Calendar Date: March 29, 2018Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ.__________Douglas H. Zamelis, Cooperstown, for appellant.Martin H. Tillapaugh, Cooperstown, for respondents.__________Egan Jr., J.Appeal from a judgment of the Supreme Court (Burns, J.),entered August 14, 2017 in Otsego County, which dismissedpetitioner’s application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Village ofCooperstown Zoning Board of Appeals denying petitioner’s requestfor, among other things, an area variance.Petitioner is a domestic limited liability company thatowns certain real property located at 25 Chestnut Street in theVillage of Cooperstown, Otsego County. The property is locatedin the Village’s business zoning district and consists of a twofloorstructure with a dental office on the ground floor and tworesidential apartments — a one-bedroom unit and a two-bedroomunit — on the second floor. In December 2016, petitionersubmitted an application to respondent Village of CooperstownZoning Enforcement Officer (hereinafter the ZEO) seeking atourist accommodation special use permit that would allow it torent the property’s two-bedroom apartment as a “touristaccommodation” — i.e., a short-term rental of seven days or less,as opposed to the otherwise applicable 30-day minimum rental.The ZEO denied petitioner’s application for a special use permiton the ground that the property was not “owner-occupied,” asrequired by the Code of the Village of Cooperstown.In March 2017, petitioner appealed to respondent Village ofCooperstown Zoning Board of Appeals (hereinafter the ZBA) for,among other things, approval of its special use permit and anarea variance relieving petitioner from the owner-occupancyrequirement applicable to tourist accommodations. On May 8,2017, following a public hearing, the ZBA denied petitioner’sappeal determining, among other things, that it was not entitledto an area variance relieving it from the applicable owneroccupancyrequirement. As a result, petitioner thereafterconveyed a 25% ownership interest in the subject property to thetenant of its one-bedroom apartment and, on May 16, 2017,submitted a second application to the ZBA seeking a special usepermit based on the fact that the property was now in compliancewith the requisite owner-occupancy requirement.1 Followinganother public hearing on June 6, 2017, the ZBA granted thesecond application and issued petitioner a tourist accommodationspecial use permit. Two days later, petitioner commenced thisCPLR article 78 proceeding seeking, among other things, adetermination that the ZBA erred in denying its initialapplication for an area variance. Respondents answered,contending, among other things, that because petitioner’s secondapplication for a tourist accommodation special use permit wasgranted, petitioner had obtained the precise relief that it hadpreviously requested in its initial application, therebyrendering this proceeding moot. Supreme Court agreed withrespondents and dismissed the petition as moot. Petitioner nowappeals.Initially, we disagree with Supreme Court’s determinationthat the ZBA’s June 2016 grant of petitioner’s touristaccommodation special use permit rendered this CPLR article 78proceeding moot. Generally speaking, a proceeding will not berendered moot where “the rights of the parties will be directlyaffected by the determination of [the proceeding] and theinterest of the parties is an immediate consequence of thejudgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714[1980]; accord Truscott v City of Albany Bd. of Zoning Appeals,152 AD3d 1038, 1039 [2017]; Matter of City of Glens Falls v Townof Queensbury, 90 AD3d 1119, 1120 [2011]).Here, the property rights that attach upon the issuance ofan area variance compared to the issuance of a special use permitare distinct (compare Village Law § 7-712-b [3] and Code of theVillage of Cooperstown §§ 300-66 [C] [1], with Village Law § 7-725-b and Code of the Village of Cooperstown § 300-84). Theissuance of a tourist accommodation special use permit requires,among other things, that an applicant comply with the Code’sowner-occupancy requirement and that each applicant renew theirregistration on an annual basis (see Code of the Village ofCooperstown § 300-17 [A] [1] [a], [d]; [4] [a]). The issuance ofan area variance, on the other hand, would vest petitioner withan immediate property right relieving it from the Code’s owneroccupancyrequirement, without any corresponding temporallimitation or renewal requirement (see Code of the Village ofCooperstown § 300-66 [C] [1]). Moreover, the issuance of “avariance is not personal to the owner-applicant; it runs with theland” (Matter of Johnson v Town of Queensbury Zoning Bd. ofAppeals, 8 AD3d 741, 743 [2004] [internal quotation marks,brackets and citation omitted]; see Matter of St. Onge v Donovan,71 NY2d 507, 520 [1988]). Thus, a judicial determination inpetitioner’s favor would immediately vest petitioner with aproperty right greater and more valuable than what it presentlypossesses. Contrary to respondents’ assertion, therefore, theissuance of the June 2016 special use permit did not grantpetitioner the exact same relief that it requested in its initialapplication before the ZBA. Accordingly, we find that themootness doctrine was not implicated by the ZBA’s subsequentgrant of petitioner’s tourist accommodation special use permit(see Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie,126 AD3d 1094, 1095-1096 [2015]; Matter of City of Glens Falls vTown of Queensbury, 90 AD3d at 1120).Turning to the merits, petitioner contends that the ZBA’sdetermination denying its application for an area variance fromthe owner-occupancy requirement for tourist accommodationsconstituted an abuse of discretion inasmuch as the recordestablishes that the ZBA succumbed to generalized communitypressure and failed to, among other things, consider thesubstantial economic benefit to petitioner or otherwise cite toany evidence that the variance would negatively impact thehealth, safety and welfare of the neighborhood or community. Itis well-settled that “[l]ocal zoning boards have broad discretionin considering applications for variances, and judicial review islimited to determining whether the action taken by the board wasillegal, arbitrary or an abuse of discretion” (Matter of Ifrah vUtschig, 98 NY2d 304, 308 [2002]; accord Matter of RehabilitationSupport Servs., Inc. v City of Albany Bd. of Zoning Appeals, 140AD3d 1424, 1425 [2016]; Matter of Schaller v Town of New PaltzZoning Bd. of Appeals, 108 AD3d 821, 824 [2013]). “Indetermining whether to grant an area variance, a zoning boardmust weigh the benefit to the applicant against the detriment tothe health, safety and welfare of the neighborhood or communityif the variance is granted and must also consider five statutoryfactors” (Matter of Russo v City of Albany Zoning Bd., 78 AD3d1277, 1279 [2010] [citations omitted]; see Village Law § 7-712-b[3] [b]; cf. Matter of Fund for Lake George, Inc. v Town ofQueensbury Zoning Bd. of Appeals, 126 AD3d 1152, 1154 [2015], lvdenied 25 NY3d 1039 [2015]).2 So long as a zoning board’sdetermination has a rational basis and is fully supported by therecord, it will not be disturbed upon judicial review (see Matterof Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608,613 [2004]; Matter of Ifrah v Utschig, 98 NY2d at 308; Matter ofEdscott Realty Corp. v Town of Lake George Planning Bd., 134 AD3d1288, 1290 [2015]).At the May 2017 hearing, petitioner’s attorney raised — andthe ZBA considered — all five of the relevant statutoryprovisions in considering the merits of petitioner’s applicationfor an area variance (see Village Law § 7-712-b [3] [b]; Code ofthe Village of Cooperstown § 300-66 [C] [1] [b]). Thesubstantial nature of the requested variance was referenced atthe outset of the ZBA’s deliberation on the application, as wellas numerous other times throughout the hearing. Susan Snell, thechair of the ZBA, indicated that the applicable owner-occupancyrequirement served as the “cornerstone” of the touristaccommodation special use permit insofar as it is the primarycontrol mechanism relied upon for purposes of reducing orattempting to reduce the negative impact of short-term ortransient rentals (i.e., noise and disturbance complaints) in theVillage.3 The ZBA considered that, if petitioner’s area variancewere granted, there would be no point of contact on location todeal with any problems or issues that arose during any subsequentshort-term rentals. The ZBA further noted that, althoughpetitioner’s members own and operate the business next door, thisdid not provide an adequate safeguard to mitigate the relevantissues. The Village attorney, in his responding affirmation,also indicated that, upon enactment of the owner-occupancyprovision, there was “an immediate and nearly total reduction inthe number of noise and disturbance complaints received inrelation to short[-]term rentals because the owner, having avested interest, is present to address problems.”The ZBA further recognized that petitioner stood to earnmore income should the area variance be granted; however, itconcomitantly recognized that these economic benefits could beachieved by methods other than granting an area variance –namely, petitioner “living there” at the property, in compliancewith the owner-occupancy requirement. Even assuming petitioner’scompliance with the owner-occupancy requirement was somehowinfeasible, the ZBA noted that it would not serve to denypetitioner all economic benefit as petitioner was not precludedfrom continuing its historic practice of leasing the premises asa long-term rental (see Matter of Smelyansky v Zoning Bd. ofAppeals of the Town of Bethlehem, 83 AD3d 1267, 1269-1270[2011]).4 Moreover, the ZBA rationally determined that anyalleged difficulty or hardship was self-created. Snell indicatedthat tourist accommodation special use permits have beenissued/allowed in the business district dating back to 1989, andthe Village attorney averred that the present owner-occupancyrequirement was adopted in 2003, prior to petitioner acquiringthe subject property (see Matter of Bivona v Town of PlattekillZoning Bd. of Appeals, 268 AD2d 877, 880-881 [2000]; cf. Matterof Rehabilitation Support Servs., Inc. v City of Albany Bd. ofZoning Appeals, 140 AD3d at 1426; Matter of Center Sq. Assn.,Inc. v City of Albany Bd. of Zoning Appeals, 19 AD3d 968, 971[2005]).Given the sparsity of evidence that granting the areavariance would produce an undesirable change in the character ofthe neighborhood or detrimentally affect nearby properties, andthe ZBA’s acknowledgment that granting same would not have anyadverse affect on the physical or environmental condition of theneighborhood, the applicability of the statutory factors wasfairly evenly split. Courts, however, should “not engage intheir own balancing of the factors, but must yield to the ZBA’sdiscretion and weighing of the evidence” (Matter of Fund for LakeGeorge, Inc. v Town of Queensbury Zoning Bd. of Appeals, 126 AD3dat 1155), “even if the court would have decided the matterdifferently in the first instance” (Matter of Smelyansky v ZoningBd. of Appeals of the Town of Bethlehem, 83 AD3d at 1268).Accordingly, although the ZBA’s resolution failed to set forthits specific factual findings, a review of the minutes of the May2017 hearing and the ZBA’s papers filed in response to theinstant CPLR article 78 petition (see Matter of Fund for LakeGeorge Inc. v Town of Queensbury Zoning Bd. of Appeals, 126 AD3dat 1154; Matter of Ohrenstein v Zoning Bd. of Appeals of Town ofCanaan, 39 AD3d 1041, 1043 [2007]; Matter of Iwan v Zoning Bd. ofAppeals of Town of Amsterdam, 252 AD2d 913, 914 [1998])establishes that the ZBA appropriately applied the relevantbalancing test and considered all five applicable statutoryfactors. Accordingly, we find that the ZBA’s decision to denypetitioner’s application for an area variance was not irrational,arbitrary or an abuse of discretion and, therefore, we decline todisturb its determination (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d at 615; Matter of Braunsteinv Board of Zoning Appeal of the Town of Copake, 100 AD3d 1091,1093-1094 [2012]).Garry, P.J., Devine, Aarons and Rumsey, JJ., concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
