In this matter, Petitioner seeks judicial review, pursuant to CPLR Article 78 and Town Law [*2]§282, of a denial by the Respondent, Town of Brookhaven Zoning Board of Appeals, of Petitioner's application for an area variance for the subject premises, located on the north side of Atlantic Avenue, 150 feet east of Aleisha Court (Grove Street) in Port Jefferson Station, New York, Town of Brookhaven. The property is vacant, having a 50 foot frontage on Atlantic Avenue, with a lot depth of 100 feet and a lot area of 5,000 square feet. At the time of Petitioner's application, the zoning requirements for the parcel mandated a minimum total lot size of 40,000 square feet. Therefore, Petitioner's proposed single family residence could not be constructed without an area variance from the Town in favor of Petitioner. The Zoning Board held a public hearing on January 25, 2006 concerning the Petitioner's area variance request. On March 15, 2006, the Board voted unanimously to deny the application.

Brookhaven Town Code § 85-1 defines "single and separately owned lot" as " any lot owned individually and separately and separate from any adjoining tracts of land on or before its inclusion within any zoning district and owned individually and separately and separated from any adjoining tracts of land continuously thereafter." The subject property has been held single and separate since 1906 and was acquired by the petitioner in July of 1987. Prior to May 10, 1999, the Code provided a self-executing exemption for all single and separate lots 40 feet in width or greater rendered substandard by upzonings. Thus, prior to May 10, 1999 the petitioner would have qualified under this exemption.

In December of 1996, the Town Board changed the zoning of the subject property to A-1 residential requiring a minimum 40,000 square foot lot area, 175 foot road frontage, 50 foot front yard setback, 60 foot rear yard setback, and 75 foot total side yard, with a 20 foot minimum. In March of 2001, the Town Code was amended, thereby eliminating the single and separate exemptions for such lots, thus requiring an area variance from the Zoning Board of Appeals. The Code left in place a self-executing exemption for lots having a minimum width of 60 feet or greater and a minimum lot area of 6,000 square feet.

Generally, an area variance involves no change in the essential character of the zoned district, nor does it seek to change the essential use of the land. Rather, such variance involves matters such as setback lines, frontage requirements, lot size restrictions, density restrictions and yard requirements (Khan v. Zoning Bd. of Appeals, 87 NY2d 344, 639 NYS2d 302 [1995]). With regard to area variances, Town Law §267-b(3) requires the ZBA to consider "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 by such grant" (Town Law §267-b(3)(b); see also, Sasso v Osgood, 86 NY2d 374, 633 NYS2d 259 [1995]; Khan v. Zoning Bd. of Appeals, supra ).

In making its determination regarding an area variance, under Town Law §267-b(3)(b), "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 by the granting of the 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 [*3]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."

A Zoning Board's determination must be supported by "substantial evidence." Further, the scope of judicial review is limited to a conclusion of whether the action taken by the Board was arbitrary or an abuse of discretion. If the determination is supported by substantial evidence and has a rational basis it must be upheld (Matter of Doyle v Amster, 79 NY2d 592, 584 NYS2d 417 [1992]; Matter of Fuhst v Foley, 45 NY2d 441, 410 NYS2d 56 [1978]; Chrisma Holding Corp. v Zoning Bd. of Appeals, 266 AD2d 540, 699 NYS2d 89 [2d Dept 1999]). The reviewing Court in a proceeding pursuant to Article 78 may not substitute its judgment for that of a planning or zoning board unless the board's determination is arbitrary and capricious, illegal or an abuse of discretion (Pagnozzi v. Village of Piermont, 292 AD2d 613, 739 NYS2d 742 [2d Dept 2002]).

In considering an area variance under Town Law 267-b, the Zoning Board must consider all of the factors set forth in the statute in weighing the benefit to the applicant against the detriment to the health, safety, and welfare to the community (Sasso v Osgood, supra ; Easy Home Program v Trotta, 276 AD2d 553, 714 NYS2d 509 [2d Dept 2000]; Matter of Peccorararo v Humenik, 258 AD2d 465, 684 NYS2d 588 [2d Dept 1999]). A review of the hearing minutes, as well as the written findings of fact and conclusions of law, fail to reveal any discussion of whether the proposed variance would have an adverse effect on the physical or environmental conditions in the neighborhood such as impact of the improved property on traffic, sewage, fire response, or drainage. There is no evidence of any discussion or consideration of whether the difficulty was self-created. As previously noted, the petitioner has held title to the property since 1987, justifying the conclusion that the problem was not self-created, but rather resulted from various upzonings subsequent to the purchase by Petitioner.

There was proof submitted during Petitioner's hearing that there are a total of 4 parcels with frontages of 50 feet. One of those parcels, Parcel 31, had already been improved with a single family residence. This parcel was described as being the piece contiguous to the 50 foot parcel immediately to the rear of the subject parcel, making its location approximately 50 feet from the subject parcel. In its findings of fact, the Board concluded that Parcel 31was 3 blocks away. Since this finding does not conform to the facts proved at the hearing by testimony as well as radius map, such finding is arbitrary.

Although the Board acknowledged that Parcel 31 is a similar improved parcel, it argues that there was no proof that such parcel was improved as a result of a grant from the Board, as opposed to a development as of right. Whether this argument has merit is not germane to this inquiry, as there was testimony from neighbors that opposed the instant application that although they were not properly noticed for the hearing regarding Parcel 31, they did attend the hearing but arrived too late for their opposition to have any effect. The Petitioner has attached the minutes of the proceeding that granted the area variance for Parcel 31, also known as lot 31 on the radius map, which was referred to in testimony before the Board. It was undisputed, at the time of the Petitioner's hearing, that [*4]Parcel 31, a 50 foot by 100foot lot, had been improved with a single family residence. Based on these facts, the Court concludes that at the time of Petitioner's hearing in this matter, the Board had evidence before it of a prior area variance approval for a factually similar parcel approximately 50feet from Petitioner's parcel. Despite the prior variance for the similar parcel, the Board failed to set forth findings that differentiate that similar parcel from Petitioner's parcel. Such failure warrants granting of the petition.

"[W]hen an agency determines to alter its prior stated course it must set forth its reasons for doing so. Unless such an explanation is furnished, a reviewing court will be unable to determine whether the agency has changed its prior interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision . . . Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made" (Matter of Field Delivery Service, Inc. v Roberts, 66 NY2d 516, 520, 498 NYS2d 111, 115 [1985]) (citations omitted). Furthermore, "[a] decision of an administrative agency which 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" (Matter of Field Delivery Service, Inc. v Roberts, 66 NY2d 516, 498 NYS2d 111 [1985]). Inasmuch as a Zoning Board of Appeals performs a quasi-judicial function when considering applications for variances, and completely lacks legislative power, a Zoning Board of Appeals must comply with the rule of the Field case (Knight v Amelkin, 68 NY2d 975, 510 NYS2d 550 [1986]) (citations omitted).

The Board also concluded in its findings that Petitioner "is potentially able to realize a benefit from the subject property without obtaining the substantial variances brought herein." The only evidence in the record on this point is that the Petitioner, in response to a direct question from the Board, stated that he had tried to buy a contiguous piece from the County but was outbid. There is no evidence in the record, therefore, to support the Board's conclusion that the "petitioner is potentially able to realize a benefit."

The findings of fact and conclusions of law of the Board conclude that the subject parcel's 50 foot frontage is a 71% deviation from the A-1 criteria. The Code, however, allows lots with a 60 foot frontage to be developed under the single and separate ownership exception. These lots constitute a 66% deviation from the A-1 requirements, a mere 5% difference from the lot in question. A similar analysis can be made concerning minimum and total side yard mandates as well as front and back yard setbacks when compared with those lots with 60 feet frontage. Further, the Board also acknowledged that there are "few lots within the 500 foot radius of the subject parcel that conform to the A-1 requirements." The Board's only conclusions in support of its denial were that the proposed improvement would only be within 1 - 2 % conformity with the parcels in the 500 foot radius, the proposed area variances were "substantial" and that the benefit to the applicant may be achieved by other means.

It is clear that the Board failed to consider the physical and environmental effects on the neighborhood, it failed to consider whether the problem was self-created, and it failed to offer an explanation as to the denial of petitioner's application and the approval of the factually similar parcel [*5]31. The only testimony supporting "undesirable effect" on the community was from certain neighbors who testified in a conclusory fashion. The mere presence of community opposition and the unsupported conclusory allegations of neighboring property owners does not justify the denial of applications for area variances (Lessings v Scheyer, 16 AD3d 418, 790 NYS2d 545 [2d Dept 2005]; Matter of Bianco Homes v Weiler, 295 AD2d 505, 744 NYS2d 433 [2d Dept 2002]).

Based on the foregoing, the Board failed to properly apply the balancing test required by Sasso v Osgood, supra and Town Law 267-b (3) by weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood. Accordingly, the denial of the area variance was arbitrary and capricious, and not supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441, 410 NYS2d 56 [1978]; Matter of Tatantino v Zoning Bd. of Appeals, 228 AD2d 511, 644 NYS2d 296 [2d Dept 1996]; Matter of Smith v Board of Appeals, 202 AD2d 674, 609 NYS2d 912 [2d Dept 1994]). Consequently, the petition is hereby granted.

This constitutes the Decision of the Court.

Dated: ____________________________________________________

PETER H. MAYER, J.S.C.