Upon the reading and consideration of NYSCEF Document Nos. 1 through 46 and judicial notice of the decisions and orders in Suffolk County Supreme Court Index Nos. 003783/2019, 620453/2021, and 611504/2022 it is hereby:

ORDERED AND ADJUDGED that the Article 78 branch of the petition/complaint is denied and dismissed (motion seq. 001); and it is further

ORDERED that the petitioners/plaintiffs' motion for summary judgment on the declaratory judgment branch of the petition/complaint is denied (motion seq. 002); and it is further

ORDERED AND ADJUDGED that upon searching the record on the declaratory judgment branch of the petition/complaint, summary judgment is granted in favor of the respondents/defendants and the declaratory judgment action is dismissed; and it is further

ORDERED that the petitioners/plaintiffs' motion for sanctions against the respondents/defendants is denied (motion seq. 002).

This is a hybrid Article 78 proceeding and declaratory judgment action against the Village of Bellport Zoning Board of Appeals (ZBA) and the Village of Bellport (Village) (collectively, Respondents) by petitioners/plaintiffs Francisco and Ashley Cuffaro (Petitioners or Cuffaros). The first claim in the combined petition/complaint is brought pursuant to Article 78 and seeks a judgment annulling and setting aside the ZBA decision of March 21, 2024 and a "declaration" that the property owned by Petitioners, tax map lot # 0202-011.00-03.00-007.002 (Tax Map Lot 7.2 or 2 Gerard Street), is a "legally existing buildable lot" (NYSCEF Doc No. 1, ¶ 57). The declaratory judgment claim for relief duplicates and restates the relief sought in the Article 78 claim and alleges the Petitioners are "entitled to a declaration that Tax Map Lot 7.2 is a legally existing subdivided lot" (id., at ¶ 60).^[FN1]

Currently before the Court are Petitioners' Article 78 proceeding (motion sequence no. 001), Petitioners' motion for summary judgment on the declaratory judgment action, and Petitioners' motion for sanctions against the ZBA and its counsel (motion sequence no. 002). Respondents have submitted an answer and return, as well as opposition to the Article 78 petition and to both of Petitioners' motions.

Tax Map Lot 7.2 is a vacant parcel which is substandard under the current minimum buildable lot size standards in the Village Code in effect since 1992 (1992 Upzoning): it measures 31,593 and the minimum buildable lot size permitted under the current Village Code is 40,000 square feet ^[FN2] . Petitioners closed title on Tax Map Lot 7.2 on November 9, 2018, having waived the contract clause which provided that closing of title was subject to their obtaining a building permit for a single family home.

Prior to 1978 Tax Map Lot 7.2 was part of a larger lot, Tax Map Lot 7.0. It is undisputed that Tax Map Lot 7.2 was illegally subdivided by deed in 1978 because it was conveyed to the Cuffaros' remote predecessor in title by splitting it from larger Tax Map Lot 7.0 without the requisite subdivision approval by the Village Planning Board (Planning Board).

Including this hybrid proceeding and action, Tax Map Lot 7.2 has been the subject of four litigations commenced by Petitioners since 2019. The decisions and orders in the first three litigations are highlighted below to provide context for this proceeding/action.

The first litigation arose from the ZBA's June 16, 2019 denial of Petitioners' application [*2]for area variances to construct a single family home and deck on their substandard parcel (2019 ZBA Variance Denial). Petitioners' Article 78 petition challenging the ZBA's decision was denied by decision and order dated December 16, 2020 (Index No. 003783/2019, St. George, A.J.S.C., NYSCEF Doc No. 10) (Variance Denial Order).

In finding that the ZBA's 2019 Variance Denial was neither arbitrary nor capricious, did not constitute an abuse of discretion and was not predicted upon errors of law, the Variance Denial Order ruled that the ZBA took into account all of the evidence presented to it. This included evidence that the proposed side yard deck constituted a 100% deviation from the applicable Village code and affirmed, among other things, the ZBA's finding that the 21% deviation from the minimum lot size requirement was substantial, and that Petitioners' hardship was self-created because they closed title prior to obtaining the necessary approvals. Although Petitioners filed a notice of appeal of the Variance Denial Order, the record does not reflect that the appeal was perfected.

Notably, neither the 2019 ZBA Variance Denial nor the Variance Denial Order contained any indication that the ZBA or the building inspector or anyone in the Village government was aware that the Tax Map Lot 7.2 had been illegally subdivided by deed. As detailed below, the ZBA's lack of awareness is significant to the determination of the instant proceeding/action.

Petitioners did not seek another area variance. Rather, in July 2021, the Cuffaros applied to the building department for a building permit to construct a single family home. The application asserted that Petitioners were entitled to a building permit for a newly designed home because Tax Map Lot 7.2 was grandfathered as a preexisting non-conforming buildable lot under the Village Code provisions in effect prior to the 1992 Upzoning and, therefore, only required 30,000 square feet in order to be developed i.e., the minimum lot size allowed prior to 1992.

A letter submitted by the Cuffaros' counsel to the building inspector (July 2021 Letter) (Exhibit B to the instant petition, NYSCEF Doc. No. 3) as part of the building permit application acknowledged that the original deed for Tax Map Lot 7.2 was filed with the Suffolk County Clerk in 1978 when the owners of Tax Map Lot 7.0 (the Paiges) split Tax Map Lot 7.0 into Tax Map Lots 7.1 and 7.2 by the conveyance of a deed for a portion of the original buildable Tax Map Lot 7.0. The Paiges retained title to the 2.7 acre parcel now denominated as Tax Map Lot 7.1 and conveyed the 31,593 square foot parcel now known as Tax Map Lot 7.2 to Cuffaros' remote predecessor in title.

The July 2021 Letter admitted that the Paiges' division of the property by deed in 1978 circumvented the Village Code requirement which required all divisions of property into two or more lots to be approved by the Planning Board. The July 2021 Letter also acknowledged that when Tax Map Lot 7.2 was conveyed the minimum lot area requirement was 30,000 square feet, but that a 1992 Village zoning amendment increased the minimum lot size requirement to 40,000 square feet, rendering Tax Map Lot 7.2 substandard.

The July 2021 Letter contended that Tax Map Lot 7.2 nevertheless should be recognized as a single and separate buildable lot notwithstanding its size and the lack of subdivision approval because Tax Map Lot 7.1 had been granted certificates of occupancy in the years since 1978 deed conveyance. The July 2021 Letter argued that under the ruling in Matter of Lund v Edwards, 118 AD2d 574 [2d Dept 1986] the grants of certificates of occupancy to Tax Map Lot 7.1 required the ZBA to legitimize the subdivision by deed notwithstanding the lack of Planning Board approval. In other words, according to Petitioners, since the building department [*3]recognized the legal separateness of Tax Map Lot 7.1 by issuing certificates of occupancy, it was compelled to recognize Tax Map Lot 7.2 as a separate buildable parcel. Petitioners asserted that since the Village Code grandfathered lots which were legally existing prior to the 1992 Upzoning from 30,000 to 40,000 square feet and since the Lund reasoning rendered Tax Map Lot 7.2 legal at the time of the 1978 deed conveyance, the 30,000 square foot minimum was applicable.

The building inspector denied the building permit application premised on the substandard size of Tax Map Lot 7.2, as well as its inadequate frontage. Petitioners then brought an application to the ZBA, not for a variance, but, rather, to appeal the building inspector's decision to deny a building permit. The ZBA application sought to "overturn the denial of a building permit by [the building inspector] and to direct the issuance of a building permit on the grounds that the Village is estopped from claiming that the applicant's property was created by an illegal subdivision since the Village has repeatedly treated that other lot, 7.1, as legally subdivided" (NYSCEF Doc. No. 15). The ZBA denied Cuffaros' appeal and upheld the building inspector's determination by decision dated October 5, 2021.

The second litigation ensued. Petitioners commenced a hybrid Article 78 proceeding and declaratory judgment action (Index No. 620453/2021). The Article 78 proceeding sought to vacate the ZBA's denial and sought mandamus directing the building inspector to issue a building permit. The declaratory judgment portions of the petition/complaint sought a judgment that Tax Map Lot 7.2 was a legally existing subdivided and buildable parcel.

Petitioners' reply submission, filed and served subsequent to the filing and service of the ZBA's answer and return, contained a document which Petitioners then recently had obtained pursuant to a Freedom of Information Law (FOIL) request and which had never been presented to the ZBA (NYSCEF Doc. No. 46 in the instant proceeding/action). The 45 year old document contained minutes from an October 11, 1977 ZBA hearing. The minutes stated that the Paiges had been granted an area variance from the minimum front yard requirement "for the division of property" owned by the Paiges (1977 ZBA Approval) (NYSCEF Doc No. 21). The first parcel was described as containing "an existing dwelling [that] shall have frontage of 13.97 ft. on Gerard Street and an area of 2.737 acres," which is currently Tax Map Lot 7.1. The second parcel was described as having "a frontage of 150 ft. on Gerard Street and an area of 31,593 sq. ft. (.725 acres)," which is Tax Map Lot 7.2 (NYSCEF Doc. No. 21).

The reply argued that the 1977 ZBA Approval of a variance "for the division of property" supported Petitioners' claims that Tax Map Lot 7.2 is a separate buildable parcel. Oral argument was held on June 27, 2022, after which counsel for the ZBA was given permission to sur-reply to the new material in Petitioners' reply, but which had never been considered by the ZBA. On May 16, 2023 a decision and order were issued which granted the branch of the petition which sought to vacate ZBA's decision and remitted the application to the ZBA (St. George, A.J.S.C.) (Remittal Order).

The Remittal Order placed significance on the assignment of a tax map number to Tax Map Lot 7.2 and to the 1977 frontage area variances "for the subdivision" granted by the ZBA. The Remittal Order further emphasized the holdings in Lund, Matter of Shaughessy v Roth, 204 AD2d 333 [2d Dept 1994], and Matter of Richter v Curran 5 AD3d 687 [2d Dept 2004] and noted that they:

stand for the principle that a municipality's issuance of, for example, building permits to a similarly situated lot effectively sanctions the subdivision of that property previously [*4]done without necessary approval, and contributes, in part to the creation of a petitioner's difficulties. Furthermore, according to this line of cases, 'the Board cannot now utilize the alleged illegal subdivision as a ground for denying the application of the petitioner' (Lund, supra at 575). The fact that Lund involved two substandard lots does not dilute the principles of fairness involved in these cases. In Shaughessy, the planning board only tentatively approved subdivision of a larger parcel but no final subdivision map was ever filed; yet the Town subsequently issued a building permit to the owner of the larger, conforming parcel, effectively sanctioning the creation of the subdivision.

(NYSCEF Doc. No. 4).

The Remittal Order also noted:

The Village's contention in this matter that the house on the larger lot, Lot 7.1, existed before the Paige lot was split into two lots is unavailing especially in view of the Village's argument discussed herein above that the variance granted to Lot 7.1 for substandard footage expired in 1978 because there was no planning board approval of the subdivision, yet the Village has apparently not pursued that issue with Lot 7.1 and instead, granted four or five certificates of occupancy to that lot over the course of the last forty (40) years before the petitioners brought their first application for a building permit.

(id.)

Finally, the Remittal Order ruled:

The matter is remitted to the ZBA for determination in accordance herewith and taking into consideration the entire history of the subject property as presented by petitioners upon the submission of the building permit and at the September 30, 2021 hearing, the entirety of the Village's records related thereto, including the 1977 ZBA minutes, and the relevant caselaw.

(id.)

There is no indication in the record that the Remittal Order was appealed.

Prior to the ZBA scheduling a hearing in compliance with the Remittal Order, the Cuffaros brought an action pursuant to 42 USC §§ 1983 and 1988 against the Village, the ZBA and its members, and the building inspector seeking $5 million in damages. The defendants' pre answer motion to dismiss the complaint for failure to state a claim was granted since neither violations of the Cuffaros' procedural and substantive due process rights under the Fifth and Fourteenth Amendments nor their Fourteenth Amendment Equal Protection rights had been pled (Section 1983 Dismissal Order) (Index No. 611504/2022, NYSCEF Doc. No. 50). The Section 1983 Dismissal Order held that even where a determination is made in an Article 78 proceeding that a land use denial was arbitrary, capricious and without rational basis, a denial of a constitutionally protected property interest is not established, citing Bower Assocs. v Town of Pleasant Valley, 2 NY3d 617 [2004]. The Section 1983 Dismissal Order further dismissed the equal protection claims because the complaint failed to identify comparators and was devoid of any allegation that the Cuffaros were denied a building permit due to "impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional [*5]rights, or malicious or bad faith intent to injure a person" (LaTrieste Rest. & Cabaret Inc. v Village of Port Chester, 40 F3d 587, 590 [1994]).

As noted above, the Article 78 claim seeks a judgment annulling and setting aside the ZBA decision of March 21, 2024 (ZBA Remittal Decision) and a "declaration" that Tax Map Lot 7.2 is a "legally existing buildable lot" (NYSCEF Doc No. 1, ¶ 57).

The ZBA Remittal Decision was issued after a hearing held on November 16, 2023 and a meeting on January 18, 2024. The issue on remittal was whether the ZBA was required to interpret the Zoning Code so as to require the building inspector to issue a building permit for the construction of a proposed single family residence on Tax Map Lot 7.2.^[FN3] Pursuant to the Remittal Order the ZBA reviewed the 1977 ZBA Approval for the first time and considered the Lund and Shaughessy decisions. The ZBA Remittal Decision recited the directive in the Remittal Order and took "into consideration the entire history of the subject property as presented by petitioners upon the submission of the building permit and at the September 30, 2021 hearing, the entirety of the Village's records related thereto, including the 1977 ZBA minutes, and the relevant caselaw" (NYSCEF Doc. No. 2). The ZBA Remittal Decision made five findings, outlined below.

The first finding was that the 1977 ZBA Approval for a frontage variance "for the subdivision" did not approve the subdivision. Rather, the ZBA found that "the variance for minimum width along the street frontage . . . was required prior to obtaining Planning Board approval for the subdivision of 2 Gerard Street into two lots" (NYSCEF Doc. No. 2). The ZBA Remittal Decision went on to note that the frontage variance "did not and could not approve the subdivision, it simply approved the variance for street frontage, in order to bring a conforming application to the Planning Board" for purposes of subdividing property into two or more lots (id.). Since there is no record of Planning Board approval and there was no legal subdivision, the ZBA concluded that the original lot [Tax Map Lot 7.0] remains as one lot for purposes of zoning.

The ZBA's second finding was that the house, pool, and cabana on the original parcel (Tax Map Lot 7.0) were all constructed with building permits issued prior to the Paiges' illegal subdivision by deed. The ZBA found that since the subdivision was not approved by the Planning Board, the original buildable lot remained as one for purposes of zoning and the permits and/or certificates of occupancy granted after 1978 were issued to the original buildable lot (Tax Map Lot 7.0).

The third finding overlapped with the first two and noted that the separate tax map [*6]designations for Tax Map Lots 7.1 and 7.2 did not render the lots single and separate for purposes of zoning. It also noted that the 1977 ZBA Approval for the frontage variance lapsed after one year by operation of the Village Code provisions and there was no follow up application to the ZBA to extend the variance approval.

The ZBA found that neither the grandfathering provisions of Section 90-54 (c) of the Village Code in effect at the time of the illegal division by deed, Section 21-434 (c) of the 1993 Village Code, nor Section 1-3 (1) of the current Village Code applied to Tax Map Lot 7.2 because it was never a legal buildable lot. Therefore, it had no rights as a pre-existing non-conforming buildable lot at the time of the 1992 Upzoning requiring 40,000 square feet in lot size.

The ZBA found that Tax Map Lots 7.1 and 7.2 were not "similarly situated" to the parcels at issue in Lund and Shaughessy. Among the reasons cited was the ZBA's finding that Lund was inapplicable because the zoning board in Lund, with actual knowledge that the original parcel at issue had been illegally subdivided, chose to issue a variance for one of the resulting substandard lots, but three months later, denied a variance for the other substandard lot that was created by the same illegal subdivision. The ZBA distinguished Lund from the Petitioners' facts because the structures on the original buildable Tax Map Lot 7.0 had a vested right to remain and the post 1978 certificates of occupancy were issued to the original building Tax Map Lot 7.0, which still existed as one buildable parcel for zoning purposes.

Petitioners then commenced the instant hybrid special proceeding and declaratory judgment action on April 19, 2024.

"In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion" (Matter of Pecoraro v Bd. of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]). "Under a zoning ordinance which authorizes interpretation of its requirements by the board of appeals, specific application of a term of the ordinance to a particular property is, therefore, governed by the board's interpretation, unless unreasonable or irrational" (Matter of Frishman v Schmidt, 61 NY2d 823, 825 [1984]; Matter of Sanantonio v Lustenberger, 73 AD3d 934, 935 [2d Dept 2010]. "It matters not whether, in close cases, a court would have, or should have, decided the matter differently" (Pecoraro, 2 NY3d at 613). A reviewing court may not substitute its judgment for that of the ZBA, even if there is substantial evidence supporting a contrary determination (Matter of Conway v Town of Irondequoit Zoning Bd. of Appeals, 38 AD3d 1279, 1280 [4th Dept 2007]).

Moreover, it is axiomatic that estoppel is not available to prevent enforcement of zoning laws (Matter of Parkview Assoc. v City of New York, 71 NY2d 274 [1988]; Shumaker v Town of Cortlandt, 143 AD2d 999 [2d Dept 1988]).

In compliance with the Remittal Order, the ZBA considered the new evidence of the 1977 ZBA Approval and the history of the property as indicated in its first and third findings. As noted above, the ZBA correctly found that the variance granted in the 1977 ZBA Approval "for [*7]the subdivision" did not, by its terms, approve the subdivision. Rather, this language indicates that the first requirement in the two-step subdivision process had been achieved.

Village zoning boards have no authority to grant subdivision approval, which is in the exclusive province of either a village board of trustees or, if delegated by the board of trustees, to a planning board. The basic land use rule is set forth in Village Law § 7-728, which provides that a "village board of trustees may by resolution authorize and empower the planning board approval preliminary and final plats of subdivision showing lots, blocks or sites, with or without streets or highways." On the other hand, Village Law § 7-712-b (3) authorizes only a zoning board to grant area variances. In conformance with this statewide statutory scheme, Section 18-1 of the Bellport Village Code provides that "any division of property in the village into two (2) or more lots shall require the approval of the planning board" and Section 21-105 confers upon the ZBA the power to grant area variances.

The power to control the subdivision of land is not "entrusted to a zoning board of appeals" (Van Deusen v Jackson, 35 AD2d 58, 61 [2d Dept 1970], aff'd 28 NY2d 608 [1971]). "The statutory scheme established by the relevant State enabling statutes and the local zoning ordinance reflect this dichotomy between the zoning and planning functions of local government" (Matter of Marx v Zoning Bd. of Appeals of Vil. of Mill Neck, 137 AD2d 333, 337 [2d Dept 1988]). "Zoning 'has proven characteristically ineffective in treating with the problems attending subdivision', and thus the need for the [p]lanning [b]oard and its power to regulate subdivisions" (id., quoting Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 372 [1972]); see eg, Matter of Estate of Stelling v Gaudioso, 204 AD3d 788 [2d Dept 2022]).

The fundamental distinction between the 1977 ZBA Approval and the necessary Planning Board subdivision approval is illustrated in the land use guidance materials provided by the New York State Department of State:

If any lot in the proposed subdivision fails to meet the dimensional requirements in a zoning regulation, the applicant must seek an area variance from the local zoning board of appeals. For example, an owner of land wishing to create two building lots where one lot would have less than the required lot frontage needs to obtain an area variance from the zoning board of appeals. An area variance from the zoning board of appeals varying the lot frontage requirement is necessary in order that the lot may be built upon for zoning purposes. After the lot owner obtains the area variance, the planning board can proceed to decide on the application for subdivision of the parcel into two lots.

(NYS Dept of State Division of Local Government Services [Subdivision Review in New York State] p. 16).^[FN4]

Furthermore, the filing of the deeds for Tax Map Lots 7.1 and 7.2 with the Suffolk County Clerk is of no significance to the claim that Tax Lot 7.2 is a buildable parcel, since county clerks have the ministerial duty to accept deeds (Matter of MERSCORP, Inc. v Romaine, 8 NY3d 90 [2006])."[A] county clerk [has] a non-delegable duty of recording and indexing written instruments affecting real property" and consideration as to whether the parcel being conveyed has received subdivision approval "is not required" (11 Ops Counsel SBRPS No 17 [*8][2001]). A tax lot is not synonymous with a buildable lot under zoning regulations (see eg, Matter of Committee for Environmentally Sound Dev. v Amsterdam Ave. Redevelopment Assoc. LLC, 194 AD3d 1 [1st Dept 2021]). On the other hand, subdivision maps (also referred to as plats) of parcels located in Suffolk County are to be filed with the County Clerk and can only be accepted if they contain a written endorsement indicating approval by a planning board, of if no planning board, a board of trustees (Real Property Law § 335).

Here, although the 1977 ZBA Approval granted an area variance for the frontage, a subdivision had not and could not have been granted by the ZBA. Apparently, attempts to legalize Tax Map Lot 7.2 as a buildable parcel were abandoned sometime after the 1977 ZBA Approval. According to the Village Code, this variance expired after one year and there is no record of an effort to renew or extend the time limit (Village Code § 21-108). Consequently, the new evidence of the 1977 ZBA Approval did not require the ZBA to interpret the Village Code so as to compel issuance of a building permit for Tax Map Lot 7.2.

The ZBA's second and fifth findings complied with the Remittal Order's direction to consider the certificates of occupancy granted to Tax Map Lot 7.1 and the application of the Lund and Shaughessy holdings as well as the history of the property. The second finding noted that the Tax Map Lots 7.1 and 7.2 remained as one buildable lot for zoning purposes since there was no subdivision approval for Tax Map Lot 7.2.^[FN5] It noted that the certificates of occupancy for the house, pool and cabana were issued before the deed for Tax Map Lot 7.2 was conveyed and, therefore, had vested rights. Thereafter, certificates of occupancy were issued for a greenhouse, a fence and renovations of the pool, house and cabana. The fifth finding distinguished the instant case from Lund and Shaughessy because the Bellport ZBA had no knowledge of the illegal subdivision when it granted the post 1978 approvals to Tax Map Lot 7.1.

Both Lund and Shaughessy involved illegal subdivisions where one of the two tax map lots divided by deed had been granted approvals, despite the boards' actual knowledge that the approved lot was created by an illegal subdivision. In both cases the Appellate Division found that the municipal boards had sanctioned the illegal subdivisions by granting the approvals to one of the two parcels while they had actual knowledge of the subdivision creating the two lots yet, nevertheless, denied approvals to the remaining lot in reliance upon the lack of planning board approval. As the Second Department noted in Lund "despite the [b]oard's awareness of the illegal subdivision it . . . directed the [b]uilding [i]nspector to issue a building permit to . . . the owner of the second lot which had been created as a result of the illegal subdivision" and since the board's decision " 'sanctioned' the original subdivision . . . the [b]oard cannot now utilize the alleged illegal subdivision as a ground for denying the application of the [other lot]" (Lund, 118 Ad2d at 574).

Similarly, in Shaughessy, as the Remittal Order noted, the planning board had preliminarily approved a subdivision which created one parcel which conformed to the minimum lot size requirements and a second substandard parcel, but never granted final approval. The substandard parcel was the subject of the Article 78 petition challenging the denial of variances to construct a single family home. Although no final subdivision approval had been issued, the [*9]larger, conforming tax lot was granted building permits. Given the planning board's knowledge of the unauthorized subdivision by way of the preliminary planning board approval at the time it issued building permits to the first parcel, the Court relied on Lund and held that the town "sanctioned" the subdivision when it created the substandard lot.

Accordingly, the lynchpin of both the Lund and Shaughessy holdings was the municipal boards' actual knowledge of the illegal subdivisions at the time they granted building permits to one of the tax lots (see also Matter of Richter v Curran, 5 AD3d 687, 688 [2d Dept 2004] [variance should have been granted where village planning board had knowledge of the subdivision creating a substandard parcel by approving it and thereby "sanctioned" its creation]; Matter of Scholl v Eder, 306 Ad2d 288 [2d Dept 2007]).

Here, it is uncontroverted, particularly given the ZBA's 2019 Variance Denial, that the Village had no prior knowledge that Tax Map Lot 7.2 had been illegally subdivided when it granted the building permits to Lot 7.1. The Village never "sanctioned" the subdivision (see Matter of Reiss v Keator, 150 AD2d 939 [3d Dept 1989] ["Unlike Lund . . . there is no evidence that the [t]own had actual knowledge of the illegal subdivision when the building permit was issued"]). Further evidence of the ZBA's lack of actual knowledge of the illegal subdivision is a 1988 letter by the then building inspector which indicated that Tax Map Lot 7.2 ^[FN6] was buildable under the former minimum zoning lot requirements (NYSCEF Doc No. 23). Had the building inspector known that Tax Map Lot 7.2 had been illegally subdivided, that letter could not have been issued.

Finally, the ZBA's fourth finding that Tax Map Lot 7.2 was not grandfathered as a pre-existing non-conforming lot was neither arbitrary nor capricious. Simply stated, since Tax Map Lot 7.2 was never subdivided by the Planning Board it had no vested rights (Matter of Sullivan Farms IV, LLC, 134 AD3d 1275, 1279 [3d Dept 2015] [without a valid subdivision, petitioner "never had a vested approval from which vested rights could flow"]).

Accordingly, the ZBA complied with the Remittal Order and considered the entire history of Tax Map Lots 7.1 and 7.2 as the petitioners had presented in their building permit application and before the ZBA, the entirety of the Village's records, the 1977 ZBA Approval, and the relevant caselaw. Having abided by the requirements of the Remittal Order ZBA's determination to deny the relief petitioner requested was not made in violation of lawful procedure and was not arbitrary, capricious nor an abuse of discretion. The ZBA's determination had a rational basis and was supported by substantial evidence in the record.

As noted above, this hybrid action/proceeding includes a declaratory judgment action seeking to declare Tax Map Lot 7.2 "a legally existing subdivided lot." Petitioners have brought a motion for summary judgment pursuant to CPLR 3212 in the declaratory judgment action. In so doing they raise a wholly new argument which never was presented to the ZBA: that the Planning Board has been without authority to grant subdivision approvals since 1959.

In support of this contention Petitioners cite to a 1926 provision of New York State Village Law which first allowed village boards of trustees to create planning boards by delegating subdivision plat approval authority from themselves to planning boards where the proposed plats or subdivision maps showed new streets or highways (Village Law § 179-k, L [*10]1926, ch 719). Under the 1926 provision village clerks were required to file certificates attesting to the delegation of such authority with the applicable county clerks. Petitioners then provided a 1949 Village Board of Trustees resolution which delegated such authority to the Bellport Village Planning Board and directed the Bellport Village clerk to file the requisite certificate with the Suffolk County Clerk.

Petitioners then note that in 1959 the applicable section of the 1926 NYS Village Law was amended to expand planning board authority to proposed plats or maps, whether or not the plats showed new streets or highways (L 1959, ch 296, amending Village Law § 179-k, now Village Law § 7-728). Petitioners argue that since its FOIL requests to the Village found no Village resolution authorizing a certificate to be filed with the Suffolk County Clerk pursuant to the 1959 amendments, the Planning Board has been without subdivision jurisdiction over subdivisions proposing no new streets for approximately 65 years, including the time when the Paiges deeded Tax Map Lot 7.2. Respondents counter that the 1949 resolution and certificate to the Suffolk County Clerk were sufficient to authorize the delegation of authority to the Planning Board going forward and that no new certificate needed to be filed with the Suffolk County Clerk after 1959.

Petitioners have pointed to no authority supporting the contention that the Village board of trustees was required to file a second certificate, especially since the Village already had created the Planning Board. Furthermore, even if there were merit to Petitioners' argument absent a resolution the delegation of authority to approve subdivisions where no new streets were planned would have remained with the board of trustees. No authority has been presented for the proposition that subdivisions could be accomplished by deed alone in the event no new streets were proposed.

Since the remaining issues raised in the summary judgment motion were addressed in the Court's decision on the Article 78 petition it is unnecessary to revisit them (Matter of E. Moriches Prop. Owners' Assn., Inc. v Plan. Bd. of Town of Brookhaven, 66 AD3d 895 [2d Dept 2009]; see Bihary v Zoning Bd. of Appeals, City of Buffalo, 206 AD3d 1575 [4th Dept 2022]). Here, both the Article 78 petition and the declaratory judgment complaint sought a declaration that Tax Map Lot 7.2 is buildable. Since a summary determination has been made in the Article 78 proceeding upholding the ZBA's determination that Tax Map Lot 7.2 is not buildable, the identical relief sought on the summary judgment motion is denied.

Further, CPLR 3212 (b) directs that "[i]f it shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such judgment without the necessity of a cross-motion." In accordance with the Article 78 determination and upon searching the record, summary judgment is granted to Respondents dismissing the declaratory judgment complaint (Dunham v Hilco Constr. Co., 89 NY2d 425, 429-30 [1996] ["a court may search the non-moving party with respect to a cause of action or issue that is the subject of the motions before the court"].

Petitioners also request sanctions against the ZBA and its counsel. A court, in its discretion, may award sanctions to any party or attorney in a civil action or proceeding where the attorney or party "engages in frivolous conduct." In accordance with 22 NYCRR 130-1.1 conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken [*11]primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.

The Court, in its discretion, finds that none of the Respondents nor their attorneys have engaged in behavior falling within this definition. Further, sanctions under this section are meant as a tool to shield from frivolous conduct, not as a sword to punish (Matter of Simon, 28 NY3d 35 [2016]); Crusader Ent., LLC v Cussler, 32 Misc 3d 790, 794 [Sup. Ct. New York County, 2011]).

The Court has considered the parties' remaining contentions and determines that they either are without merit or unnecessary to this determination. The foregoing constitutes the decision, order and judgment of the Court.