Opinion
010551/10.
Decided July 27, 2010.
Cheryl Gold, Petitioner pro se, Cheryl Schussheim, Esq., Attorney for Petitioner Jeffrey Gold, Mineola, NY.
Sinnreich Kosakoff Messina, LLP, Attorneys for Respondents, Courthouse Plaza, Central Islip, New York.
Gregory J. Giammalvo, Esq., Town Attorney, By: Karen J. Underwood, Esq. Deputy Town Attorney, Attorney for Respondent Town of Oyster Bay, Oyster Bay, NY.
That portion of the petition which seeks to annul a determination by respondent Zoning Board of Appeals (ZBA) which denied petitioner's application for zoning variances is granted, the decision of the ZBA dated April 22, 2010 is annulled and the application is granted.
That portion of the motion of the respondent Town of Oyster Bay (Town) which seeks to dismiss the petition insofar as it asserts that the Town was arbitrary and capricious in denying petitioners variance application and in violating Public Officers Law Article 7, Open Meetings Law is granted. That prong of the petition which seeks a declaration that the ZBA violated the Open Meetings Law is granted to the extent that costs and reasonable attorneys' fees are awarded to petitioner in an amount to be determined at trial. To the extent that the petition may be deemed to seek a declaration that the action taken by the ZBA in violation of the Open Meetings Law should be voided in whole or in part, it is denied. POL § 107. All other requests for relief are denied. A trial is ordered on the amount of costs and reasonable attorneys' fees that should be awarded to petitioners pursuant to POL § 107.2.
Subject to the approval of the Justice there presiding and provided a Note of Issue has been filed by petitioners at least 10 days prior thereto, this matter is referred to the Calendar Control Part (CCP) for trial on September 27, 2010, at 9:30 A.M.
A copy of this order shall be served on the Calendar Clerk and accompany the Note of Issue when filed. The failure of petitioners to file a Note of Issue or appear as directed may be deemed an abandonment of the claims giving rise to the hearing.
The directive with respect to a trial is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer or a Court Attorney/Referee as he or she deems appropriate.
Petitioners own a residence at 10 Joludow Drive, Massapequa, New York, which they desired to modify in order to provide a bedroom suite and sanitary facilities for an invalid parent. After finalizing plans to perform such work without the necessity of obtaining any zoning variances and in accordance with the then applicable Town zoning requirements, they learned that due to recently enacted zoning law changes, they could not obtain approval of the proposed construction without first obtaining variances from the ZBA. The Town building department denied their permit application on the grounds that (i) the proposed building lot coverage of 25.83% exceeded the maximum building lot coverage of 25% by .83%, (ii) the proposed driveway side yard set back of 3' exceeded the required set back of 8' and (iii) the proposed gross area of 3604 square feet exceeded the maximum permitted gross area of 3323.04 square feet by 280.96' square feet.
Petitioners applied for the required variances in November 2009 and allege that their application was derailed by the Town Building Commissioner who would not allow a hearing to take place and who did not respond to telephone calls and written requests that a hearing date be established. A hearing was finally scheduled for March 11, 2010, after petitioners appeared at a Town Board hearing and complained to the Town Board. At the public hearing, there were no objections from any members of the public, petitioners submitted several letters of consent from owners of nearby properties and photographs of other homes in the area.
The ZBA did not deliberate upon the application until April 22, 2010, after petitioners again appeared at a Town Board meeting to complain about not having received a decision.
On April 22, 2010, the ZBA took up the application at an executive session. Petitioners allege that they were denied access to the deliberations because the door was locked and a guard impeded their entry. After a row, they were permitted to attend the executive session and contend that while they were there, no deliberations were conducted with respect to their application.
Petitioners allege that the ZBA violated the Open Meetings Law by the manner in which it convened and conducted the hearing and contend that their rights were thereby violated. POL § 107 permits a court in its discretion to award costs and reasonable attorney's fees to the successful party in a proceeding based on a violation of the Open Meetings Law. Respondents have not submitted any evidence from any person with knowledge to dispute the version of events offered by petitioners.
By decision dated April 22, 2010, the variance request was denied.
The decision does not contain any reasons but a 2 1/2 page transcript of the meeting has been submitted by respondent ZBA in which a ZBA member summarizes the requested variance, the factors to be considered in connection with the area variances, Town Law § 267-b.3(b) 1-5., and observes,
"I think the question is whether this is in the character of the neighborhood. It seems its going to be a large structure for whatever else is on the block."
Without any further discussion or deliberation, a vote was taken and the application was denied.
Petitioners' present application is supported by affidavits and numerous exhibits which they contend demonstrate that the evidence submitted to the ZBA with respect to the minimal nature of the request, the characteristics of the surrounding area, the granting of variances to others and the absence of objectants, overwhelmingly warrant the granting of the variances.
Petitioners also contend that the conduct of the proceedings demand an award of costs and legal fees pursuant to the Town Law § 267-c.2, which provides that costs of an appeal are not allowed unless it shall appear to the Court that the Board acted with gross negligence or in bad faith or with malice in making its decision.
In opposition the ZBA has submitted an answer, verified by counsel, an affirmation by counsel and a copy fo the ZBA file. Absent from the opposing papers are any affidavits or evidence from any employee or official of the Town or the ZBA. It is well settled that an attorney's affirmation that is not based on personal knowledge or supported by documentary evidence is of no probative value. Warrington v. Ryder Truck Rental, Inc., 35 AD3d 152 (2d Dept. 2006); Sampson v. Delaney , 34 AD3d 349 (1st Dept. 2006); cf Davey v. Dolan , 46 AD3d 854 (2d Dept. 2007). Here, the ZBA's attorney does not profess to possess personal knowledge of any facts asserted and has employed his affirmation as a vehicle to refer to matters in the ZBA file. Since the ZBA counsel has no personal knowledge of the events, the reach of counsel's contentions can extend no further than that which can be supported by the facts disclosed by the record.
A determination of a zoning board is administrative and quasi legislative in character and "rationality" is the appropriate standard of review. Matter of Sasso v. Osgood, 86 NY2d 374 385 (1986). Deference must be made to local officials who make judgments concerning land use on their community and courts may only set aside a zoning board determination when the record reveals that the board acted illegally or arbitrarily or abused its discretion. Matter of Pecoraro v. Board of Appeals Town of Hempstead , 2 NY3d 608 , 613 (2004).
In this Department a decision of a land use agency must be confirmed if it was rational and not arbitrary and capricious. A determination will be deemed rational if it has some objective factual basis as opposed to resting entirely on subjective considerations and a court should not consider whether there is "substantial evidence" within the meaning of CPLR § 7803(4), In the Matter of Halperin v. City of New Rochelle , 24 AD3d 768 , 770 (2d Dept. 2005). To be sure, a zoning board must balance and weigh statutory factors and base its decision on objective facts appearing in the record but unless the conduct rises to the level of the arbitrary and capricious standard, the determination must be confirmed, supra at 772. Cf Matter of Rendely v. Town of Huntington , 44 AD3d 864 , 866 (2d Dept. 2007), where the decision was found to be predicated upon conjecture and speculation.
The judicial responsibility is to review determinations of the ZBA to insure that there is a rational basis in the record and that legislative factors were considered but it is not the Court's function to make zoning decisions absent proof of arbitrary and unreasonable action. Matter of Merlotto v. Town of Patterson , 43 AD3d 926 (2d Dept. 2007).
In considering area variances, a zoning board must engage in a balancing test weighing the petitioner's interest against the interest of the neighborhood based on consideration of the factors delineated in Town Law § 267-b(3). Those factors are: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefits sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created. Matter of FNR Const. Corp. v. Downs , 57 AD3d 540 , 542-543 (2d Dept. 2008).
Here, the record is lacking in any evidence that the ZBA appropriately considered, weighed or balanced the above factors. Moreover, the evidence submitted by petitioners indicates that numerous similar variances requests have been granted.
A determination of a zoning board that 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, Bout v. Zoning Board of Appeals of Town of Oyster Bay , 71 AD3d 1014 (2d Dept. 2010); cf Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead , 71 AD3d 1028 (2d Dept. 2010) and a determination based solely on conjecture and speculation should not be allowed to stand. Rendely v. Town of Huntington, supra at 866.
There is nothing in the meager record of deliberations that the ZBA considered, weighted and applied the relevant statutory factors. CF Moore v. Town of Islip Zoning Board 70 AD3d 950 (2d Dept. 2010). The mere recitation of the factors as occurred here does not reflect any weighing or consideration of the statutory factors. Counsel contends that the condition was self created because the petitioners failed to amend their plans after the change in the building code. However, this consideration does not appear in either the public hearing or the transcript of deliberations. The self created factor is but one of five factors that must be considered and balanced and does not necessarily preclude the granting of an area variance. Caspian Realty Inc. v. Zoning Bd of Appeals of Town of Greenburgh , 68 AD3d 62 , 72 (2d Dept. 2009).
The record submitted to this Court does not demonstrate that the ZBA engaged in the required balancing test and considered the relevant statutory factors. See Roberts v. Wright , 70 AD3d 1041 (2d Dept. 2010).
Petitioners' claim for costs under Town Law § 267-c.2 is denied because they have not made a prima facie showing of entitlement to relief. The statute places the burden on the aggrieved petitioners to submit evidence showing that the conduct of the ZBA went beyond the commission of legal or factual error and requires either a showing of intent to do harm or such recklessness as would amount to the equivalent of intent. The record does not disclose conduct or actions that would support a finding that petitioners have made a prima facie showing of entitlement to relief on this issue. Hence, an award of costs is denied, despite the absence of any meaningful factual contradictions.
Likewise, the claim that petitioners' constitutional rights have been violated by some animus toward them or their proposals are based on speculation and conjecture.
The facts, even if accepted as true, do not form a predicate for a finding of damages for violation of petitioners' constitutional rights and even if such facts were found to be present, petitioners have not demonstrated that there are no other avenues available for a vindication of their rights. Martinez v. City of Schenectady, 97 NY2d 78 (2001). Specifically, the claims that a Town official intentionally delayed their application have no factual basis and the delays in scheduling a hearing or a date for a decision after the decision are not inordinately extensive. The ZBA has not controverted the factual contentions of the petitioners that they were locked out of and barred from attending the ZBA session which deliberated upon and voted on their application until after they created a disturbance which attracted the attention of the ZBA and/or ZBA personnel and the ZBA has not submitted evidence that its meeting constituted an "Executive Session" that was properly convened. See POL § 105.
The cornerstone of the Open Meetings Law is that decisions made by public bodies should be made publicly. The Open Meetings Law is violated when a quorum of a public body holds a private meeting for the purpose of transacting public business, thus making unavailable for public scrutiny that body's deliberative process. MCI Telecommunications Corp. v. Public Service Com'n of the State of NY 231 AD2d 284, 290-292 (3d Dept. 1997); Matter of Orange County Publs. v. Council of City of New burgh, 60 AD2d 409, 412-414,(2d Dept. 1978), affd 45 NY2d 947 (1978).
In Oshry v. Zoning Bd of Appeals of Inc. Village of Lawrence, 276 AD2d 491 (2d Dept. 2000) a violation of the Open Meetings Law was found where the notice was defective and a decision was announced without vote or discussion in a room that was inadequate in size.
The undisputed facts indicate the Open Meetings Law was violated by the failure of the ZBA to properly convene, give notice, and conduct an executive session and in initially barring access to its deliberative and voting session.
A Court may, in its discretion, annul an action taken in violation of the POL however here, the Court will not annul the determination of the ZBA based on the statutory violation because there are other sufficient reasons for doing so. See Cunney v. Board of Trustees of the Village of Grand View , 72 AD3d 960 (2d Dept. 2010).
Although the record does not rise to the level of compelling the voiding of the ZBA action on such grounds, a finding of a violation invokes this Court's discretion to award costs and reasonable attorneys' fees. POL § 107.2, thus, a hearing is necessary to determine the amount thereof to be awarded to petitioners.
The motion of the Town to dismiss is granted on the ground that the Town is not a proper party to this proceeding. As the Town correctly notes, the ZBA is a separate and distinct body established by the Town Law with defined powers. The ZBA has exclusive authority to act on zoning applications and to otherwise conduct its affairs. Commco Inc. v. Amelkin, 62 NY2d 260 (1984).
Although a zoning board has been held to be a necessary party in a proceeding such as this, the converse is not so. See Emmett v. Town of Emeston , 3 AD3d 816 (3d Dept. 2004), aff'd 2 NY3d 817 (2004).
Petitioners argue that Town employees were responsible for Open Meetings Law violation, however, the person who they identify is titled as an official of the ZBA and was clearly acting under the direction and control of the ZBA.
To the extent that petitioners might argue that a cause of action exists against the Town based on the allegations which complain of the building commissioner, the Court finds that those claims are conclusory, speculative, not supported by any facts and thus do not state a cause of action.
Petitioners' claim that the Town's motion to dismiss is not timely is unfounded. This proceeding was commenced on filing of the Notice of Petition which was on June 1, 2010 and service was made on June 2, 2010. The Town's motion to dismiss was served by mail on June 15, 2010. Since a motion on notice is made when a notice of the motion is served, the Town's motion to dismiss is timely. CPLR § 2211, Cruz v. New York City Housing Authority, 62 AD3d 643 (2d Dept. 2009).
In sum, the petition to annul the denial of the rejected variances is granted, the ZBA decision to deny the application is annulled and the variances are granted.
The request by petitioners for costs pursuant to Town Law § 267-c.2 is denied on the ground that petitioners have not made a prima facie showing of gross negligence, bad faith or malice.
The request for a declaration that the ZBA violated the Open Meetings Law by improperly convening and in part conducting an executive session barring access by petitioners is granted and the Court so declares that the conduct of the ZBA did violate the Open Meetings Law.
To the extent that the Court is empowered to void any action taken in violation of the Open Meetings Law, the Court declines to do so because petitioners were ultimately admitted and minutes of the session produced.
The petitioners' request for costs and reasonable attorneys' fees based on the Open Meetings Law violation is granted. Access to meetings of governmental bodies has been found by our legislature and courts to be an important right, especially where, as here, the meeting concerned the application of the parties denied access. It is consistent with and in keeping with the foregoing policy that the cost and expenses of enforcing such right be reimbursed to the petitioners, to encourage others to similarly seek enforcement and to discourage public bodies from violating the statute.
The claims against the Town are dismissed because petitioners have not stated a cause of action against the Town and because the facts do not support any claim that employees of the Town violated any rights of the petitioners or made any improper adverse decisions. The petitioners concede that they need a variance and do not dispute the denial of their permit application. The claim that the building commissioner somehow delayed their appeal is speculative and unsupported by sufficient facts.
This shall constitute the Decision and Order of this Court.