Opinion
No. 13–29760.
11-03-2014
The TRUSTEES OF the FREEHOLDERS AND COMMONALTY OF the TOWN OF EAST HAMPTON, Plaintiff–Petitioner, v. Mollie ZWEIG, the Zoning Board of Appeals of the Village of East Hampton, the Village of East Hampton, and the Department of Code Enforcement of the Village of East Hampton, Defendants–Respondents.
Eagan & Matthews, PLLC, East Hampton, for Petitioner. Esseks, Hefter & Angel, LLP, Riverhead, for Respondent Zweig. John C. Jilnicki, Town of East Hampton East Hampton.
Eagan & Matthews, PLLC, East Hampton, for Petitioner.
Esseks, Hefter & Angel, LLP, Riverhead, for Respondent Zweig.
John C. Jilnicki, Town of East Hampton East Hampton.
Opinion
ANDREW G. TARANTINO JR., J.
In this hybrid CPLR article 78 proceeding and declaratory judgment action, plaintiff/petitioner The Trustees of the Freeholders and Commonalty of the Town of East Hampton (“the Trustees”) seek to annul the final determination dated October 11, 2013 of the defendant/respondent The Zoning Board of Appeals of the Village of East Hampton (“the Village Zoning Board”) that approved a proposed revetment project for defendant/respondent Mollie Zweig (“Zweig”) on an area of ocean front beach, which the Trustees argue is owned and governed by them, as arbitrary, capricious, an abuse of discretion and contrary to law.
Zweig owns premises located at 11 West End Road, East Hampton, New York, which fronts the Atlantic Ocean. The premises is 99,534 square feet and is improved by a single-family residence and accessory structures. It is zoned Residence District R–160. Zweig successfully sought approval from the New York State Department of Environmental Conservation (“DEC”) and the defendant/respondent Village of East Hampton (“the Village”) for a proposed revetment project on the beach involving (i) the removal of an existing stone spur groin, (ii) the construction of a new 166–foot long rock revetment at the scarp line of the existing eroded dune, (iii) the restoration of the eroded dune with 4,000 cubic yards of compatible sand, (iv) the planting of beach grass on the restored dune, and (v) the installation of sand fencing within 15 feet of the seaward toe of the restored dune. Zweig obtained a Tidal Wetlands permit from the DEC on April 1, 2013 which authorized and required her to remove the existing stone groin and to construct a stone revetment using 10 to 100 pound bedding stone, 500 to 700 pound core stone and 5 to 9 ton cap/armor stone. The permit expires on April 1, 2018.
Zweig filed an application, on or about July 11, 2013, with the Village Zoning Board for variances from the requirements of Chapters 101 and 124 of the East Hampton Village Zoning Code (“Village Code”) governing activities in coastal erosion hazard areas and the preservation of dunes. Specifically, she sought a coastal erosion permit variance pursuant to Village Code § 101–8, and an area variance inasmuch as the proposed revetment would be located within 100 feet of the 15–foot contour line west of Old Beach Lane in contravention of Village Code § 124–1(A)(1) and within 150 feet of the southerly edge of beach grass along the Atlantic Ocean in contravention of Village Code § 124–1(A)(2)(c)).
Village Code § 101–12 entitled “Dune area restrictions” provides:
A. In primary dune areas:
(1) Excavating, grading or mining of primary dunes is prohibited.
(2) Clean sand of a compatible type and size is the only material which may be deposited. Any deposition requires a coastal erosion management permit.
(3) All depositions must be vegetatively stabilized using species tolerant to the conditions at the site and must be placed so as to increase the size of, or restore, a dune or dune area.
(4) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the Department.
(5) Nonmajor additions to existing structures are allowed on primary dunes pursuant to a coastal erosion management permit and subject to permit conditions concerning the location, design and potential impacts of the structure on the primary dune.
(6) Stone revetments or other erosion protection structures compatible with primary dunes will only be allowed at the waterward toe of primary dunes and must not interfere with the exchange of sand between primary dunes and their fronting beaches.
B. In secondary dune areas:
(1) All depositions must be of clean sand of a compatible type and size, and all grading must be performed so as to increase the size of, or restore, a dune or former dune area.
(2) Excavating, grading or mining must not diminish the erosion protection afforded by them.
(3) Nonmajor additions to existing structures are allowed on secondary dunes pursuant to a coastal erosion management permit.
(4) Permitted construction, reconstruction, restoration or modifications must be built on adequately anchored piling such that at least three feet of open space exists between the floor joints and the surface of the secondary dune; and the permitted activity must leave the space below the lowest horizontal structural members free of obstructions.
C. All other activities and development in dune areas are prohibited unless specifically provided for by this chapter.
The criteria for a variance from Chapter 101 (Coastal Erosion) are contained in Village Code § 101–19 and are as follows:
A. No reasonable, prudent, alternative site is available.
B. All responsible means and measures to mitigate adverse impacts on natural systems and their functions and values have been incorporated into the activity's design at the property owner's expense.
C. The development will be reasonably safe from flood and erosion damage.
D. The variance requested is the minimum necessary to overcome the practical difficulty or hardship which was the basis for the requested variance.
E. Where public funds are utilized, the public benefits must clearly outweigh the long-term adverse effects
Village Code § 124–1 in the chapter on Preservation of Dunes provides that:
A. Along the southerly boundary of the Incorporated Village of East Hampton between its westerly boundary and the westerly side of Old Beach Lane, the following restrictions shall apply:
(1) Every building and structure shall be located a minimum of 100 feet from a natural contour line nearest to mean high water and representing a natural elevation of 15 feet above mean high water. If not already existent, the height of the dunes at said point of construction shall be increased to a minimum elevation of 15 feet across the entire width of the lot along the ocean frontage, throughout the depth of the building or structure, by the addition of beach sand and the planting of beach grass and fencing in a manner which meets the approval of the Village Code Enforcement Officer. At no time shall fill be taken from the area between the fifteen-foot contour line and the Atlantic ocean to accomplish this requirement. For the purpose of this section, the mean high-water line shall be that line which marks the southerly edge of beach grass along the ocean beach.
(2) There shall be no disturbance of the area lying within 150 feet of the southerly edge of the beach grass along the Atlantic Ocean, including but not limited to:
(a) No clearing or grading of land.
(b) No digging, dredging, or excavating of land, or depositing fill or other material upon land.
(c)) No building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatever in or upon land.
(d) No clearing, removing, uprooting, burying, or otherwise damaging any vegetation, or replacing same with lawn, sod, or turf. This section shall not be deemed to include the planting of beach vegetation in a manner which does not disturb existing vegetation.
Zweig described the proposed rock revetment as extending across the entire oceanfront property with a 31–foot return on the east end, a 105–foot center portion, and a 35–foot return on the west end. She asserted that the only properties lacking a seawall within the 2000 feet of Atlantic Ocean shoreline between three properties east of the Village's Georgica Beach parking area and the first federal groin (jetty) to the west were her own property, a portion of the Town beach and the parcel to the west of her property. Zweig also asserted that her property experienced significant dune and beach avulsion related to coastal storm events since 2011 resulting in the loss of approximately 90 linear feet of dune and 3,200 cubic yards of dune sand. The Planning Consultant sent a letter dated August 17, 2013 informing the Village Zoning Board, among other things, that Zweig's proposed revetment project required variances from Village Code §§ 101–12(c)) (Dune Area Restrictions), 124–1(A)(1) and 124–1(A)(2)(c)), and that the Trustees have jurisdiction over the adjoining ocean beach. The Planning Consultant also provided a list of Type II Actions under 6 NYCRR 617.5 of the State Environmental Quality Review Act (“SEQRA”) and informed that no SEQRA review or determination is required for Type II Actions.
A public hearing on Zweig's application was held on September 13, 2013 and was continued on September 27, 2013. Among those who spoke at said hearings were Zweig's attorney, Zweig's expert, Aram Terchunian, a coastal geologist with First Coastal Corporation, Diane McNally, Clerk for the Trustees, and Zweig's abutting neighbor to the east, Anthony Manheim. By letter dated September 25, 2013, the Trustees submitted to the Village Zoning Board a copy of a deed dated June 30, 1902 by which the Trustees had deeded the subject property to Martha B. Philips consisting of land “southeasterly by the general line of grass growing along the southeasterly side of said banks.” By letter dated October 9, 2013, the Trustees urged that the Village Zoning Board's approval be conditioned on receipt of a Trustee permit and asserted that the surveys submitted by Zweig did not reflect the current location of the beach grass line to indicate the southerly boundary of the property. Zweig's abutting neighbor to the west, Joseph D. Scheerer, Jr. of J & W Realty Co., also submitted a letter voicing questions and concerns about the height, aesthetics and the potential negative effects of the construction of the proposed structure.
The Village Zoning Board rendered its final determination dated October 11, 2013 approving and permitting Zweig's proposed revetment project conditioned on the implementation of the sand replenishment maintenance program required by the DEC permit. It determined that Zweig required a coastal erosion variance for the removal of the stone groin and variances from Chapter 124 (Preservation of Dunes) for both the removal of the stone groin and the construction of the new revetment. The Village Zoning Board noted in its determination that the project had been classified as Type II under SEQRA, and that the hearing evidence showed that the stone groin to be removed was originally installed by the U.S. Army Corps of Engineers as part of a larger project involving the construction of a string of groins joined by a continuous revetment over a much wider area but that the connection was never constructed and the groin ultimately did not serve its planned purpose and its back side was exposed by Hurricane Irene and Superstorm Sandy resulting in significant dune and beach avulsion on the Zweig property and its immediate vicinity. Regarding the respective claims by the Trustees and Zweig to the land where the proposed revetment is to be located, the Village Zoning Board indicated that it has no jurisdiction to determine real property claims but that Zweig had sufficient legal basis to assert ownership thereby requiring the determination of her application on the merits.
Applying criteria for a variance from Chapter 101 (Coastal Erosion) in Village Code § 101–19, the Village Zoning Board found that (1) there was no reasonable or prudent alternative site available for the rock revetment to accomplish its proposed goal of building up and restoring the dune, noting that it would be located further landward than the existing seawalls located on either side of it; and (2) all responsible means and measures to mitigate adverse impacts on natural systems and their functions had been incorporated in that the revetment was designed to produce the smallest practicable footprint, would include a substantial dune restoration seaward of the revetment including the deposit of approximately 125 percent of the estimated volume of sand in the original dune and maintenance of the dune and beach grass as well as annual sand fencing to encourage the build-up of the dune. Applying criteria for “Area Variances” in Village Code § 278–7(c))(2) the Village Zoning Board found that: (1) the requested variances were the minimum necessary inasmuch as the nearby seawalls were nearer the ocean than the proposed revetment; (2) no undesirable change would be produced in the character of the neighborhood as the shoreline in the vicinity already has numerous seawalls and the existing groin, when exposed, constituted a hazard by interfering with the public's ability to freely traverse the beach and appeared counterproductive; (3) the requested area variance was not substantial as the proposed revetment was further landward than the other nearby seawalls; and (4) the proposed restoration of the dune, the project's ultimate goal, would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. The Village Zoning Board noted that it was attentive to expressed concerns that the placement of hard structures along the shoreline generally exacerbated natural erosion and accretion cycles, nevertheless it found that the benefits to Zweig outweighed said generalized concerns of a long-term detrimental effect on the surrounding shoreline by the proposed revetment.
Then, on or about October 21, 2013, defendant/respondent the Department of Code Enforcement of the Village of East Hampton issued a building permit for the revetment project. Thereafter, work began on the project.
On November 7, 2013, the Trustees commenced the instant hybrid CPLR article 78 proceeding and declaratory judgment action arguing, among other things, that the existing stone groin proposed to be removed is located seaward of the line of beach grass that serves as the southern deeded boundary line of Zweig's premises; that most, if not all, of the proposed revetment project is located southward of the southerly line of beach grass that delineates the southerly boundary line between the Village and the additional defendant the Town of East Hampton (“Town”) such that the Trustees own and govern, and have concurrent jurisdiction with the Town concerning, the area of the project; and, that Zweig had failed to obtain from them the necessary permits and approvals for the project. In addition, the Trustees argue that the Village Zoning Board's grant of a variance from Chapter 101 (Coastal Erosion) of the Village Code was arbitrary, capricious and contrary to law because it was granted in violation of SEQRA inasmuch as the proposed removal of the existing stone groin as an integral and necessary part of the proposed revetment project constitutes an “Unlisted Action” within the meaning of Chapter 133 (Environmental Quality Review) of the Village Code and not a Type II Action as claimed in the Village Zoning Board's October 11, 2013 determination. They also argue that the grant of the variances was arbitrary, capricious and contrary to law because the record and the determination lack any substantive discussion of “reasonable alternatives to the proposed activity” as required by Village Code § 101–8(a). The Trustees further argue that the Village Zoning Board's grant of variances from Chapter 124 (Preservation of Dunes) of the Village Code was arbitrary, capricious and contrary to law because the determination lacks a discussion concerning whether Zweig faced “practical difficulties or unique hardships” to be able to apply for a variance, and a discussion concerning whether each variance and whether the various elements of the proposed revetment project as opposed to the ultimate goal of the project will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood as required by Village Code § 278–7(C)(2)(a)(4).
The sixth to tenth causes of action of the complaint/petition relate to the instant CPLR article 78 proceeding. By their sixth cause of action, the Trustees seek a finding that the Village Zoning Board acted ultra vires in purporting to approve any portion of the proposed project that is outside of the Village Zoning Board's jurisdiction, and by their seventh cause of action, the Trustees seek a finding that the Village Zoning Board made an improper SEQRA determination. For an eighth cause of action the Trustees seek a finding that the failure to address or to require Zweig to demonstrate that the Village Code standard of “reasonable alternatives” to the proposed project are not feasible renders the Village Zoning Board's determination arbitrary and capricious and contrary to law. As a ninth cause of action, the Trustees seek a finding that the Village Zoning Board's determination is arbitrary and capricious and contrary to law for its failure to satisfy Village Code § 278–7(C)(2)(a)(4) by demonstrating that the proposed variance will not have an adverse effect or impact on the physical or environmental conditions of the neighborhood or district. Finally, for a tenth cause of action, the Trustees seek a finding that the Village Zoning Board's determination is arbitrary and capricious and contrary to law as it is unsupported by substantial evidence, the Zoning Board failed to perform a legal duty, it proceeded without or in excess of its jurisdiction, and it abused its discretion.
The Trustees by their first five causes of action of the complaint/petition seek a declaratory judgment (1) that the southerly boundary line of the subject premises is the southern line of beach grass; (2) that the Trustees have jurisdiction over the proposed project because of its location on property owned and governed by the Trustees; (3) that the Trustees have jurisdiction over the proposed project because the existing stone groin is located on property owned and governed by the Trustees; (4) that the Trustees have jurisdiction over the proposed project because it has the potential to impact the lands owned and governed by the Trustees; and, (5) that the jurisdictional boundaries of the Village and its boards and departments is the southern line of beach grass.
The Village Zoning Board, the Village and its Department of Code Enforcement submitted an answer and a record of the proceedings before the Village Zoning Board, and the Town of East Hampton and its Zoning Board of Appeals submitted an answer.
During the hearing held before this Court on February 27, 2014 with respect to motions then pending on this matter, it was ascertained that Zweig submitted an application for approval of the proposed revetment project, with reservation of rights, to the Trustees on February 24, 2014 for their consideration at their meeting held the following day but that there was no definitive date as to when the application would be processed and considered; that the Trustees had recently approved the request of Zweig's neighbor to the east to replenish the sand in the area of an existing rock revetment; and that the Trustees have previously approved numerous other revetment and/or replenishment projects along the shoreline in addition to the recently approved project immediately adjacent to the Zweig property. By order dated March 3, 2014, this Court, among other things, denied the request of the Trustees for a preliminary injunction to stay, enjoin and/or restrain work on the proposed revetment. By decision and order dated March 12, 2014, the Appellate Division, Second Department denied the Trustees' motion to enjoin Zweig from constructing the rock revetment pending the hearing and determination of the Trustees' appeal from this Court's March 3, 2014 order.
Local zoning boards have broad discretion in considering applications for variances, and their determinations will generally be set aside “only if the zoning board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community opposition” (Matter of Ramundo v. Pleasant Val. Zoning Bd. of Appeals, 41 AD3d 855, 858, 839 N.Y.S.2d 189 [2d Dept 2007] ; see Matter of DAG Laundry Corp. v. Board of Zoning Appeals of Town of North Hempstead, 98 AD3d 740, 950 N.Y.S.2d 389, 389–390 [2d Dept 2012] ). “When reviewing the determinations of a Zoning Board, courts consider substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination” (Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384 n. 2, 633 N.Y.S.2d 259 [1995] ; see Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949, 910 N.Y.S.2d 123 [2d Dept 2010] ; see also Matter of Campbell v. Town of Mount Pleasant Zoning Bd. of Appeals, 84 AD3d 1230, 1231, 923 N.Y.S.2d 699 [2d Dept 2011] ). It so follows that the determination of a zoning board should be sustained upon judicial review if it is not illegal or arbitrary and capricious, and it has a rational basis (see Matter of Sasso v. Osgood, 86 N.Y.2d at 384, 633 N.Y.S.2d 259 ; Matter of Carrano v. Modelewski, 73 AD3d 767, 899 N.Y.S.2d 634 [2d Dept 2010] ).
The Trustees allege in their sixth cause of action that the Village Zoning Board acted ultra vires in purporting to approve any portion of the proposed revetment project that is outside of the Village Zoning Board's jurisdiction. The Trustees assert jurisdiction over the beach lands between the high water mark and the average southerly line of beach grass on the beach of the Atlantic Ocean citing Macklowe v. Trustees of Freeholders and Commonality of Town of East Hampton, 34 Misc.3d 1237(A), 950 N.Y.S.2d 723 (Sup Ct, Suffolk County 2012), affd 110 AD3d 964, 973 N.Y.S.2d 569 (2d Dept 2013), lv denied 22 NY3d 861, 982 N.Y.S.2d 443 (2014). They argue that the record confirms that the site of the proposed revetment project at the scarp line of the existing dune is seaward of the southern line of beach grass. However, the surveys in the record submitted by Zweig do not support said assertion. Inasmuch as the Trustees did not submit any evidence, such as a survey, indicating what portion of the proposed revetment project was allegedly outside of the Village Zoning Board's jurisdiction, they have failed to demonstrate that the Village Zoning Board acted ultra vires. Therefore, the sixth cause of action is dismissed.
With respect to the seventh cause of action alleging that the Village Zoning Board made an improper SEQRA determination, the Court notes that “SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making” (Matter of Coca–Cola Bottling Co. of N.Y. v. Board of Estimate of City of NY, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33 [1988] ). Inasmuch as SEQRA contains no provision regarding judicial review, courts apply the standard governing proceedings pursuant to CPLR article 78 for the review of administrative determinations (see Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298 [1986] ; Matter of Baker v. Village of Elmsford, 70 AD3d 181, 187, 891 N.Y.S.2d 133 [2d Dept 2009] ). Thus, the Court's authority “is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. The relevant question before the court is whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” (Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164 [1996] [internal quotation marks omitted]; see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231–232, 851 N.Y.S.2d 76 [2007] ; Matter of Zutt v. State, 99 AD3d 85, 100, 949 N.Y.S.2d 402 [2d Dept 2012] ).
Here, the Village Zoning Board in classifying the proposed revetment project as a Type II action did not provide any explanation for said determination but appears to have relied on the August 17, 2013 letter of its Planning Consultant contained in the Village Zoning Board's record. No other document in the Village Zoning Board's record mentions SEQRA, including the Tidal Wetlands Permit and related documentation issued by the DEC. The August 17, 2013 letter of the Planning Consultant listed the following Type II Actions under 6 NYCRR 617.5 of SEQRA: (1) maintenance of existing landscaping or natural growth; (2) construction, expansion or placement of minor accessory/appurtenant residential structures, including garages, carports, patios, decks, swimming pools, tennis courts, satellite dishes, fences, barns, storage sheds or other buildings not changing land use or density; (3) granting of individual setback and lot line variances; (4) granting of an area variance (s) for a single-family, two-family or three-family residence; and (5) minor temporary uses of land having negligible or no permanent impact on the environment. Although the proposed project involves restoration of the eroded dune and the planting of beach grass on the restored dune, the project as a whole cannot be characterized as mere “maintenance of existing landscaping or natural growth.” In addition, the construction of a new 166–foot long rock revetment cannot be considered an “expansion or placement of minor accessory/appurtenant residential structures” and does not resemble any of the listed examples of such structures. Also, the requested variances cannot be characterized as “individual setback and lot line variances” or area variances for the purposes of a single-family, two-family or three-family residence. Nor can the proposed project be characterized as “minor temporary uses of land having negligible or no permanent impact on the environment.” Thus, the record provides no “reasoned elaboration of the basis for” the Village Zoning Board's determination that the proposed rock revetment project is a Type II action under SEQRA (Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d at 688, 642 N.Y.S.2d 164 [internal quotation marks omitted]; see Matter of Zutt v.. State, 99 AD3d at 100–101, 949 N.Y.S.2d 402 ; 6 NYCRR 617.5 [c] ). Moreover, contrary to the assertions of the Village Zoning Board, the challenge to the SEQRA determination is timely inasmuch as the instant proceeding was commenced within one month, on November 7, 2013, of the filing of the Village Zoning Board's SEQRA determination on October 11, 2013 (see Village Law § 7–712 ; Matter of Kroll v. Village of East Hampton, 293 A.D.2d 614, 741 N.Y.S.2d 98 [2d Dept 2002] ). As for the assertion that the issue of SEQRA deficiencies was not raised at the hearing and thus cannot be challenged in this CPLR article 78 proceeding, a challenge may be made at the hearing or by petition in a CPLR article 78 proceeding (see Matter of Sisco v. Board of Trustees of the Village of Haverstraw, 288 A.D.2d 230, 732 N.Y.S.2d 377 [2d Dept 2001] ; cf. Matter of Old Dock Assocs. v. Sullivan, 150 A.D.2d 695, 541 N.Y.S.2d 569 [2d Dept 1989] ).
The Court notes that in her opposition papers to the petition, Zweig has submitted a copy of her application to the DEC for a Tidal Wetlands Permit, which is not part of the Village Zoning Board's record, and that said application indicates that the proposed project is a Type II action. However, it is unclear from a review of the contents of the application whether the DEC actually classified or made a determination that the proposed project is a Type II action.
A petitioner prevailing in a proceeding pursuant to CPLR article 78 challenging a SEQRA determination is entitled to have that determination aned (see Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 N.Y.2d 373, 383, 583 N.Y.S.2d 170 [1992] ; Matter of Baker v. Village of Elmsford, 70 AD3d at 190, 891 N.Y.S.2d 133 ). Therefore, the Trustees are entitled to relief pursuant to CPLR article 78 aning solely that portion of the Village Zoning Board's determination that the proposed revetment project is a Type II action (see Matter of Zutt v. State, 99 AD3d at 102, 949 N.Y.S.2d 402 ).
In reviewing an application for an area variance, a zoning board is required to engage in a balancing test “weigh[ing] the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted” (Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 612, 781 N.Y.S.2d 234 [2004] ; see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307, 746 N.Y.S.2d 667 [2002] ; Matter of Goldberg v. Zoning Bd. of Appeals of City of Long Beach, 79 AD3d 874, 876, 912 N.Y.S.2d 668 [2d Dept 2010] ; Matter of Jonas v. Stackler, 95 AD3d 1325, 1327, 945 N.Y.S.2d 405 [2d Dept 2012], lv denied 20 NY3d 852, 957 N.Y.S.2d 689 [2012] ). A zoning board must also consider “(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 benefit 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, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7–712–b[3][b] ; see Matter of Quintana v. Board of Zoning Appeals of Inc. Village of Muttontown, ––– AD3d ––––, 992 N.Y.S.2d 332 [2d Dept 2014] ; Village Code § 278–7[C][2] ).
“The judicial function in reviewing such determinations is limited and a reviewing court should refrain from substituting its own judgment for the judgment of the zoning board” (Matter of Goldberg v. Zoning Bd. of Appeals of City of Long Beach, 79 AD3d at 877, 912 N.Y.S.2d 668 ; see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d at 613, 781 N.Y.S.2d 234 ; Matter of Halperin v. City of New Rochelle, 24 AD3d 768, 772, 809 N.Y.S.2d 98 [2d Dept 2005] ; see also Matter of Jonas v. Stackler, 95 AD3d at 1327, 945 N.Y.S.2d 405 ). “Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion” (Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d at 613, 781 N.Y.S.2d 234 ; see Matter of Jonas v. Stackler, 95 AD3d at 1327, 945 N.Y.S.2d 405 ).
Here, the Village Zoning Board did address Village Code § 101–19(A) under the criteria for variances from Chapter 101 (Coastal Erosion) finding that there was no reasonable or prudent alternative site available for the rock revetment to achieve its proposed goal of building up and restoring the dune, noting that it would be located more landward than the seawalls located on either side of it. The Court notes that Village Code § 101–19(A) relates to location, that “[n]o reasonable, prudent, alternative site is available,” and does not relate to the physical content or structure of the project. The Trustees argue that the Village Zoning Board should have initially considered the first prong of Village Code § 101–8 concerning the general standards for the issuance of a coastal erosion management permit that “the proposed regulated activity: A. Is reasonable and necessary, considering reasonable alternatives to the proposed activity and the extent to which the proposed activity requires a shoreline location.” They assert that the Village Zoning Board should have considered reasonable alternatives to the proposed project such as allowing the beach to naturally replenish itself or solely undertaking a dune replenishment project. The Village Zoning Board did note however in its determination that Village Code § 101–12(A)(6) allows stone revetments or other erosion protection structures compatible with primary dunes located at the waterward toe of primary dunes which do not interfere with the exchange of sand between primary dunes and their fronting beaches, which criteria the subject proposed project met, such that a coastal erosion permit is allowed without any variance. Inasmuch as the proposed project was compatible, there was no need to consider reasonable alternatives. In any event, the Village Zoning Board acknowledged concerns expressed at the hearing that placing hard structures along the shoreline exacerbated natural erosion and accretion cycles but determined that the benefits to Zweig outweighed said generalized concerns. Therefore, the Village Zoning Board's determination is not arbitrary and capricious and contrary to law on said basis and the eighth cause of action is dismissed.
In addition, the Village Zoning Board did satisfy the requirement of Village Code § 278–7(c))(2)(a)(4) which requires consideration of “[w]hether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.” The Trustees challenge as inadequate the Village Zoning Board's determination that the project's ultimate goal, the proposed restoration of the dune, rather than each proposed variance for the removal of the stone groin and the construction of the revetment, would not have an adverse effect or impact. Whatever the semantics used by the Village Zoning Board to characterize the proposed project's non-conformance to Code requirements or ultimate effect, the record shows that Zweig presented expert testimony from her coastal geologist indicating that the proposed plan, as sanctioned by the DEC, would not affect the character of the neighborhood or have an adverse impact on the physical or environmental conditions, whereas those who opposed the application, such as the Trustees, presented no evidence on the matter (compare Matter of Jonas v. Stackler, 95 AD3d at 1328, 945 N.Y.S.2d 405 ). Notably, the coastal geologist emphasized at the hearings that the DEC required removal of the stone groin as part of the project, that its original purpose as part of a larger structure had been rendered obsolete, and that its removal was necessary because in its current state it is partially exposed and beginning to disintegrate, it is not serving any protective purpose, and it constitutes a potential hazard to beach-goers. He believed that the environmental impact would be minimal in the removal of the stone groin as the area where stones were set in the sand would be replaced by sand. As for the proposed revetment, the coastal geologist explained that it would be installed just seaward of the crest, meaning on the slope, of the existing dune such that it would be lying against the dune, that it would require excavation but that the line of the crest of the dune would remain unchanged, and that there would be a large seaward dune restoration. The Trustees also assert that Zweig failed to demonstrate “practical difficulties or unique hardships in the way of carrying out the strict letter of” Chapter 124 (Preservation of Dunes) under Village Code § 124–5 to be entitled to apply for a variance pursuant to Village Code § 278–7. However, the Village Zoning Board addressed this issue when it determined that the proposed revetment “cannot be located outside the 100–foot dune setback requirement of Chapter 124 and still accomplish its goal of building up and restoring the dune.” Therefore, the Village Zoning Board's determination is not arbitrary and capricious and contrary to law on said bases and the ninth cause of action is dismissed.
As for the tenth cause of action, the Court finds that the Village Zoning Board's determination is unsupported by substantial evidence solely with respect to its SEQRA determination. Thus, the matter is remitted to the Village Zoning Board for further proceedings on Zweig's application solely concerning SEQRA (see Matter of Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 [2003] ; Matter of Fleck v. Town of Colden, 16 AD3d 1052, 792 N.Y.S.2d 281 [4th Dept 2005] ).
Inasmuch as the parties did not address the first five causes of action in the complaint/ petition, the Trustees' action for a declaratory judgment is hereby severed and continued against the defendants/respondents (see CPLR 603 ; Matter of Schonbrun v. Board of Zoning Appeals of Town of N. Hempstead, 239 A.D.2d 508, 658 N.Y.S.2d 961 [2d Dept 1997] ).
Submit judgment on the petition for CPLR article 78 relief.