ORDERED, that this Petition seeking to review, annul and set aside the determination of the Zoning Board of Appeals of the Town of East Hampton, dated May 22, 2007 is granted to the extent that the matter is remanded to the Zoning Board of Appeals for further findings in accordance with the decision herewith.

Petitioners, Joseph Visconti and Lewis Visconti ("petitioners") commenced this proceeding against respondents, Zoning Board of Appeals of the Town of East Hampton ("Zoning Board" or "Board"), Ronan O'Dwyer ("O'Dwyer") and George Balasses ("Balasses") by the filing of a Notice of Petition and Petition on or about June 21, 2007. The Zoning Board filed a Verified Answer and Return and Memorandum of Law on or about August 2, 2007 and Respondent O'Dwyer filed a Memorandum of Law on or about November 30, 2007.

The subject matter of this proceeding is the Board's issuance of a Natural Resources Special Permit and two variances from the minimum wetland setback requirements for the construction of a single family residence on property located at Fresh Pond Road, Amagansett, New York. The property is designated on the Suffolk County Tax Map as 0300-127-1-4 (the "subject premises"). Petitioners are the owners of property adjacent to the subject premises to the south; petitioners' property is located as the back "flag" lot on a common driveway which accesses both petitioners' property and the subject premises. Respondent Balasses was the owner of the subject premises and O'Dwyer was the contract vendee for the subject premises at the time of the application, although the submissions reflect that since the commencement of this action, O'Dwyer has taken title to the property.

In 2004, Balasses submitted an application to the Zoning Board for approval for the construction of a 2,416 square foot dwelling with 656 square feet of decking on the subject premises, which is 21,576 square feet (the "2004 application"). The application requested setback variances of 37.2 feet, 45.2 feet and 35 feet from freshwater wetlands and a 56 foot variance to locate the septic system 94 feet from the wetlands where 150 feet is required and a 2.8 foot variance to locate the residence 16 feet from the side lot line where 18.8 feet is required. By Determination dated January 11, 2005, the Board denied the application.

In its Findings and Conclusions denying the application, the Board noted that the wetland located on the parcel was an extensive wetland which covers approximately 32,889 square feet and known as Bellyache Swamp. The Board made the following findings as relevant to the decision herein:

2.This wetland constitutes an integral part of the natural environment, and more specifically, the hydrologic system. In addition to diversifying the landscape, Bellyache swamp often plays a significant role in the storage of water, flood control, and the maintenance of water quality. Any amount of development within proximity of this wetland could have a detrimental [*2]impact on the wetland's ability to retain and re-charge floodwaters.

4.The project requires substantial wetland setback variances as proposed. The sanitary system is proposed up gradient and 94' away from the wetland. The applicant requires a 37% variance for the sanitary system. The residence as proposed is 62.8' from the wetland, which is a 37% variance as well. The wetland in question is a large wetland. The NYSDEC classifies this as a type II wetland, which is the second highest rating of NYSDEC wetlands. The applicant is requesting a substantial 37% variance for the sanitary system and the residence.

5.The Planning Department recommended that a smaller less ambitious project be considered for this parcel. It was the Planning Department's opinion that the wetland constraints on the lot are may be too severe to support a residence of this scale. The applicant is proposing to clear 32.49% of the lot for the proposed project. The clearing as proposed will be 50' from the wetland. The parcel in question is 21,576 sq. ft. The residence proposed will have an approximate footprint of 1,280 sq. ft. It was the Planning Department's opinion that the scale of the proposed improvements together with the proposed clearing is excessive on a lot as constrained as this one.

6.It was the Planning Department's opinion that the project as proposed should be denied and the Zoning Board consider a smaller less ambitious project on this parcel. The major benefit of a smaller scale project would be less clearing, which would protect a greater buffer to Bellyache Swamp. A smaller project could also be designed to avoid more of the area containing archaeological resources. A smaller project would also allow a greater retention of woodlands within the area preserving the natural character. The Zoning Board should consider a smaller scale project, which would have less of an impact on the wetlands.

(Emphasis added). Based on the foregoing findings, the Board denied the application for a Natural Resources Special Permit and wetland setback variances.

The 2005 Application

In April of 2005, Balasses submitted a second application for a Natural Resources Special Permit and wetland setback variances for the construction of an 1,886 square foot residence with 626 square feet of decking (the "2005 application"). In the 2005 application, in addition to the Natural Resources Special Permit, Balasses sought the following variances: 38.1 foot variance to locate the residence 61.9 feet from the wetland; 38 foot variance to locate the northern front yard deck 62 feet from the wetland; 16 foot variance to locate the northeastern front yard deck 84 feet from the wetland; and 63.1 foot variance to locate the sanitary system 86.9 feet from the wetlands where 150 feet is required. By Determination dated November 1, 2005, this application was also denied by the Zoning Board. In its Determination, the Board made the following Findings and Conclusions as germane to the Decision herein:

7.The requested area variances are substantial. The applicant is seeking some variances that are marginally greater than the variances previously applied for and denied. The current application seeks a septic variance of 63.1 feet where the required setback is 150 feet and locates the septic tank a mere 86.9 feet away from the wetlands. The present application seeks a variance for the proposed residence that may bring the improvements closer to the location of the wetlands. The proposed location may not be the farthest from the wetlands. Thus, the Board finds that the variances requested are substantial and are not the minimum necessary and sufficient to allow the proposed construction.

8.The Board finds that the variances requested would have an adverse effect or impact on the physical environmental conditions in the neighborhood. The subject parcel is not only directly across from Fresh Pond Park but is located in a Fresh Ponds primary watershed. The property also backs up to Bellyache swamp which is one of the largest and least disturbed freshwater wetland kettles in Amagansett. The Board firmly believes that the proposed construction will have an adverse impact on the wetland's ability to retain and re-charge floodwaters as well as damage the habitat provided for a variety of wildlife species. The Planning Department also notes that the proposed clearing will obliterate the depression associated with the archeological features of the site.

9.The Board feels that the detriment to the general health, safety and welfare of the neighborhood, Town of East Hampton, Fresh Pond Park including Bellyache swamp in particular, outweighs the benefit to the applicant of building the improvements on the land as proposed.

(Emphasis added). Based on the foregoing, the Board denied the 2005 application.

On or about October 6, 2006, O'Dwyer submitted the third application for approval of a Natural Resources Special Permit and wetland setback variances for the construction of a 1,150 square [*5]foot residence with 626 square feet of decking on the subject premises. This application required a Natural Resources Special Permit and two (2) wetland setback variances; a 40 foot variance to locate the residence and decking 60 feet from the wetland where 100 feet is required; and a 63.1 foot variance to locate the sanitary system 86.9 feet from the wetlands where 150 feet is required. A public hearing on the application was held on March 27, 2007, and by Determination dated May 22, 2007, the Board granted the application. In support of its Determination granting the application, the Board made the following Findings of Fact:

2.The wetland located on the parcel is an extensive wetland which covers approximately 32,889 sq. ft. known as Bellyache Swamp. This wetland constitutes an integral part of the natural environment and more specifically, the hydrologic system. In addition to diversifying the landscape, Bellyache Swamp often plays a significant role in the storage of water, flood control and the maintenance of air quality. Any amount of development within proximity of this wetland could possibly have a detrimental impact on the wetland's ability to retain and re-charge floodwaters.

4.The subject parcel was the subject of two (2) previous ZBA decisions in which a 2,416 sq. ft. residence with a crawlspace, 656 sq. ft. of first and second floor decking was denied and a 1,886 sq. ft. residence with 626 sq. ft. of decking was denied. In the first application, applicant was requesting six (6) variances. In the second application, the applicant requested four (4) variances. In both of these applications, the Board found that the requested variances were not the minimum necessary and that an alternative smaller project should be proposed that would have less of an impact on the wetlands. In the present application, applicant reduced the overall size of the house than what was proposed in the first application by more than half the square footage. Further, in this application the applicant eliminated the need for all but two (2) variances. The Board finds that this third proposal is sited in best location on the parcel to minimize distances to the wetlands and side yard lot lines. The Board also finds that a smaller house than what is presently proposed would not provide the wetlands any greater environmental protection.

6.The Board finds that granting the requested variances will not cause an undesirable change in the character of the neighborhood or create a detriment to nearby properties. The Board finds that by reducing the size of the house and eliminating the need for unnecessary variances the proposed residence will be consistent to other houses in the area. Moreover, applicant will be placing a scenic easement over the majority of the subject parcel. This easement will forever require that the greater part of this parcel remain in a natural state.

7.Neighbors have expressed concern throughout the numerous applications for this parcel regarding noise buffer this lot provides. The Board finds that by clearing the minimum necessary and placing the scenic easement over the parcel the lots ability to filter out noise from the Fresh Pond Park will not be weakened.

8.The Board recognizes that the requested variances are substantial, but finds that the [*6]impact on the wetlands can be mitigated by the placement of a scenic easement over a large portion of the property. The Board finds that the requested variances are the minimum variances necessary and adequate to alleviate the difficulty causing the applicant to request said variances.

9.The Board finds that the proposed project will not have any adverse impacts on the physical or environmental conditions in the neighborhood as the applicant will establish a scenic easement on the property to preserve much of the natural features of the parcel and to protect the wetlands. With respect to clearing the Board finds that the applicant is proposing to clear the minimum amount necessary to construct the proposed house and sanitary system. Further, by requiring applicant to revegetate any areas disturbed by construction activities any adverse impacts will be mitigated.

(Emphasis added). Based on the foregoing, the Board found that the benefit to the applicant outweighed any detriment to the general health, safety and welfare of the neighborhood and the Town of East Hampton as a whole, and granted the application. The within proceeding ensued.

Notwithstanding the foregoing general principle, it is axiomatic, that a "'decision of an administrative agency which neither adheres to its own precedent nor indicates it reason for reaching a different result on essentially the same facts is arbitrary and capricious.'" Civic Assoc. of the Setaukets v. Trotta, 8 AD3d 482, 778 NYS2d 524 (2d Dept. 2004), quoting, Matter of Field Delivery Serv., 66 NY2d 516, 498 NYS2d 111, 488 NE2d 1223. See also, Waylonis v. Baum, 281 AD2d 636, 723 NYS2d 55 (2d Dept. 2001); Spandorf v. Board of Appeals of Village of East Hills, [*10]167 AD2d 546, 562 NYS2d 215 (2d Dept. 1990). If the Board sets forth a rational and satisfactory explanation for departing from the prior precedent, however, the determination should be upheld. Nozzleman v. Village of Cold Spring Zoning Board, 34 AD3d 682, 825 NYS2d 107 (2d Dept. 2006).

In the case sub judice, the Court has been given insufficient information to determine whether the Zoning Board has provided a rational explanation for departing from its precedent in granting the subject application. In the 2004 and 2005 denials, the Board relied in part on the amount of clearing necessitated by the projects and the substantial nature of the setback variances and proximity to the wetlands. The Board was not satisfied with the clearing in 2005 based upon the clearing proposed in this application. The Board does state that the reduction in the size of the house and the elimination of the need for certain front and side yard setback variances in support its determination. However, the Court has not been given sufficient information to determine wether such changes justify the Board's departure from its own precedent.

As set forth by the Court of Appeals, where the Court has insufficient factual findings to understand the basis of a zoning board's determination, the matter may be remanded to the Board so that such entity delineates these findings that form the basis for it's decision. see, Matter of Community Synagogue v. Bates, 1NY2d 445, 154 Nys 2d 15, 136 NE2d 488.

Based on the foregoing, the matter is remitted to the Respondent, Zoning Board of Town of East Hampton for further Findings and Conclusions in accordance with the determination herein.

This constitutes the DECISION and ORDER of the Court.

Dated: February 14, 2008

Riverhead, New York

Emily Pines

J. S. C.