Upon the E-file document list numbered 1 to 52 read and considered on this CPLR Article 78 petition to reverse, annul, and set aside a determination by the Zoning Board of Appeals of the Town of East Hampton dated September 13, 2022; it is

ORDERED that this CPLR Article 78 petition to reverse, annul, and set aside a determination by respondent Town of East Hampton Zoning Board of Appeals dated September 13, 2022 is granted, for the reasons set forth herein; and it is further

ORDERED that respondent Zoning Board of Appeals of the Town of East Hampton is directed to grant to petitioners, Dante Brittis and Accabonac LLC, a natural resources special permit and setback variances for the renovation and expansion of a single family dwelling on the subject property, located at 330 Gerard Drive in the hamlet of Springs, within ten (10) days from the date of this Order.

Before the Court is a CPLR Article 78 petition challenging the decision of respondent Zoning Board of Appeals of the Town of East Hampton ("Board" or "ZBA"), which denied the application of the petitioner as described above. The petitioner sought relief in two species at the ZBA, including variances and a special permit.

The subject waterfront parcel at 330 Gerard Drive ("Brittis home") in the hamlet of Springs is a flag lot located on Accabonac Harbor in the A2 Residential Zoning District. The parcel is further burdened by inclusion in the Harbor Protection Overlay District. The application was correctly determined by the Board to be a Type II action under SEQRA, presumptively deemed to be of no environmental significance under the Environmental Conservation Law. The New York State Department of Environmental Conservation (NYSDEC) issued a tidal wetlands permit for the proposed improvements prior to the Board hearing (NYSCEF Exhibit 44).

It is uncontroverted that the Brittis home was built in 1971. Averments of petitioner's counsel in the transcript of hearing from May 17, 2022 reveal that the petitioner is part of a family that has owned the home for some 50 years time. Petitioner sought a Natural Resources Special Permit and four setback variances (from wetlands) under the East Hampton Code in order to create a second floor bedroom within the existing footprint of the home, and to upgrade the on-site sanitary system to state of the art. It must be underscored that the variance relief sought here was technical in nature in that the setbacks from wetlands are an existing condition for this legal single family home. While the matter was sub judice before the Board, a revised plan was introduced showing a reduction in the size of the second floor addition from 502 square feet to 383.5 square feet and elimination of an outdoor shower. The concomitant effect of the revised plan was a lower profile to the second floor area of the home; about 5 feet lower than as originally presented. As reflected in the transcript of hearing, this appears to have been a nod to [*2]concerns that were raised by Board members and neighbors respecting view corridors in the area; although it was conceded that there are other nearby two story homes. The Court finds it disturbing that the proposed substantive changes to the plan were not reflected in the Board's written decision, because it suggests that the specific features of this "not egregious" proposal (see Board Determination, NYSCEF Exhibit 2 at page 3) were not fully and fairly considered. Indeed the transcript of hearing reveals a Board devoted to chronicling the "pristine" nature of the surrounding land and water, but utterly failing to particularize how and why the modest addition proposed by the petitioner would have any deleterious effect on surrounding land and water. Stated another way, there is no articulation in the Board's decision that a grant of the relief sought would allow petitioner to use his land in derogation of the rights of others.

A review of the written decision of the Board, the transcript of hearings and the exhibits which constitute a return of the record, together with all of the papers submitted by all counsel on this CPLR Article 78 Proceeding, compels a reversal of the Board's decision.

The law of zoning has a rich history in the United States, and the antecedents of the law under consideration in this special proceeding deserve some recognition. Borrowed from German jurisprudence and encouraged by wide circulation of a model state enabling act from the U.S. Department of Commerce at the dawn of the twentieth century, zoning was first subjected to constitutional scrutiny at the United States Supreme Court in Village of Euclid v Ambler Realty Co., 272 US 365, 47 S.Ct. 114 (1926). Nearly one hundred years later, The Euclid case provides guideposts in zoning law and practice. The following is exemplary:

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim �sic utere tuo ut alienum non laedas,' which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew.

In upholding the constitutionality of zoning, the high court's use of a Latin phrase laid the cornerstone of American zoning thusly: "So use your own so as not to harm another's". This essential tenet is captured in the balancing test found in the law of New York at Town Law section 267-b(3)(b) and its companions in the Village Law and City Law, and it is as relevant to the matter at bar as it was to the litigants before the high court in 1926.

As related also to the present application, the law is well settled in the State of New York that a Court may not substitute its own judgment for that of a reviewing board (see Matter of Janiak v Planning Bd. of Town of Greenville,159 AD2d 574, 552 NYS2d 436 [2d Dept] appeal denied 76 NY2d 707 [1990]; Matter of Mascony Transp. & Ferry Serv. v Richmond, 71 AD2d 896, 419 NYS2d 628 [2d Dept 1979] aff'd 49 NY2d 969 [1980]. Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court [*3]may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see Matter of Pecoraro v Board of Appeals of Town of Hempstead,2 NY3d 608, 781 NYS2d 2324 [2d Dept 2004]; Matter of Castle Props. Co. v Ackerson,163 AD2d 785, 558 NYS2d 334 [3d Dept 1990]). It is, therefore, indisputable that the standard of review applied to the Board on petitioner's application is whether its decision is arbitrary, capricious and/or unlawful.

The Court's role in reviewing an administrative or quasi-judicial decision is not to decide whether the agency's determination was correct or to substitute its own judgment for that of the agency, but to ascertain whether there was a rational basis for the determination (see Matter of Sasso v Osgood,86 NY2d 374, 633 NYS2d 239 [1995]; Matter of Chemical Specialities Mfrs. Assn v Jorling,85 NY2d 382, 626 NYS2d 1 [1995]; Matter of Warder v Board of Regents of Univ. Of State of NY,53 NY2d 186, 440 NYS2d 875 [1981]). It is fundamental that when reviewing a determination that an administrative agency alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency; if the reasons relied on by the agency do not support the determination, then the administrative order must be overturned (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs.,77 NY2d 753, 758, 570 NYS2d 474 [1991]; see also Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of NY,16 NY3d 360, 922 NYS2d 224 [2011]; Matter of Filipowski v Zoning Bd. of Appeals of Village of Greenwood Lake,77 AD3d 831, 909 NYS2d 530 [2d Dept 2010]) appeal after remand 101 AD3d 1001, 956 NYS2d 183 [2d Dept 2012]; Matter of Alfano v Zoning Bd. of Appeals of Vil. of Farmingdale, 74 AD3d 961, 902 NYS2d 662 [2d Dept 2010]). Further, the court "may not weigh the evidence or reject the choice made by the zoning board 'where the evidence is conflicting and room for choice exists'" (Matter of Calvi v Zoning Bd. of Appeals of City of Yonkers, 238 AD2d 417, 418, 656 NYS2d 313 [2d Dept 1997]).

A court may set aside a zoning board's determination if the record reveals that the board acted illegally, or arbitrarily, or abused its discretion, or simply succumbed to generalized community pressure (Matter of Pecorano v Board of Appeals of Town of Hempstead, 2 NY3d 608, 781 NYS2d 234 [2004]; Matter of Abbatiello v Town of North Hempstead Board of Zoning Appeals,164 AD3d 785 84 NYS3d 250 [2d Dept 2018]; Matter of Cacsire v City of White Plains Zoning Bd. of Appeals,87 AD3d 1135, 930 NYS2d 54 [2d Dept] lv. denied 13 NY3d 716, 895 NYS2d 316 [2011]); Matter of East Hampton Indoor Tennis Club, LLC v Zoning Bd. of Appeals of Town of E. Hampton, 83 AD3d 935, 937, 921 NYS2d 308 [2d Dept 2011]; Brancato v Zoning Bd. of Appeals of City of Yonkers, NY, 30 AD3d 515, 515, 817 NYS2d 361 [2d Dept 2006]). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (see Matter of Peckham v Calogero, supra; Matter of Deerpark Farms v. Agricultural and Farmland Prot. Bd., supra; Matter of Manko v New York State Div. of Housing & Community Renewal, 88 AD3d 719, 930 NYS2d 72 [2d Dept 2011]). "In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis...[a] determination will not be deemed rational if it rests on entirely subjective considerations...and lacks an objective factual basis" (Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals,95 AD3d 1118, 1119, 944 NYS2d 277 [2d Dept 2012]; see also Matter of Ifrah v Utschig,98 NY2d 304, 746 NYS2d 667 [2002]; Matter of Abbatiello v Town of North Hempstead Board of Zoning Appeals, 164 AD3d 785, 84 [*4]NYS3d 250 [2d Dept 2018]; Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburg,68 AD3d 62, 73, 886 NYS2d 442 [2d Dept 2009].

A local zoning board has broad discretion in considering applications for area variances (see Matter of Pecorano v Board of Appeals of Town of Hempstead,2 NY3d 608, 781 NYS2d 234 [2004]; Matter of Cowan v Kern,41 NY2d 591, 394 NYS2d 579 [1977]); Matter of Inlet Homes Corp. v Zoning Board of Appeals of the Town of Hempstead, 304 AD2d 758, 757 NYS2d 784 [2d Dept 2003], and its interpretation of its local zoning ordinances is entitled to great deference (see Matter of Toys "R" Us v Silva,89 NY2d 411, 654 NYS2d 100 [1996]; Matter of Gjerlow v Graap,43 AD3d 1165, 842 NYS2d 580 [2d Dept 2007]; Matter of Brancato v Zoning Bd. of Appeals of City of Yonkers, NY,30 AD3d 515, 817 NYS2d 361 [2d Dept 2006]; Matter of Ferraris v Zoning Bd. of Appeals of Village of Southampton,7 AD3d 710, 776 NYS2d 820 [2d Dept 2004]). In reviewing an administrative determination, a court must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious (see Matter of Peckham v Calogero, 12 NY3d 424, 863 NYS2d 751[2009]; Matter of Sasso v Osgood, 86 NY2d 374, 384-85, 633 NYS2d 259 [1995]; Matter of Deerpark Farms v Agricultural and Farmland Prot. Bd., 70 AD3d 1037, 896 NYS2d 126 [2d Dept 2010]; see Matter of Bassano v Town of Carmel Zoning Bd. of Appeals, 56 AD3d 665, 868 NYS2d 677 [2d Dept 2008]). A determination is rational "if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition" (Matter of Halperin v City of New Rochelle, 24 AD3d 768, 772, 809 NYS2d 98 [2005]; see Matter of Ifrah v Utschig, 98 NY2d 304, 308, 746 NYS2d 667 [2002]). "When reviewing the determinations of a Zoning Board, courts consider 'substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" (Matter of Sasso v Osgood, 86 NY2d 374, 384 n. 2, 633 NYS2d 259 [1995]; see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949, 910 NYS2d 123 [2d Dept 2010]; see also Matter of Campbell v Town of Mount Pleasant Zoning Bd. of Appeals, 84 AD3d 1230, 1231, 923 NYS2d 699 [2d Dept 2011]). It so follows that the determination of a zoning board should be sustained upon judicial review if it is not illegal or arbitrary and capricious, and it has a rational basis (see Matter of Sasso v Osgood, 86 NY2d at 384, 633 NYS2d 259; Matter of Carrano v Modelewski, 73 AD3d 767, 899 NYS2d 634 [2d Dept 2010]). So long as a rational basis exists, a court may not substitute its own judgment for that of a Zoning Board, even though a contrary determination may be supported by the record, the court would have decided the matter differently, or there are some factors weighing in favor of a different result (see Matter of Pecorano v Board of Appeals of Town of Hempstead,2 NY3d 608, 781 NYS2d 234 [2004]; Matter of Toys "R" Us v Silva,89 NY2d 411, 654 NYS2d 100 [1996]; Matter of Ferraris v Zoning Bd. of Appeals of Village of Southampton, 7 AD3d 710, 776 NYS2d 820 [2d Dept 2004]).

A zoning board considering a request for an area variance is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the area variance is granted (see Village Law 7-712-b [3][b]; Matter of Pinnetti v Zoning Bd. of Appeals of Village of Mt. Kisco, 101 AD3d 1124, 956 NYS2d 565 [2d Dept 2012]; Matter of Jonas v Stackler,95 AD3d 1325, 945 NYS2d 405 [2d Dept 2012]; Matter of Colin Realty, LLC v Town of Hempstead,107 AD3d 708, 966 [*5]NYS2d 501 [2d Dept 2013]; Matter of Pecorano v Board of Appeals of Town of Hempstead,2 NY3d 608, 781 NYS2d 234 [2004]; Matter of Daneri v Zoning Bd. of Appeals of Town of Southold,98 AD3d 508, 949 NYS2d 180 [2d Dept], lv denied 20 NY3d 852, 956 NYS2d 485 [2012]. A zoning board also must consider whether (1) 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) the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district and (5) the alleged difficulty was self-created (see Town Law §267-b [3] [b]; Matter of Blandeburgo v Zoning Bd. of Appeals of Town of Islip,110 AD3d 876, 973 NYS2d 693 [2d Dept 2013]; Matter of Davydov v Mammina,97 AD3d 678, 948 NYS2d 380 [2d Dept 2012]). While the last factor is not dispositive, neither is it irrelevant (Ifrah v Utschig, 98 NY2d 304, 746 NYS2d 667 [2002]). However, a zoning board is not required to justify its determinations with evidence as to each of the five statutory factors, as long as its determinations "balance the relevant considerations in a way that is rational" (Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburg, 68 AD3d 62, 73, 886 NYS2d 442 [2d Dept 2009]; Matter of Jacoby Real Prop., LLC v Malcarne,96 AD3d 747, 946 NYS2d 190 [2d Dept 2012]; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals,43 AD3d 926, 841 NYS2d 650 [2d Dept 2007]).

The written decision of the Board, like the colloquy at the hearing, never relates the proposed improvements to the environmental sensitivities of the area such that a reasonable mind would comprehend just what kind of harm would obtain as a result of the issuance of the special permit and the requested variance relief. The Town's chief environmental analyst waxed on at great length about the environmental sensitivity of the area, including a number of designations (Critical Environmental Area, Important Bird Area, etcetera) without explaining how the modest addition as proposed would adversely affect other properties in the area or manifest some harm to the environment. Even worse is the short shrift given by the Board to that aspect of petitioner's plans that included replacement of a fifty year old block cesspool with a state of the art system designed to mitigate nitrogen migration into the surrounding tidal waters.

While the Board did hear from the Town's chief environmental analyst, it is unclear whether he was offered as an expert or lay witness. For purposes of the instant proceeding the Court will credit him as an expert. His testimony however, cannot buttress the denial of the application because it was not based on scientific data or empirical facts (Matter of Jonas v Stackler, supra; Matter of Frank v Scheyer, 227 AD2d 558, 642 NYS2d 956 [2d Dept 1996]). The testimony of the chief environmental analyst was lacking in any authoritative conclusions related to the proposed improvements and any claimed adverse effect those improvements might have on the surrounding land and water, or other nearby landowners. Quite to the contrary, the testimony was conclusory. This witness admitted that the petitioner's request was reasonable, and without scientific elaboration, proclaimed it incongruous due to the sensitive nature of the area. References made in the opposition papers and evidenced by the maps in the record of nearby properties acquired by the Town of East Hampton for conservation purposes similarly do not prop up this denial. With numerous swaths of open space nearby, it dictates to reasonable minds a heightened obligation impressed upon the Board to articulate how, exactly, a benign [*6]addition with no footprint expansion and a far superior sanitary system would have a deleterious effect on the surrounding land and water, or otherwise be harmful to anyone. That is not what is found in the written determination of the Board, or in the transcript of hearing.

Respecting the special use permit sought by the petitioner, the law is well-settled in New York that uses so prescribed by local law are presumptively harmonious in the zones in which they are conditionally permitted(Matter of Marcus v Planning Bd. of the Vil. of Wesley Hills, 199 AD3d 1007, 1008, 154 NYS3d 822 [2d Dept 2021] quoting Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243, 331 NYS2d 645 [1972]). Following the petitioner's presentation, including the amended plan which reduced the second floor area and lowered the height of the roof, it was incumbent on the Board to grant the permit, or upon a denial, clearly set forth the reasons for denial. In the same vein, as with the requested variances, the Board's written determination fails to relate the features of the proposed addition to the permit criteria in any meaningful way that would justify denial of the permit. Judicial review of determinations made on special use permit applications is limited to ascertaining whether the challenged action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Yorktown Smart Growth v Town of Yorktown, 168 AD3d 957, 958, 92 NYS3d 344 [2d Dept 2019]; Matter of Carnelian Farms, LLC v Leventhal, 151 AD3d 844, 845, 56 NYS3d 552 [2d Dept 2017]). The Court determines that the Board's determination falls squarely within that realm.

Accordingly, the petition is granted in its entirety, the matter is remanded and the Board is Ordered to grant to the petitioners, Dante Brittis and Accabona LLC, a natural resources special permit and setback variances for the renovation and expansion of a single family dwelling on the subject property, located at 330 Gerard Drive in the hamlet of Springs, within ten (10) days from the date of this Order.

The foregoing constitutes the decision and Order of the Court.