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| Matter of Winston v Town of Bedford, Zoning Bd. of Appeals |
| 2007 NY Slip Op 50306(U) [14 Misc 3d 1235(A)] |
| Decided on February 27, 2007 |
| Supreme Court, Westchester County |
| Lippman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Westchester County
In the Matter of the Application of Barbara Winston and Bruce Winston, Petitioners, For a Judgment pursuant to CPLR Article 78
against
Town of Bedford, Zoning Board of Appeals, Respondent.
|
20360/06
Bruce J. Turkle, Esq.
Phillips Nizer LLP
Attorneys for Petitioners
666 Fifth Avenue
New York, New York 10103-0084
Joel H. Sachs, Esq.
Amanda E. Kandel
Attorney for Respondent
445 Hamilton Avenue, 15th Floor
White Plains, New York 10601
Jonathan Lippman, J.
Due consideration was given to the following papers submitted in this special proceeding commenced by petitioners, Barbara Winston and Bruce Winston ("petitioners@), pursuant to CPLR Article 78, seeking a judgment annulling and vacating the September 13, 2006 Resolution certified by respondent, Town of Bedford, Zoning Board of Appeals (the "respondent" or "zoning board"), and for a declaration that the stone monument on their property is not a "structure" under the terms of the Bedford Town Zoning Code:
BACKGROUND
Petitioners reside in Katonah, New York on a 13.181 acre parcel zoned for one-family residential use. In the summer of 2005, petitioners retained a stonecutter to create a replica of the 8th century Mayan Temple of the Great Jaguar (the "replica") on their property. The replica is located on the back lawn of petitioners' house, 24 feet from the perimeter of their rear property line.
The Town of Bedford Zoning Code (the "code") provisions that govern petitioners' property dictate that a building permit issue prior to the construction of a "structure" (code § 125-125[B]) and that a structure be "setback" a minimum of 50 feet from the rear or side property line (code § 125-50). Following a complaint by a neighboring landowner, the Town of Bedford Building Department (the "Bedford Building Department") issued a summons dated August 31, 2005, charging petitioners with violations of code sections 125-125(B) and 125-50 for erecting a structure on August 8, 2005 without a building permit and in contravention of the minimum rear yard setback of 50 feet (the "summons") (see Certified Record, Exhibit 2).
Less than two weeks later, petitioners filed an Application for a Building Permit and the related Application for Certificate of Compliance with the Bedford Building Department (see Certified Record, Exhibits 3 & 4 each dated September 12, 2005). The permit application seeks permission to construct a "multi-level stone sculpture in a pyramidal form" towering eight feet, eight inches (Certified Record, Exhibit 3).
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On the same day, petitioners filed an Application for a Variance with respondent (see Certified Record, Exhibit 8 dated September 12, 2005). As applicants for an area variance, petitioners seek permission for a use of their property that is unauthorized by the code provisions, i.e. to construct the replica within 25 feet of the rear property line rather than the 50 feet mandated by code section 125-50. Petitioners' application effectively seeks to excuse the code violations and permit the replica to remain in its present location. This application triggered the right to a public hearing which was noticed for and commenced on December 7, 2005 and continued on June 14, 2006. The board discussed the applications at meetings on July 12, 2006, when an attorney retained by petitioners appeared, and again on September 6, 2006, at which time respondent voted inter alia to deny the variance application and declare that the replica is a "structure" under the terms of code section 125-125(B) because it "requires location on the ground" subject to the requirement of a building permit.
Respondent's findings are memorialized in certified Resolution No. 07-06 dated September 13, 2006 (the "resolution") which is the subject of this Article 78 proceeding. Petitioners seek: (1) to vacate and annul respondent's determinations embodied in the resolution as arbitrary and capricious; and, (2) a declaration that the replica is not a structure under the code provisions thereby negating the permit requirement. Pending the conclusion of the instant proceeding, the parties adjourned the Bedford Town Court action on the code violations cited in the August 31, 2005 summons.
DISCUSSION
At the public hearing, petitioners represented that the replica is a ceremonial monument that captures the cyclical rotations of the earth and sun and provides them spiritual renewal and meditative sustenance. Petitioners contend that the replica is situated to be visible from both inside and outside of their house, and to reflect the afternoon and evening sun for the dual inspirational and aesthetic purposes they believe the replica serves. Petitioners state they incurred considerable expense to create the replica, and as a courtesy to their neighbor, planted staggered rows of trees ranging in height from 9 to 14 feet to establish a perennial buffer (the "tree buffer"). Moreover, petitioners advance that the zoning board must respect and accommodate their religious exercise and that the building inspector's issuance of the summons infringed on their religious freedom or violated the Federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") (see 42 USCA §2000cc et seq).
Zoning boards are invested with broad discretion to consider applications for variances (see Matter of Soho Alliance v New York City Bd. Of Stds. & Appeals, 95 NY2d 437, 440 [2000]). As a matter of statute, a zoning board "shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community" should the variance issue (Town Law § 267-b[3][b]); see also Sasso v Osgood, 86 NY2d 374, 381-385 [1995]. The statute directs that the board shall "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...; (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...; and (5) whether the alleged difficulty was self-created..." (id.). Further, the statute provides that a self-created difficulty does not necessarily foreclose a grant of [*3]an area variance but "shall" be relevant to the consideration (id.). Judicial review, in the posture of an Article 78 proceeding challenging the denial of a variance, is limited to determination of whether the action by the board was arbitrary, illegal or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]). The zoning board's determination must be sustained if it has a rational basis (see Matter of Sasso, 86 NY2d at 384 n2).
Contrary to petitioners' assertion that the zoning board merely parroted the statutory language in reaching their determination, rendering it arbitrary and capricious, the zoning board engaged in a meaningful balancing of the benefits petitioners aver inure to them should the area variance issue juxtaposed against the detriment to the neighborhood, and respondent specifically considered the criteria enumerated in Town Law § 267(b).
The zoning board acknowledged that while the replica may not presently pose any deleterious effects to the neighborhood or environment, the landscaped tree buffer, expressly designed to create a natural obstruction of the neighbor's view of the replica, cannot be guaranteed to be maintained in perpetuity, and should such screening diminish in scope or disappear, the replica's substantial size and location stand to negatively impact the neighborhood.
It was significant to the zoning board's analysis that petitioners elected to place the replica on a spot that requires a 50% variance on an expanse of property in excess of 13 acres. A board member specifically stated that had petitioners applied for a variance prior to the construction, the zoning board would have requested petitioners to locate it elsewhere in order to comply with the code (see Certified Record, Exhibit 39). In an opinion letter submitted to the zoning board, the Bedford Town Attorney (the "town attorney") summarily dismissed petitioners' claims that the summons infringed on their religious freedom or violated RLUIPA as "nothing but a sham," asserting that petitioners "could apply for a building permit and have the exact same structure erected in an appropriate location on the property which does not violate the setbacks" (Certified Record, Exhibit 28). The resolution expressly dictates that if petitioners "wish to continue to have this structure on their property for aesthetic, spiritual or other use, they may do so by relocating it to an appropriate location on their property which does not require an area variance, but would require a permit from the Building Inspector" (Certified Record, Exhibit 29 at 3).
This court is hard pressed to disturb respondent's findings based on the record presented. It is not unreasonable for the zoning board to conclude that petitioners can derive the spiritual and aesthetic pleasure from the replica absent the area variance. It is a "fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it" (FGL & L Prop. Corp . v City of Rye, 66 NY2d 111, 116 [1985]; St. Onge v Donovan, 71 NY2d 507, 515 [1988]; see also Robbins v Seife, 215 AD2d 665 [1995]; Grace v Palermo,182 AD2d 820 [1992]). Here, the zoning board's rejection of petitioners' attempt to skirt the zoning violation can neither be construed as a personal affront nor a restriction on the exercise of religious belief but rather an adherence to the codified provisions that govern land use in their town for the benefit of the entire community. A property owner must adhere to the governing land use regulations upon any improvement or alteration to the property and an applicant who seeks an exception from a regulation is not presumptively entitled to a variance.
Turning to petitioners' request for a declaration that the replica is not a structure within [*4]the contemplation of code section 125-3[FN1] and therefore exempt from the permit requirements, the court finds that the plain language of the code unquestionably includes the replica within its definition as held by respondent in the resolution (see, e.g. Matter of Putnam Materials Corp. v Zoning Bd. of Appeals of Town of Patterson, 188 AD2d 651, 652 [1992]).
At the first public hearing, petitioners' former attorney (the "former attorney") raised the issue of whether the replica was a structure as contemplated by the zoning code. The former attorney argued that the replica has no use and a structure "is not defined by its size but by its use" (Verified Petition, Exhibit E). The hearing was adjourned but held open for three items (1) an opinion from the town attorney on whether the replica was a structure under the zoning code subject to the requirement of a building permit, (2) the submission of a legal memorandum from petitioners' former attorney, and (3) a visit by the zoning board to a neighbor's property for a viewing of the replica.
Following the submission of the memorandum of law on May 19, 2006, the Bedford Building Department visited the site and the town attorney provided an opinion letter. By memo dated July 7, 2006, the Bedford Town Building Inspector indicated that the replica would require a building permit based on its size and the "normal setback requirements of the R-4 acre zone [i.e. 50 feet] will apply" (Certified Record, Exhibit 27). Similarly, by his opinion letter dated July 10, 2006 the town attorney opined that the replica's platform is a structure and a building permit was required for its construction under zoning code section 125-125(B) (see Certified Record, Exhibit 28). Finally, the letter indicated that based on the building inspector's measurement of the structure's floor area of 100 square feet, the reduced setback standard in code section 127-27(C) is inapplicable.
The zoning board's resolution embodies these findings, declaring that the replica falls within the definition of structure based on the code language "requires location on the ground," and, is therefore subject to a building permit (code §§ 125-3 & 125-125[B]). Respondent clearly interpreted the term "use" to mean physical placement, not the nature or type of use a structure may serve. The zoning board also rejected petitioners' request to apply a reduced setback, adopting the building inspector's finding that the gross horizontal area of approximately 248 square feet mandates a 50 foot setback.
Certainly, construing the plain language of the code as applicable to the physical elements of the replica, respondent's declaration that the replica is a structure subject to the permit requirements is neither arbitrary nor irrational (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 102-103 [1997]; Matter of Frishman v Schmidt, 61 NY2d 823, 825 [1984]; Matter of Putnam Materials Corp., 188 AD2d at 652). The final interpretation of the law is for the reviewing court and where, as here, the zoning board's construction of its code provisions comports with reason and logic, and finds a rational basis in the record, it is entitled to judicial deference (see KMO-361 Realty Assoc. v Davies, 204 AD2d 547 [1994] lv denied 84 NY2d 811 [1994]). Therefore, this court must sustain respondent's declaration.
Accordingly, it is hereby
ORDERED that the petition is denied and the proceeding is dismissed.
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The foregoing constitutes the Decision, Order and Judgment of the Court.
Dated: White Plains, New York_________/s/________________________
February 27, 2007Hon. Jonathan Lippman, J.S.C.
TO:
Footnotes
Footnote 1:Structure is defined as "[a]nything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground."