine the instant application de novo" (Resolution, Certified Record, Exhibit L).
The ZBA then proceeded to review the application by analyzing the five factors set forth in Village Law § 7-712-b(3)(b) and weighing the benefit to Benmar versus the detriment to the health, safety and general welfare of the community. In so doing, the ZBA made the following specific findings:
"[t]here will be no undesirable change produced in the character of the neighborhood nor will a detriment to nearby properties be created by the granting of the area variance. . . . The benefit sought by the appellant cannot be achieved by some method feasible for the appellant to pursue other than the area variance. . . . The requested area variance is not substantial. . . . The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. . . . The alleged difficulty was self-created, but is not of such a nature as to require denial. . . . As an initial observation, this Board is not unmindful that it is the directional layout of Brook Street that prevents appellant from an as right subdivision, i.e. the angling of Brook Street deprives the appellant of the 5.48 feet necessary for an as right subdivision. In fact, this Board is cognizant of the fact that, but for the directional deviation` of Brook Street, the property could have been divided into three conforming lots with two additional houses built as of right. . . . We further note that appellant has stated on the record that if the requested variance is granted, it will cause a restrictive covenant to be placed in the new deeds stating that the lots created cannot be further subdivided. . . . The new lot` to be created will have frontage (width 83 feet) and square footage substantially in excess of what is required under 342-27, and, in those regards, equal to or in excess of the properties in the neighborhood. . . . We note with interest that it has been pointed out by a Board member that there have been no new houses built within the general neighborhood, except for two homes which were constructed on Pine Street and required no variances. Clearly, therefore, it is not the mere construction of a home which impacts a neighborhood. In fact, the entire area surrounding the property contains numerous nonconforming lots as to both square footage and depth, so in that respect this proposed lot exceeds those and is, therefore, consistent with the neighborhood. . . . The requested variance is not substantial, and is quite minor in the context of the neighborhood and general vicinity. Again, a substantial number of the properties within the neighborhood are nonconforming. In fact, out of twelve properties with Brook Street addresses, seven do not comply with area requirements and, of these, six do not have the requisite lot depth of 100 feet for an R-5 zone. . . . It was determined that the benefit to the appellant outweighs any detriment, as outlined above, including any detriment to the health, safety or welfare of the community or the neighborhood. . . . The area variance to be granted is the minimum variance necessary and adequate to provide the relief requested for the appellant, and, at the same time will preserve and protect the character of the neighborhood" (Certified Record, Exhibit L).
The instant Article 78 ensued. In this proceeding, petitioners seek this Court`s annulment of the ZBA`s May 9, 2006 decision on the grounds that it is arbitrary and capricious because Benmar failed to demonstrate that there had been a change in circumstances sufficient to justify the ZBA`s departure from its prior precedent found in the 1991 Decision. Respondents oppose the petition and argue, inter alia, that given the differences in the applications, the ZBA was not bound by its 1991 Decision. Therefore, respondents contend that the ZBA properly determined that the benefit to the applicant outweighed any detriment to the health, safety and general welfare of the community. The ZBA has also moved (and Benmar has joined in its motion) to strike material which it contends is dehors the record of the ZBA proceedings.
LEGAL DISCUSSION
Because the Williams` Application Was Not Materially Different From the Benmar Application, There Was No Rational Basis For the ZBA to Reach a Different Result on Essentially The Same Facts
There are two seemingly separate, but nevertheless intertwined doctrines at play when an applicant (or the applicant`s successor in interest) applies more than once to a zoning board requesting that the board grant the same or similar variance to his or her property. One theory, which justifies a zoning board`s actual denial of the right for the applicant to even be heard for a second time is res judicata. That theory "bars a party from relitigating issues which were or could have been litigated in a prior action or proceeding" ( Matter of Waylonis v Baum, 281 AD2d 636, 638). "It is well settled that the doctrine of res judicata applies to the quasi-judicial determinations of administrative agencies, including municipal zoning boards" ( id.). Thus, unless the applicant demonstrates a change of circumstances or new facts that were not available at the time of the original application, a zoning board is entitled to deny the reconsideration of the application ( Matter of Falco v Town of Islip Zoning Bd. of Appeals, 283 AD2d 576; see also Matter of Lee v Zoning Bd. of Appeals of Town of Putnam Valley, 1 AD3d 600; Jensen v Zoning Bd. of Appeals of Village of Old Westbury, 130 AD2d 549, lv denied 70 NY2d 611).
The other doctrine, akin to stare decisis, provides that " [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 is arbitrary and capricious`" ( Matter of Knight v Amelkin, 68 NY2d 975, 977, quoting Matter of Charles A. Field Delivery Serv., Inc., 66 [*9]NY2d 516, 517 [1985]). As noted by the New York Court of Appeals, the reasons behind the requirement that an administrative agency follow its prior precedent are well founded:
"The policy reasons for consistent results, given essentially similar facts, are . . . largely the same whether the proceeding be administrative or judicial to provide guidance for those governed by the determination made . . .; to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice . . . The underlying precept is that in administrative, as in judicial proceedings, justice demands that cases with like antecedents should breed like consequences`" ( Matter of Charles A. Field Delivery Serv. Inc., 66 NY2d at 519, quoting Davis, Doctrine of Precedent as Applied to Administrative Decisions, 59 W.Va.L.Rev. 111, 117).
In Matter of Knight, the Court of Appeals expressly noted that "[i]nasmuch as a zoning board of appeals performs a quasi-judicial function when considering applications for variances . . . a zoning board of appeals must comply with the rule of the Field case" ( Matter of Knight, 68 NY2d at 977).
It is the ZBA`s position the Court of Appeal`s decision in Matter of Knight is very circumscribed insofar as the Court merely held that "because petitioners have shown earlier determinations of the Board reaching contrary results on essentially the same facts, an explanation is required. . . ." ( Matter of Knight, 68 NY2d at 978). From that holding, the ZBA extrapolates that "a result different from the aforesaid 1991 decision would be arbitrary and capricious if the instant decision . . . [1] did not indicate its reasons for reaching a different decision . . . ` which was based . . . [2] on essentially the same facts`" (ZBA Memorandum of Law at 6). The ZBA argues that because the ZBA has set forth three reasons why the present application differs from the prior application ( i.e., different applicants, the change in Village Law § 7-712-b(3)(b) to remove practical difficulties from the ZBA`s analysis for an area variance, and the different dimensions of the two properties based on Benmar`s shifting of the lot line thereby providing additional frontage and overall square footage to the new proposed lot and reducing the frontage and overall square footage of the existing lot) it has fulfilled its obligation under Matter of Knight and it was entitled to depart from the prior precedent outlined in its 1991 Decision. Based on the ZBA`s de novo review of the Benmar application, the ZBA contends that the variance was properly granted pursuant to the provisions of Village Law § 7-712-b(3)(b) since the benefit to Benmar outweighed any detriment to the health, safety and general welfare of the community.
Petitioners contend that the ZBA has confused administrative res judicata which would have barred the ZBA from even considering Benmar`s application with the ZBA`s obligation to follow administrative precedent "which prohibits zoning boards from arbitrarily disregarding their prior zoning decisions where (as here) there has been no change in the underlying facts" (Reply Affirmation of Robert Balin at ¶ 29). Petitioners argue that because the ZBA failed to articulate a change in circumstances sufficient to justify a departure from its 1991 Decision, the May 9, 2006 decision granting Benmar`s variance application was arbitrary and capricious.
The Court finds that the cases cited by petitioners and respondents are applicable and that the ZBA properly interpreted relevant case law in support of its determination that res judicata did not apply so that it was empowered to consider the Benmar application. The Court further finds that although the ZBA attempted to follow the Court of Appeals` holding in Matter of Knight by articulating three differences between the Williams` application and the Benmar application, the three reasons cited by the ZBA do not support that there was a material change in circumstances between the applications sufficient to justify the different result. Accordingly, the ZBA`s decision must be annulled as arbitrary and capricious for its failure to follow its 1991 precedent.
The law is clear that simply because a zoning board articulates reasons to support its decision to depart from prior precedent, those reasons will not necessarily insulate the decision from being found to be arbitrary and capricious unless the reasons set forth a " rational` . . . and satisfactory` . . . explanation for departing from the prior precedent" ( Matter of Nozzelman 60, LLC v Village of Cold Spring Zoning Bd. of Appeals, 2006 NY Slip Op 08775 [2006]). Thus, to justify a departure from a prior determination, there must be a change of circumstances sufficient to justify the contrary result — i.e., that there were substantive differences between the applications or that there has been some other material change in circumstances (such as a change in the character of the neighborhood) to justify the different decision.
The requirement that the reasons articulated be rational is exemplified in the Appellate Division, Second Department`s holding in Matter of Mobil Oil Corp. v Village of Mamaroneck Bd. of Appeals ( 293 AD2d 679). In that case, the Appellate Division reviewed the Village of Mamaroneck`s Zoning Board`s decision to deny an area variance for the construction of a canopy to Mobil Oil Corp.`s gas station located in a C-1 district on Mamaroneck Avenue. Of particular interest to the Appellate Division was the fact that the ZBA had recently granted "a variance permitting Shell Oil Company . . . to erect a canopy at its gas station in an identically zoned C-1 district. . . ." ( Matter of Mobil Oil Corp., 293 AD2d at 680). Based on that prior decision, the Appellate Division found that the ZBA failed to "properly distinguish its prior determination granting an area variance to Shell" ( id. at 681). Thus, the Appellate Division found that the ZBA`s reasons for distinguishing Mobil`s application for a canopy from Shell`s application for a canopy were not rational. The Court held that "[i]n view of these errors committed by the Board of Appeals, it cannot be said that it engaged in the appropriate balancing of factors in determining the petitioner`s application for the area variance for the canopy or that it appropriately distinguished the Shell precedent to satisfy its quasi-judicial obligations" ( Matter of Mobil Oil Corp., 293 AD2d at 681-682).
The purported reasons were (1) Mobil`s canopy would be larger than Shell`s canopy, (2) Shell`s station was solely a self-service station whereas Mobil`s was 1/3 full service and therefore, the customers at the Shell station were in greater need of protection from inclement weather than the Mobil customers, and (3) that petitioner`s pumps constituted preexisting nonconforming installations such that the proposed canopy would increase the nonconformity.
Here, it is evident that the reasons articulated by the ZBA for why it was not obligated to follow its prior precedent were not rational and the ZBA did not satisfy its quasi-judicial obligations. The ZBA`s first reason that it is not bound by its 1991 decision because the application was being brought by a different applicant is insufficient to justify a different decision because administrative due process prohibits inconsistent treatment of similarly situated parties ( Matter of Knight, 68 NY2d at 977; see also Matter of Waylonis, 281 AD2d at 638 ["[t]he record also indicates that on previous occasions the ZBA included portions of other parcels that extended into private roads in calculating lot area. Under these circumstances, it was arbitrary and capricious for the ZBA to fail to adhere to its own precedent on essentially the same facts"]; Exxon Corp. v Board of Standards and Appeals of City of New York, 128 AD2d 289, 296, lv denied 70 NY2d 614 ["an administrative agency may not rule or act in such a way as to result in inconsistent treatment of similarly situated parties"]). Given the due process violation that would occur if a different applicant were the only reason for a ZBA`s departure from prior precedent, it appears from the case law that the significance of a different applicant is only relevant with regard to the issue of res judicata. Therefore, the first reason articulated by the ZBA is insufficient to justify its departure from the 1991 Decision.
The second reason cited by the ZBA that Village Law § 7-712-b(3)(b) was amended to delete the requirement of practical difficulties is likewise insufficient to justify the ZBA`s departure from its prior precedent. Relying on Matter of Pecoraro v Board of Appeals of Town of Hempstead ( 2 NY3d 608), respondents contend that because Village Law § 7-712-b(3)(b) was amended to remove practical difficulties from the ZBA`s weighing of factors in its area variance determinations, they were entitled to review and grant Benmar`s application. By contrast, it is petitioners` position that based on the Court of Appeals` holding in Matter of Sasso v Osgood ( 86 NY2d 374), the 1991 amendment of the Village Law had little impact on existing law and unless there was a change of facts or circumstances, the ZBA was bound by prior determination.
Petitioners are correct that the Court of Appeals in Matter of Sasso explained that the five factors set forth in the amended statute "parallel the criteria previously used by the lower courts and identified by Professor Anderson as the practical difficulties` test. . . ." ( Matter of Sasso, 86 NY2d at 382) and, therefore, the statute was to have " little impact on existing laws since the main thrust of the legislation is to clarify and establish, in statute, the powers of the Zoning Board as already defined by jurisprudence`" ( id. at 384 quoting Bill Jacket, L.1991, ch. 692 at 20).
The Court of Appeals further explained that the "basic inquiry" for practical difficulties " is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner'" (Matter of Sasso, 86 NY2d at 381 quoting Matter of De Sena v Board of Zoning Appeals of Inc. Village of Hempstead, 45 NY2d 105, 108 [1978]). Again, such an inquiry would clearly fall within the current statutory factors that the zoning boards are now required to review pursuant to Village Law § 7-712-b.
Respondents are nevertheless also correct in their assessment that the courts have used the statutory amendment, coupled with additional factors such as a material change in the applications, to justify a departure from a zoning board`s prior precedent ( see Matter of Pecoraro, 2 NY3d at 614 ["[w]hile the Board relied on its 1969 denial of a similar variance, it did not give estoppel effect to that decision. Nor could it do so since Town Law § 267-b was enacted after that determination"]; see also Matter of Peccoraro v Humenik, 258 AD2d 465; Matter of Josato, Inc. v Wright, 288 AD2d 384). However, it is clear based on the facts of Matter of Peccoraro and Matter of Josato, it was not merely the amendment in the statute, but instead a change in the applications themselves, that justified the departure from prior precedent.
A review of the 1991 Decision makes clear that the primary reason for the denial was a concern that the grant of the variances and the consequent building of a new home on the property would have a detrimental impact on the aesthetics and historical significance the ZBA members placed in the Tompkins Farm Neighborhood. Although the 1991 Decision mentions the fact that the Williams had failed to show practical difficulties, it is evident that the decision did not hinge on this factor.
The ZBA`s third reason that the dimensions of the lots have changed based on Benmar`s shifting of the property line by taking frontage from the existing lot and adding it to the proposed second lot is likewise untenable as a reason to justify the ZBA`s departure since this transfer of property can hardly be viewed as a material change in the applications ( see Matter of Civic Assn. of Setaukets v Trotta, 8 AD3d 482; Matter of Pettit v Board of Appeals of Town of Islip, 160 AD2d 1006, 1007-1008). Here, it is undisputed that the Benmar application sought the same lot depth variance that was sought by the Williams in 1991 ( i.e., approximately 5.5 feet) and the Benmar application also placed the house in exactly the same location that the Williams had proposed. Thus, the only difference is that the existing lot will be substantially smaller and the second lot will be substantially larger than the lots proposed by the Williams because Benmar has decided to shift additional property over to the proposed second lot (most likely to compensate for the increased size of the proposed second house as compared to the house that had been proposed by the Williams).
The Benmar application proposed as the frontage for the new lot 83 feet as opposed to the 71 feet that had been proposed by the Williams, and the Benmar application increased the square foot of the new lot from the 6,799 feet that had been proposed by the Williams to 7,966.34 square feet.
In Matter of Civic Assn. of Setaukets, petitioner had originally been denied the right to subdivide his property. However, petitioner reapplied to the ZBA and the second application for area variances was granted, thereby allowing the subdivision to proceed. It appears that the only differences between the first and the second applications were (1) the lot line had been moved so the lots` dimensions had changed between the first and second applications, and (2) the first application would have allowed for three homes to be situated on the two lots whereas the second application limited the number of homes to two.
In affirming the lower court`s annulment of the ZBA`s decision to grant the variances, the Appellate Division, Second Department held
"[t]he Board of Zoning Appeals of the Town of Brookhaven . . . granted an application made by the appellant in 2002 for a zoning variance that allowed the property at issue to be reconfigured and used in essentially the same way that had been proposed in a 2001 application that the Board had denied. Contrary to the appellant`s contention, there was no rational basis for reaching a different result on essentially the same facts" ( Matter of Civic Assn. of Setaukets, 8 AD3d at 483).
Similarly, here, the change in the lot lines by adding property to the proposed lot by taking frontage from the existing lot does not constitute a material change from the 1991 application. Accordingly, because the third purported reason lacks a rational basis, it also cannot justify the ZBA`s departure from its 1991 precedent. Finally, as set forth below, because there has been no other change in circumstances, such as a change in the character of the neighborhood, since the 1991 Decision, the ZBA was not justified in departing from its 1991 Decision.
The ZBA`s Determination Cannot Be Justified on the Basis of a Change in the Character of the Neighborhood
In its 1991 Decision, the ZBA found that the granting of the variance would be injurious to the historical and aesthetic character of the neighborhood given the architectural styles of the homes and side yards present in the properties found in the Tompkins Farm Neighborhood. Thus, even though at the time of the 1991 Decision, six of the twelve properties on Brook Street had substandard lot depths, the ZBA nevertheless concluded that based on historic and aesthetic concerns, they were unwilling to permit the subdivision of this property in order for a second house to be constructed. This decision was in line with the ZBA`s prior denials of subdivision requests in the Tompkins Farm Neighborhood ( i.e., its denial of variances requested for the property located at 420 Melbourne Avenue in the late 1980`s and its 1991 denial of a variance request for property located at 316 Beach Avenue [across the street from the Benmar property] in 1991).
The rationale to deny a variance based on aesthetic/architectural concerns has been upheld by the New York Court of Appeals as a valid basis for area variance denial ( see Matter of Ifrah v Utschig, 98 NY2d 304). In that case, the Court of Appeals reversed the Appellate Division, Second Department`s decision to grant the petition and permit a subdivision to take place based on the fact that there were many substandard lots that did not meet the up-zoned one acre requirement. The basis for the Court of Appeals` decision was that the Appellate Division had disregarded the "evidence of the distinctive neo-Tudor architectural style of the houses lining Fenimore Drive, popular when those homes were built more than 60 years ago, which would be disturbed by the addition of a modern house on the subdivision" ( Matter of Ifrah, 98 NY2d at 308). In that case, petitioner had provided evidence that "33 of the 39 lots within 500 feet of petitioner`s parcel were substandard, and 20 of those 39 lots were smaller than the smaller of the two lots that would be created by the subdivision" ( id. at 306). Nevertheless, the Court of Appeals held that lot size was not the sine qua non for determining the character of the neighborhood, and that the aesthetic concerns of placing a modern home in the midst of the 60 year old neo-Tudor homes that were found in this neighborhood were sufficient to justify the zoning board`s decision to deny the variance based on the detrimental impact on the character of the neighborhood. Accordingly, the Court of Appeals reversed the Appellate Division and upheld the ZBA`s determination to deny the variances.
During the ZBA proceedings, petitioners submitted extensive evidence concerning the character of the neighborhood and how the area had not changed since the 1991 Decision (and for that matter, that the area had not changed since the enactment of the 1968 Zoning Ordinance), and, therefore, the aesthetic concerns that applied to the ZBA`s 1991 Decision applied equally to the Benmar application today. For example, in response to respondent Gabriele`s request to petitioner Lucas to explain, based on her experience as a practicing Architectural Historian and Historical Preservation Consultant, how one home could change the character of the neighborhood, petitioner Lucas prepared a letter dated April 8, 2006 (Certified Record, Exhibit J). In that letter, petitioner Lucas explained that the new house would be (1) architecturally incompatible with the Period Revival (including Colonial Revival) typical of the homes found in the neighborhood, and (2) out of scale and proportion to the housing stock in the Tompkins Farm Neighborhood ( i.e., that it would be too large in relation to the other homes and would occupy more of its lot than typical of most homes insofar as it would have nearly the highest FAR in the neighborhood). Petitioner Lucas further explained that Benmar`s proposal to expand the size of the existing house by 67% while decreasing its lot size by 43% would make the existing house the second largest in the neighborhood and therefore, even the proposed construction on the existing house would be inconsistent with the historical lot size and configuration on Block 53 where the proposed development is located.
Petitioner Lucas has been a practicing Architectural Historian and Historical Preservation Consultant for in excess of 20 years and holds a Masters degree in Preservation Studies from Boston University. She has documented over 5000 individual residential buildings and has developed an expertise in the documentation and evaluation of late 19th century and early 20th century architectural resources. Petitioner Lucas is also a volunteer member and Chairman of the Mamaroneck Landmarks Advisory Committee, and in that position, she claims she has done substantial research on the history of the Village, its development, and its buildings and neighborhoods ( see Letter dated February 28, 2006 from Nora Lucas to the ZBA at 1, Certified Record, Exhibit J).
This assertion was based on petitioner Lucas`s reconnaissance level survey of the homes in the Tompkins Farm Neighborhood where she evaluated each building based on its age and architectural integrity (similar to what she would do in connection with a proposed National Register Historic District). She evaluated each home to determine whether it contributed to the character of the neighborhood. Based on this survey, she concluded "[o]f the 80 residences in the viewscape, all but 6 are considered to contribute to the architectural and historical significance of the district. And each of those six isolated residences are at the extreme periphery of the viewscape. (Specifically, one at the corner of Tompkins and Beach; two on Brook Street; near Melbourne; one at the southeastern corner of Brook and Barry; and two on the east side of Beach north of Linden Street)"(Letter dated February 28, 2006 from Nora Lucas to ZBA at 3, Certified Record, Exhibit J).
The only proof submitted by Benmar to contradict petitioner Lucas`s opinion was its contention that 21 properties in the neighborhood had undergone changes and therefore, the neighborhood was not, as petitioners contended, intact and virtually unchanged since the 1991 Decision ( see Letter dated April 19, 2006 from Benedict Salanitro to the ZBA, Certified Record, Exhibit N). However, this evidence was effectively refuted by evidence submitted by petitioners that one quarter of these renovations were historic preservation projects that enhanced the quality of the neighborhood, two were the new homes constructed without variances on Pine Street outside the viewscape, one was not a recognized address, three involved construction occurring before the 1991 Decision without the need for variances, and the remainder were rear additions or other minor interior renovations that had no impact on the character of the neighborhood (Letter dated April 28, 2006 from Nora Lucas to the ZBA at 3, Certified Record, Exhibit J; Letter dated April 28, 2006 from Thomas Whyatt to ZBA at 5, Certified Record, Exhibit J; Transcript of 5/4/06 Hearing at 6-8, Certified Record, Exhibit O).
Benmar`s evidence concerning variances the ZBA had granted to properties outside the immediate vicinity of the property does nothing to further its application. Although Chairman Gabriele stated that he viewed the neighborhood to Benmar`s property to be the Village of Mamaroneck, and, as such, the ZBA should gauge the de minimus nature of this variance request against the variances the ZBA has granted to properties throughout the entire Village of Mamaroneck (Transcript of 5/9/06 Hearing at 35, Certified Record, Exhibit O), this position is contrary to existing case law ( see Matter of Pesek v Hitchcock, 156 AD2d 690, 691 [1989] [zoning board not required to explain why area variance denied to petitioner where similar area variances had been granted to other properties since those other properties were in "different neighborhoods with different exigent circumstances. . . ."]; Matter of Pecoraro, 2 NY2d at 614 [zoning board properly found that character of the neighborhood would be negatively impacted where there was evidence that within a 200-foot radius of the property, the area overwhelmingly conformed to or was larger than the zoning requirements, the neighborhood had not changed since 1969, and that only 6 out of 35 properties had the same 40 foot width as the subject parcel]).
Despite the evidence concerning the lack of a change in the character of the neighborhood since 1991, the ZBA found that the variance (and the consequent construction of a new home) would not negatively affect the character of the neighborhood since "the entire area surrounding the property contains numerous nonconforming lots as to both square footage and depth. . . . out of twelve properties with Brook Street addresses, seven do not comply with area requirements and, of these, six do not have the requisite lot depth of 100 feet for an R-5 zone" (Certified Record, Exhibit L). The ZBA`s finding, however, neglected one critical fact the six properties with deficient lot depths were made nonconforming by the 1968 amendment to the Zoning Code. As such, the nonconformity of these properties should not have entered into the analysis ( see Matter of Pecoraro, 2 NY2d at 615 ["none of the improvements on the substandard parcels were erected pursuant to a variance. Those parcels, though substandard, were legally nonconforming and the dwellings erected on them were built prior to the enactment of the current zoning ordinances"]). Furthermore, this finding neglects the other evidence presented by petitioners that 78% of the properties in the Tompkins Farm Neighborhood are located on lots that exceed the zoning requirements for the R-5 District and that through this subdivision, the ZBA was going to be creating two of the smallest lots in the Tompkins Farm Neighborhood (and that these lots would be supporting two of the largest houses that would be found in the neighborhood). Accordingly, because there was no evidence presented that the character of the Tompkins Farm Neighborhood had changed since the 1991 Decision, the ZBA should have adhered to its 1991 Decision where it found that the aesthetic and historic concerns in preserving the character of the community outweighed the benefit to the applicant. Based on the foregoing, the ZBA`s reasons for changing its 1991 Decision did not set forth a rational and satisfactory explanation for its departure from prior precedent and, therefore, its decision to grant the area variance to Benmar was arbitrary and capricious. Respondents` Motion to Strike Material Dehors the Record
Although during the submissions before the ZBA, petitioners contended that the ZBA was required to take the requisite hard look at the environmental impacts of this project pursuant to the State Environmental Quality Review Act ("SEQRA") given the proximity of the property to the Albert Wilson House a house that had been determined to be eligible for listing on the National Register of Historic Places on February 23, 2006 for some reason, petitioners did not pursue this issue in the instant proceeding. Indeed, during the ZBA proceeding, it was petitioner Lucas` expert opinion that the new house proposed by Benmar "would compromise the historic relationship of the Wilson house to its setting, thereby compromising the historic integrity of the Wilson house" (Letter dated February 28, 2006 from Nora Lucas to the ZBA at 4, Certified Record, Exhibit J). The ZBA ruled that the action was a Type II action (thereby outside SEQRA`s purview) based on its interpretation of the application as an area variance and lot line change to construct one single family residence ( see 6 NYCRR § 617.5[c] [12] and [13]). However, if the application is interpreted as a subdivision, it would be subject to SEQRA review as an unlisted action ( see, e.g., Tehan v Scrivani, 97 AD2d 769 [1983]). There is no doubt that SEQRA views development occurring on properties adjoining structures of historical significance to be environmentally significant under the regulations. For example, the criteria listed in the regulations for determining whether a proposed Type I or unlisted action may have a significant effect on the environment includes "the impairment of the character or quality of important historical . . . resources . . ." (6 NYCRR § 464.15 [a][5]). Furthermore, another section of the regulations provide that an unlisted action should be deemed a Type I action if it is "occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places, or that has been proposed by the New York State Board on Historic Preservation for a recommendation to the State Historic Preservation Officer for nomination for inclusion in the National Register" ( 6 NYCRR § 617.4 [b][9]).
In addition to answering the petition, the ZBA moves to dismiss those portions of the petition that the ZBA contends are dehors the record. In the Affidavit submitted in support of the motion to strike, the ZBA`s Chairman, Mauro Gabriele asserts that "[t]he allegations in the Petition concerning racism and favoritism are the vilest of vile. This stuff of reality TV and Jerry Springerism . . . [and] are in all respects unequivocally untrue" (Affidavit of Mauro Gabriele at ¶¶ 14, 16). Mr. Gabriele further avers that "the extent of any interest` I have with the applicant . . . was publicly disclosed as required under Section 21-3(E)(1) [of the Mamaroneck Village Code of Ethics] at the first public hearing. . . ." ( id. at ¶ 17). According to the ZBA, petitioners spend five pages of the petition alleging that "the granting of the instant variance resulted`. . . . upon information and belief, from favoritism from a local board controlled by members of a local mutual aid society. The proceedings were tainted", that "certain ZBA members used their official position to favor Benedict Salantitro, their fellow Vittorio Society member, rather than objectively evaluate the evidence," and that a comparison of the resolution and decision with the detailed record evidences "a systematic bias driving certain ZBA members to grant this area variance. The outcome of this application seemed predetermined rather than resulting from a fair and impartial balancing of the evidence" ( id. at ¶ 19 [a-c]).
The ZBA also takes issue with petitioners` submission of the Affidavit of Doris Roney, which attaches pictures of an alleged meeting between Chairman Gabriele, Mr. Salanitro and former Planning Board Chairman, Larry Fraioli, at property located at 127 Highview Street. Respondents argue that this Court`s consideration of the affidavit would be improper since it contains proof dehors the record.
As an initial matter, some of the material is not dehors the record and, therefore, cannot be stricken. For example, the nature of the social relationship between two of the ZBA members who voted in favor of Benmar`s petition and Mr. Salanitro was specifically made a part of the record when respondents Gabriele and Sullivan stated that they belonged to the same social club as Mr. Salanitro, but that they were also acquaintances of many of the residents opposing the application, and therefore, they would not be recusing themselves from the decision (Transcript of 3/2/06 Proceeding at 1-4, Certified Record, Exhibit O). Not only were these relationships set forth in the record of the proceedings, the ZBA has admitted in its answer that the disclosure of these social relationships was made "pursuant to the requirements of the Code of Ethics of the Village of Mamaroneck, Chapter 21 — subsection 3(E). . . ." (Answer at ¶ 10). Despite the innuendo found throughout the petition, petitioners were obviously not sufficiently concerned about the social ties at the outset of the ZBA proceedings to seek to have the ZBA members recuse themselves based on conflicts of interest.
Although not made a part of the ZBA proceedings, based on the Affidavit of Benedict Salanitro, it appears that the third member of the ZBA who voted in favor of the application, respondent Mgrditchian, was also a member of this social club (Salanitro Aff. at ¶ 7).
Even though the Court is declining to strike the references to these social relationships (and, therefore, petitioners` arguments concerning the preferential treatment afforded to Benmar as a result of these social relationships) because they were made a part of the record, the Court is declining to find that the social ties provide a basis to annul the ZBA`s decision as arbitrary and capricious. As pronounced by former Chief Judge Cardozo "[a] trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior" ( Meinhard v Salmon, 249 NY 458, 464). In determining whether a conflict of interest exists, "[t]he test to be applied is not whether there is a conflict, but whether there might be" ( Tuxedo Conservation and Taxpayers Assoc. v Town Bd. of Town of Tuxedo, 69 AD2d 320, 325). However, the law is also very clear that " the interest which disqualifies a member of councils to vote is a personal or private one, not such an interest as he has in common with all other citizens or owners of property`" ( id. at 326, quoting 133 ALR 1257, 1261-1262). The mere social relationship between an applicant and a zoning board member does not, in and of itself, create a conflict of interest sufficient to require that member`s recusal ( see, e.g., Matter of Rosenfed v Zoning Bd. of Appeals of Town of Ramapo, 6 AD3d 450).
In particular, petitioners are seeking to have the Court find that the decision was arbitrary and capricious because of these social ties by relying on a decision rendered in the Southern District of New York by the Honorable William Conner in a case involving a different determination made by the ZBA regarding an application made by the Westchester Day School for a special use permit ( Westchester Day School v Village of Mamaroneck, 417 F Supp 2d 477 [2006]). However, that case is factually distinguishable from the instant case and not controlling.
Benmar`s counsel, Paul Noto, Esq., in his Affirmation submitted in support of motion to strike, aptly points out the difficulty a small village would face if it were to require that a member of a zoning board (or other board) recuse himself or herself based on social connections with the applicant; "with a community of this size, many residents are members of the Kiwanis, Rotary, Lions Club and other service organizations and it is inevitable that they would be [*17]appearing before various boards and commissions seeking a variety of relief as well as the same people appearing before the same boards and commission opposing applications for a variety of relief" (Affirmation of Paul J. Noto, Esq. at ¶ 8). Because it would be impracticable to require that a member of a town or village board recuse himself or herself every time he or she has a social relationship with an applicant appearing before the board, and because there is nothing to suggest that the ZBA proceeding was tainted by the social ties (and, indeed, the ZBA members specifically stated that their connection with Mr. Salanitro was not of such a degree that they could not be fair and impartial in rendering a decision on Benmar`s application), the Court finds that these alleged social connections to be insufficient to render the proceeding tainted and the determination arbitrary and capricious based on the social club connection.
Based on the three days of public hearings which occurred over the course of three months, petitioners were given a full and fair opportunity to have their positions heard by the ZBA, even though not all ZBA members agreed with the positions they presented.
By contrast, the allegations of racial discrimination as well as the alleged clandestine meeting between Mr. Salanitro, respondent Gabriele and the former Planning Board Chairman, Larry Fraioli, were not made part of the record of the ZBA proceeding and have no place in this Article 78 proceeding. Accordingly, all such references found in the petition are hereby stricken and have not been considered by the Court ( see Barretto v Zoning Bd. of Appeals of Inc. Village of Bayville, 123 AD2d 692; Celestial Food Corp. of Coram, Inc. v New York State Liquor Auth., 99 AD2d 25).
Even if the Court had taken this allegation into consideration in rendering its decision, respondents have refuted Mr. Salanitro`s presence at this meeting since the third party`s identity has been definitively established as Michael Yannuzzi, a firefighter in New Rochelle and a Member of the Village of Mamaroneck`s Fire Council. In his position as a member of the Fire Council, Mr. Yannuzzi is required to review and evaluate plans for development to ensure their compliance with the fire code. When the photo was taken, he was engaged in such a review along with respondent Gabriele and Larry Fraioli.
Similarly, Benmar`s attempt to suggest (for the first time in its reply) a sour grapes reason behind the initiation of this proceeding ( i.e., that petitioners Lucas and Weiner had attempted to purchase the property on behalf of their neighbors, the Abers, and that they had intended to make a windfall profit by subdividing the property into three lots and constructing three modular homes) is improper because these allegations are also outside the record of the ZBA proceedings. Accordingly, these allegations have also been disregarded by the Court.
CONCLUSION
As set forth above, based on the Court`s review of the material made a part of the ZBA proceeding, the Court finds that the decision of the ZBA dated May 9, 2006 was arbitrary and capricious insofar as it failed to set forth a rational reason for the ZBA`s departure from its 1991 Decision.
Accordingly, it is hereby
ORDERED that the ZBA`s motion to strike material dehors the record is granted to the extent set forth herein; and it is further
ORDERED and ADJUDGED that the petition is granted and the ZBA`s decision dated May 9, 2006 granting Benmar an area variance is annulled.
The foregoing constitutes the Decision, Order and Judgment of the Court.