Introduction

Petitioners' application for a judgment pursuant to CPLR Article 78, inter alia, reversing and annulling the decisions of the Zoning Board of Appeals of the Town of North Hempstead ("Board") which granted area variances in favor of Scott Seeman (Appeals #18977.A and #18977.B; Ex. "A" to the Notice of Petition; Ex. "A" to the Verified Answer and Return) with respect to the premises known as 60 Bayview Avenue, Port Washington, New York, is granted. The record establishes that the appeals to the Board by Scott Seaman—who was not the actual owner of the subject premises—were not made by an aggrieved person within the meaning of Town Law § 267- a(4) and that the applications were based on, inter alia, Mr. Seeman's false affidavits of ownership. Under the circumstances, the Board was without jurisdiction to entertain the applications (In re Hoerner v Tormey, 24 AD2d 597 [2d Dept 1965]; see also In re Madonia v Board of Zoning Appeals of Village of Lindenhurst, 300 AD2d 588 [2d Dept 2002]; In re Bosico v Mertzel, 71 AD2d 637 [2d Dept 1979]).

Even assuming, arguendo, that the court could ignore the aforementioned defects, the Board's determination is arbitrary and capricious, in any event (see Peccoraro v Humenik, 258 AD2d 465 [2d Dept 1999]; O'Hara v Zoning Board of Appeals of the Village of Irvington, 226 AD2d 537 [2d Dept 1996]). [*2]

Petitioners' order to show cause seeking a preliminary injunction is denied as academic in light of the within decision and order granting the relief sought in the amended petition.

Due to erroneous and conflicting assertions contained in the parties' submissions regarding ownership of the subject premises and the variance applications to the Board, it is necessary to summarize the parties' submissions, the application process and the evidence before the Board.

The Application Process

The record contains two sworn applications to the Board for area variances for the subject premises made by Scott Seeman, which identify Mr. Seeman both as applicant and owner (Exhibits "I" and "J" to the Verified Answer and Return). Both applications also include Mr. Seeman's "AFFIDAVIT OF OWNERSHIP" wherein he avers that he is the "owner in fee" of the premises described in the applications, and "that the statements of fact contained in this application are true."

The application forms contain a notice which reads:

Application must be fully completed and will not be accepted unless Affidavit of Ownership is executed by the record owner of the property described.

Mr. Seeman also repeatedly identifies himself as applicant in the "SHORT ENVIRONMENTAL ASSESSMENT FORM[S]" which accompany the applications.

In addition, both applications are accompanied by an "INDIVIDUAL DISCLOSURE AFFIDAVIT" made by Mr. Seeman, wherein he avers that:

3. Neither deponent nor any other person mentioned in this affidavit is a Town officer or employee, or is related to a Town officer or employee, except deponent would like to advise that Lee R. Seeman is a councilperson for the 5th Legislative District.

4. No officer of the State of New York or any officer or employee of the Town of North Hempstead, or Nassau County, or any person holding any position or office, whether by election, appointment or otherwise, in any party as defined by subdivision 4 of Section 2 of the Election Law, or his spouse, or their brothers, sisters, parents, children, grandchildren or the spouse of any [*3]of them, is an applicant, or any officer, director or partner, member or employee of the applicant, or legally or beneficially owns or controls stock, of the applicant or associated with the applicant in a joint venture, or is a party to an agreement with the applicant, expressed or implied, whereby he may receive any payment or other benefit, whether or not for services rendered, dependent or contingent upon the favorable approval of such application, petition or request.

The affidavit does not disclose the relationship, if any, between the applicant, Scott Seeman, and Lee R. Seeman. If, however, Scott Seeman is Lee Seeman's son, as has been alleged by the petitioners' attorney (Memorandum of Law of William A. DiConza at p.1), then the affidavit would appear to be materially false.

On November 4, 2010, "Notices of Hearing on Appeal" were served upon "individuals within 300 feet of the subject premises" (Exhibit "K" to the Verified Answer and Return). The caption on the Affidavit of Service made by Regina Rubenstein references "the application of Scott Seeman":

___________________________________________

In the Matter of the Application of

SCOTT SEEMAN

APPEAL #18977.A, 18977.B

___________________________________________

In addition, the notices sent to the surrounding homeowners identify Scott Seeman as applicant (Id.).

At the outset of the hearing before the Board on November 17, 2010, Mr. [Michael] Tumbarello announced that the "[n]ext case is Appeal #18977.A. and B., Scott Seeman * * *." Mr. Tumberello's statement is then repeated by Chairman David L. Mammina, again referencing Scott Seeman as applicant (Exhibit "C" to the Verified Answer and Return, p. 94).

Immediately thereafter, Mr. Peter Mineo identified himself as "attorney for the applicant Bayview Properties, Park Properties, LLC" (as in original).^[FN1] Mr. Mineo then stated that Mr. [*4]Seeman is a "member of the applicant."

Later in the hearing, Mr. Seeman testified as to his ownership of the premises, which he claimed to have purchased and owned "[s]ince around June." (Id. at p.142) Mr. Seeman also testified that the existing house on the premises has been vacant "[s]ince I closed title" (Id. at p.143).

At the close of the hearing, counsel for the Board stated that the Board would make its decision "[w]ithin 62 days hopefully. The statutory standard is 62 days" (Id. at p.147).

The Board issued two decisions on January 12, 2011, which were filed with the Town Clerk on January 19, 2011, granting both variances in favor of the applicant Scott Seeman without opinion (Exhibit "A" to the Verified Petition).

On February 15, 2011, process in the instant proceeding was served upon the Board, pursuant to CPLR 312. On March 16, 2011, nine days before the petition was originally noticed to be heard and apparently in response to the instant proceeding, the Board filed two new decisions with the Town Clerk (Exhibit "A" to the Verified Answer and Return). These later decisions again indicate that on January 12, 2011, the Board granted both variance applications made by Mr. Seeman, but reference newly attached findings of fact—a seven page document dated March 9, 2011.

There is no mention of an LLC in any of the Board's decisions.

In their original pleadings, petitioners joined "Bayview Park Properties LLC" ("LLC") as a party respondent, but did not join Scott Seeman. The Notice of Petition erroneously references the LLC as "applicant" on the two variance applications made by Scott Seeman.

It is alleged in the Verified Petition that the LLC "is the owner of the premises known as 60 Bayview Ave, Port Washington, New York" (Verified Petition at ¶ 6). Significantly, the Verified Petition does not state when the LLC allegedly became the owner of the premises. This allegation is admitted in the Verified Answer of the LLC (see CPLR 3018 [a]), but is denied by the Board (Verified Answer and Return at ¶ 1). The Verified Petition then erroneously alleges that the LLC applied to the Board for the variances (Verified Petition at ¶ 16). This misstatement of fact is repeated throughout the Verified Petition.^[FN2]

Due to the conflicting assertions and sworn statements contained in the parties' submissions, the court issued an interlocutory order, pursuant to CPLR 409(a). In that order, the court directed the respondent LLC to file proof of ownership of the premises as of the date of submission of the variance applications to the Board, as well as proof of any conveyance of said property.

By letter to the court, Mr. Mineo (who currently represents both Mr. Seeman and the LLC) responded that the LLC has owned the premises continuously since May 10, 2010 to the present time, and that "all of the actions relevant to this proceeding have taken place while [the LLC] has owned [the premises]" (Letter dated September 15, 2011).

Given that the September 15, 2011 letter response to the interlocutory order directly contradicted various sworn statements made by Mr. Seeman in his applications, as well as Mr. Seeman's testimony at the hearing, the Court scheduled a telephone conference with counsel.

At the beginning of the conference, counsel were advised by the Court that the appeals to the Board could only have been taken by an aggrieved person within the meaning of Town Law § 267-a (4), and that if relief was granted to an applicant who was not an aggrieved person, the relief would be void.

Counsel for the LLC responded by suggesting that the court treat Mr. Seeman and the LLC as a single entity. The court noted, however, that an LLC and its members are distinct legal entities (see LLCL 202 (a), (b); 601; 610). It was then suggested that the Court "overlook" the issue and simply assume that the application to the Board had been made by the LLC. The Court pointed out that stipulating to an alternate reality—one contradicted by unquestionable documentary evidence, did not constitute lawful process (see, CPLR 3222 [a]). In any event, the assumption would be unavailing. In this regard, there were no disclosure or ownership affidavits by the LLC accompanying the applications to the Board and no testimony or evidence elicited at the hearing concerning the benefits to the LLC, which must be considered by the Board in order for its determination to withstand scrutiny under Town Law § 267-b(3) and CPLR Article 78.

At that point, counsel suggested that Mr. Seeman's application was actually made in a representative capacity on behalf of the LLC, a factual averment flatly contradicted by the documentary evidence before the court.

The court then concluded the conference and scheduled a further conference, instructing all counsel to carefully consider their legal and factual positions in the interim. At the second conference, the court again discussed the aforementioned issues with counsel in an effort to assist the parties in resolving them, but to no avail.

In view of the parties' inability to resolve the issues created by their submissions, the court issued a second interlocutory order directing that Scott Seeman be joined to the proceeding. By order dated September 30, 2011, the court ordered petitioner to serve an amended petition and notice of petition joining Scott Seeman. This was done not only because Mr. Seeman, as applicant before the Board, was arguably a necessary party, but also because the conflicting submissions regarding ownership of the premises could not properly be resolved in his absence (see CPLR 1001 [a]).

In the Amended Notice of Petition, petitioners reference "the variance application of Respondent BAYVIEW PARK PROPERTIES LLC/SCOTT SEEMAN". Petitioners then refer to "respondent" in the singular throughout the Amended Verified Petition.^[FN3] As noted above, however, any attempt to cast Mr. Seeman and the LLC as a single legal entity is unsupported in fact and law. The parties' amendment of their pleadings in this manner did not constitute an appropriate corrective measure that lawfully addressed the jurisdictional issue raised by the court in prior conferences (cf. CPLR 2001).

An appeal to the Zoning Board of Appeals may be taken only by one who is "aggrieved" or by an "officer, department, board of bureau" of a town. An owner or contract vendee of property affected by a determination of an administrative officer is considered to be aggrieved (McKinney's Town Law §267-a, Commentaries at p.259). If the Board grants relief to an applicant "who is neither the owner nor the authorized agent of the owner, the relief is void and, because the defect is jurisdictional, it may be challenged more than 30 days after the decision is filed " (McKinney's Town Law §267-a, Commentaries at p.259 citing In re Hoerner v. Tormey, 24 AD2d 597 [2d Dept 1965]; CPLR 7803(2) [a ground to annul a Board's determination in a proceeding pursuant to CPLR article 78 is "whether the body or officer proceeded * * * without or in excess of jurisdiction"]).

In Madonia v Board of Zoning Appeals (300 AD2d 588 [2d Dept 2002]), excerpted below, the Second Department reversed the Supreme Court's order annulling the determination of the Zoning Board of Appeals which denied a variance to petitioner who had misrepresented his ownership interest in his application to the Board:

In July 1999 the petitioner Joseph Madonia applied for use and area variances that would [*7]allow operation of a check-cashing business on the subject property. The Board of Zoning Appeals of the Incorporated Village of Lindenhurst (hereinafter the Board) held a public hearing on July 28, 1999, and granted the application in a determination dated November 17, 1999, and filed on January 4, 2000. The Board subsequently reopened the matter * * * after questions arose as to whether proper notice of the hearing was provided to the public. At the reopened hearing, evidence was introduced that Madonia was not the owner of the property at the time of his application, contrary to his statement on the application form, and that his statement in a "full disclosure affidavit" sworn to on July 1, 1999, that no one else had an interest in the property, was untrue. Based in part on this information, the Board revoked its prior approval of Madonia's application without prejudice to renewal. At the time of the reopened hearing, the property was owned by the petitioner 120 WSH Realty Corp., of which Madonia was the sole shareholder. The Supreme Court annulled the Board's determination dated June 23, 2000, based on its conclusion that notice was proper and directed the Board to reinstate the determination filed January 4, 2000, which approved the variances. The determination of a zoning board will be sustained if it has a rational basis and is supported by substantial evidence (see Matter of Fuhst v Foley, 45 NY2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756). Contrary to the Supreme Court, we conclude that the Board's determination to vacate its prior decision should be upheld, as it was undisputed that Madonia was not the owner of the subject property at the time of his application and that he had misrepresented his ownership interest in the property at the time the application was pending before the Board (see Matter of Pioneer-Evans Co. v Garvin, 191 AD2d 1026, 1028, 595 N.Y.S.2d 586; Matter of Hoerner v Tormey, 24 AD2d 597, 262 N.Y.S.2d 271; see also Matter of Gardner v Town of Canandaigua Code Enforcement Officer, 261 AD2d 910, 689 N.Y.S.2d 326; Matter of Reiss v Keator, 150 AD2d 939, 541 N.Y.S.2d 864). Madonia contends that he was a contract vendee, and therefore he had an equitable interest in the property which entitled him to apply for the variances (see e.g. Necker Pottick, Fox Run Woods Bldrs. Corp. v Duncan, 251 AD2d 333, 673 N.Y.S.2d 740; Matter of Armonas v Board of Zoning Appeals of the Vil. of Lloyd Harbor, 246 AD2d 646, 667 N.Y.S.2d 319; Matter of Colony Park v Malone, 25 Misc 2d 1072, 205 N.Y.S.2d 166). However, the evidence submitted in connection with the proceeding demonstrated that, at the time of Madonia's application to the Board, the property was owned by Cipro Petroleum/L.I., Inc., which was in bankruptcy, that Madonia's right to purchase the property was contingent upon a higher bidder's failure to close on a contract of sale, and that the bankruptcy court did not issue an order approving the sale of the property until November 1999, after the initial public hearing on Madonia's application for the variances. Madonia then assigned his interest in the contract of sale to 120 WSH Realty Corp. Moreover, Madonia did not submit evidence that he was acting as the prior [*8]owner's agent in applying for the variances.

At bar, the applications to the Board were made by Mr. Seeman in his individual capacity. Nothing contained in his applications to the Board indicates that they were made in a representative capacity on behalf of the LLC. The applications, moreover, were accompanied by affidavits of ownership wherein Mr. Seeman falsely averred that he individually owned the subject premises in fee, which are directly contradicted by the submissions of counsel in response to the interlocutory order. The applications were also accompanied by "INDIVIDUAL DISCLOSURE AFFIDAVIT[S]" executed by Mr. Seeman in an individual capacity, and which do not mention an LLC.^[FN4] In addition, Mr. Seeman's testimony before the Board, which was otherwise conclusory and insufficient, concerned his individual ownership and proposed development of the subject property. For example, the following testimony was elicited from Mr. Seeman at the hearing (Exhibit C to Verified Answer and Return at p.142):

Mr. Aloe: Now, do you own the house now?

Mr. Seeman: Yes.

Mr. Aloe: So you just bought it and own it outright?

Mr. Seeman: Yes, sir.

Mr. Aloe: How long have you owned it for?

Mr. Seeman: Since around June.

Other than an isolated and erroneous reference by counsel at the outset of the hearing regarding an entity named "Bayview Properties, Park Properties LLC", and, which is, itself, without evidentiary value, no reference to the LLC was made in any submission or evidence presented to the Board. Nor is there proof in the record that Mr. Seeman had a contractual interest in the subject premises.

In conclusion, the Board's determination granting variances to Mr. Seeman was arbitrary and capricious and must be annulled as jurisdictionally defective.

Even assuming that the court could ignore the aforementioned defect, the Board's determination would have to be annulled because of the failure of Mr. Seeman to provide proof concerning the benefits to be obtained by the LLC which would have permitted the Board to engage in the required balancing analysis under the Town Law. Town Law § 267-b(3) sets forth the standards that an applicant must satisfy in order to obtain a variance from area limitations contained in the municipal zoning regulation.

Pursuant to Town Law § 267-b (3), when making determinations on applications for area variances, zoning boards of appeals "must weigh the benefit of the grant to the applicant against [*9]the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted" (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612). The statute further provides that in making such determinations the zoning 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 area 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 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." (Town Law § 267-b [3] [b] * * *)

The statute envisions that courts will engage in a balancing test of the enumerated factors (see Matter of Bull Run Props., LLC v Town of Cornwall Zoning Bd. of Appeals, 50 AD3d 683, 684, 855 NYS2d 585 [2008]; Matter of Voetsch v Craven, 48 AD3d 585, 586-587, 852 NYS2d 225 [2008]; Matter of Schumacher v Town of E. Hampton, NY Zoning Bd. of Appeals, 46 AD3d 691, 692, 849 NYS2d 72 [2007]). A ZBA is not required to justify its determinations with supporting evidence as to each of the five factors, so long as its determinations balance the relevant considerations in a way that is rational (see Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 929, 841 NYS2d 650 [2007]). * * *

Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh (68 AD3d 62 [2d Dept 2009])

The requirement that the Board weigh the benefit to the applicant against any adverse impact on the community, has been described as the "primary consideration of the statute" (Matter of Caspian Realty, Inc. v Zoning Bd. Of Appeals of Town of Greenburgh, 68 AD3d 62, 73, supra).

At bar, no evidence was presented to the Board regarding the benefits to the LLC which would have enabled it to engage in a reasoned analysis. In this regard, the evidence at the hearing, which was conclusory in nature, concerned only the impact that a grant or denial of the application would have on Mr. Seeman personally. The following hearing testimony is instructive on this point (Exhibit C to Answer and Return at p.141):

Mr. Aloe: Now, what would happen if you did not get this relief, what would happen? [*10]

Mr. Seeman: I'll have to sell the house off the way it is. I will definitely take a loss on the property.

* * *

Mr. Aloe: So your plan is, if you get this approval, would be at that point once you have the approval to sell it off separately?

* * *

Mr. Seeman: And then sell it, yes, sir.

Based on the foregoing, it is hereby ordered that the petition is granted and the determination of the Board is annulled and reversed. It is further ordered, in light of this determination, that the motion for a preliminary injunction is denied as academic.

This constitutes the decision and order of the court.

Dated: February 1, 2012

_________________________

Hon. Vito M. DeStefano, J.S.C.