The following electronically filed papers were read upon these motions: Notice of Motion/Order to Show Cause 1-10 Answering Papers 14-52 Reply 53 For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner owns property known as 301 Marine Boulevard, Amagansett, New York. On the subject property sits a single-family, oceanfront residence. The house was built more than sixty (60) years ago. The petitioner, his wife and two minor children reside at the subject property year-round, and the two children attend local public school. Petitioner applied to the Zoning Board of Appeals (ZBA) for a Natural Resources Special Permit (NRSP) and two setback variances from the primary dune crest, necessary to petitioner to build a two-story addition on the landward side of his existing house, the primary purpose of which is to improve living and sleeping arrangements for the petitioner’s two minor children. It is the May 24, 2022 ZBA determination that is challenged in this proceeding as being arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence in the record. On May 4, 2021, the Zoning Board held a public hearing on the merits of petitioner’s application. Following testimony taken thereat, the Board moved to reserve decision and leave the record open. On February 15, 2022, the Zoning Board held a continuation hearing to resolve open issues on petitioner’s application, and additional testimony was taken. At the conclusion of the continued hearing, the Board moved to reserve decision. On May 24, 2022, the Board unanimously adopted the written resolution denying petitioner’s application in all respects. This proceeding to vacate and annul the determination was commenced on June 24, 2022. The Court recognizes that zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action by the board was illegal, arbitrary, or an abuse of discretion (Matter of Traendly v. Zoning Board of Appeals of Town of Southold, 127 AD3d 1218, 1218 [2d Dept 2015] [internal quotation marks omitted]; Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608 [2004]; Hurley v. Zoning Board of Appeals of Village of Amityville, 69 AD3d 940 [2d Dept 2010]; CPLR §7803 [3]). A court reviewing a board’s determination on a variance “is bound to examine only whether substantial evidence supports the determination of the board. Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record” (Retail Property Trust v. Board of Zoning Appeals, 98 NY2d 190, 196 [2002]). “[T]he determination of the zoning board should be upheld if it has a rational basis supported by evidence in the record” adduced at a public hearing of the matter (Matter of Green Materials of Westchester v. Town of Cortlandt, 132 AD3d 868, 871[2d Dept 2015]; CPLR §7803 [4]). “When considering an application for an area variance, a town zoning board must engage in a balancing test, weighing the benefit to the applicant if the variance is granted against the detriment to the health, safety, and welfare of the neighborhood or community” (Matter of Petikas v. Baranello, 78 AD3d 713, 714 [2d Dept 2010]). “The zoning board is also required to consider whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty is self-created. While the last factor is not dispositive, it is also not irrelevant” (Pecoraro, supra at 612-613). The application that was denied by the May 24, 2022 determination was apparently a scaled-down version of a 2018 application brought by the petitioner. The earlier 2018 application was denied, but the petitioner did not appeal that determination. In its findings of fact, the ZBA acknowledged that the prior application’s additions were “slightly more seaward,” but that “[t]he current application is proposing all additions to extend northward from the existing north wall and the bulk of the additions are located sightly ore north on the property than the 2018 application.” In other words, the subject application proposes that the bulk of the additions are landward, not seaward. In its May 24, 2022, the ZBA revisited its 2018 determination, citing that the then-proposed change would have caused an undesirable change in the character of the neighborhood, and that the expansion of the residence “made the property a better candidate for retreat rather than expansion in its current location.” According to the ZBA, “[t]he current application before the Board triggers the same concerns as the previous application…” but it also found that “[t]he property, in its current configuration, is best for only a small addition on the landward side of the residence. The Board recognized that the above referenced fifty percent (50) expansion cap ([Town Code] §255-8-60) is the allowable limit that the Board is permitted, but not compelled, to approve. In short, the 50 percent cap is not a guarantee.” While acknowledging that the proposed addition is under that cap, the ZBA found that the “current application is not significantly different that the application denied in 2018.” Relying on that same finding, the ZBA made a finding that the application lends itself to a “complete relocation of the residence.” The ZBA did not elaborate on what they meant by a “small addition” that would be “best.” The failure to specify what it meant is emphasized by the ZBA’s citation to Town Law §267-b (3) that “directs the Board, in granting area variances, to ‘grant the minimum variance that it shall deem necessary and adequate…” Furthermore, the ZBA cited to that same Code provision in listing the five statutory considerations to determine whether to grant an area variance: 1) whether an undesirable change will be produced in the character of the neighborhood/detriment to nearby properties; 2) whether the benefit sought can be achieved by some other method; 3) whether the requested area variance is substantial; 4) whether the proposed variance will have an adverse effect on physical or environmental conditions; and 5) whether the alleged difficulty was self-created. In this Court’s view, the ZBA’s findings related to the first, second, fourth, and fifth factors are not supported by the record, and are also arbitrary and capricious; therefore, although the requested variance may have been substantial, that factor, standing alone, does not demonstrate that the ZBA engaged in the required balancing test. In enumerating the factors considered in the determination to deny the area variances requested (Section G of May 24, 2022 Determination), the first such factor states that, “[t]he Board finds that granting the requested variances will cause an undesirable change to the character of the neighborhood and create a detriment to nearby properties.” That is the sum total of the ZBA’s finding related to that factor despite the two letters endorsing petitioner’s application, one from each of the neighbors on either side of petitioner’s property, that were made part of the hearing record. Moreover, an updated Coastal Processes and Erosion Technical Analysis in Support prepared by Robert Grover, petitioner’s expert, was part of the record. Grover’s unchallenged report states that there would be no physical change or impacts to the neighborhood resulting from the proposed addition. The finding made concerning the second factor (other feasible method) seemingly ignores the detailed explanation as to why petitioner’s house cannot be relocated/completely redeveloped significantly more landward on the property. The cogent explanation as to the impossibility of relocation/redevelopment was provided in writing and at the two public hearings. The petitioner’s property slopes downward from twenty feet above sea level at the primary dune crest to only approximately eight feet above sea level as one proceeds north/landward on the property. Due to FEMA requirements based on the flood zone in which the subject property is located, the first floor of any relocated house would have to be raised to at least seventeen feet above sea level, which would then put that house in violation of the Town’s Zoning Code height limits, thereby requiring a height variance. This proposed relocation/redevelopment would also ensure that the relocated structure would be violative of the Town’s Pyramid Law setbacks, thereby requiring more variances, none of which can be guaranteed by the ZBA. In addition, the petitioner could not build a larger, one-story house with a larger footprint to avoid the height issues because New York State’s Department of Environmental Conservation (DEC) will not allow a new house within the Coastal Erosion Hazard Area (CEHA) to exceed the existing ground area coverage of the existing structure, and petitioner’s entire property is in the CEHA area. Petitioner brought to the ZBA’s attention, however, that the DEC did approve petitioner’s proposed house addition, considering it to be a “non-major addition” under CEHA regulations since it results in an increase of less than 25 percent of ground area coverage. There is no discussion of the foregoing in the ZBA determination sought to be annulled, nor does the ZBA address these particular arguments appearing in petitioner’s papers which undermine the ZBA’s preferred alternative. The finding as to the fourth factor, that the requested variances “will have an adverse effect and impact on the physical or environmental conditions in the neighborhood” because petitioner’s residence is “one of the closest houses to the primary dune crest” is arbitrary and capricious since the bulk of the proposed addition is to the north/landward side of the residence, not out onto the dune crest, and Robert Grover’s unrebutted report states that “concerns regarding coastal processes are unfounded.” The ZBA also listed without explanation its finding that the need for the variance “is self-created,” which apparently refers to the petitioner deciding to marry and have two children over the intervening years since he purchased the house as an unmarried person without children in the year 2000, although the ZBA fails to set forth any reasoning for this finding. Finally, it appears that there may be a factual error in the statement that the residence is located only fifteen feet landward of the dune crest, when the survey of the property depicts it as being nineteen feet landward of the dune crest. In terms of the determination to deny the NRSP, the ZBA makes essentially the same findings as it did in denying the requested variances. Once again, the ZBA finds that “the property would best be suited for a complete redevelopment with a larger residence located significantly more landward on the property.” There is no basis for the finding that “adequate buffer yards and screening cannot and will not be provided to protect adjacent properties and land uses from possible detrimental impacts of the proposed use,” since the addition does not require any special buffers or yard setbacks, nor were any such requests made. Moreover, the finding that the lot size is “insufficient, inappropriate and inadequate for the proposed use” because the residence is located only fifteen feet from the dune crest is, again, undermined by the survey reflecting nineteen feet, plus the fact that if the addition was actually too large, other variances, such as yard setback variances, would be required, but there is no indication that any such variances are necessary. The findings that the “proposed use does not conform to the Town Code definition of the special permit use,” that the “proposed use in not fairly typical of other parcels in this neighborhood,” and that “the site of the proposed use is not suitable for the location of such a use in the Town and will not in fact be compatible with its surroundings and with the character [of] the neighborhood” flies in the face of the established record demonstrating without dispute that the subject residence and its proposed addition are located in a residential neighborhood, surrounded by other residences, many of which appear to be much larger than petitioner’s residence. Furthermore, as noted, the petitioner’s neighbors support the proposed addition. The ZBA’s further findings listed in 8, 9 and 10 seemingly ignore that the addition with the bedrooms and bathrooms is to be built is on the landward side of the house, not onto the dune, that there would be less decking on the seaward side of the house than presently exists, and Robert Grover’s report showing that the addition will not disrupt natural features, systems, or processes. The particular finding that “adequate provisions cannot and will not be made for the collection and disposal of storm water runoff, sewage, refuse and other liquid, solid or gaseous waste which the proposed use will generate” is utterly undermined by the record demonstrating that the petitioner proposes upgrading the septic system by installing an Innovative & Alternative On-Site Wastewater Treatment System, approved by the Suffolk County Department of Health Services. In view of the foregoing, the petition is granted, and the May 24, 2022 determination of the East Hampton Town Zoning Board of Appeals denying petitioner’s application in its entirety is annulled and set aside because it is arbitrary, capricious and an abuse of the ZBA’s discretion; furthermore, it is not supported by substantial evidence. This constitutes the Decision and Order of this Court. FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION [ ] Dated: February 15, 2023
