Carr v. Vill. of Lake George Vill. Bd.
| Decision Date | 29 May 2019 |
| Docket Number | EF2018-65918 |
| Citation | 64 Misc.3d 542,102 N.Y.S.3d 404 |
| Parties | John CARR, Petitioner, v. VILLAGE OF LAKE GEORGE VILLAGE BOARD, Village of Lake George Zoning Board of Appeals, Village of Lake George Planning Board and James D. Quirk, Respondents. John Carr, Petitioner, v. Village of Lake George Planning Board and James D. Quirk, Respondents. |
| Court | New York Supreme Court |
Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for petitioner.
Meyer, Fuller & Stockwell, PLLC, Lake George (Matthew F. Fuller of counsel), for respondents Village of Lake George Village Board, Village of Lake George Zoning Board of Appeals and Village of Lake George Planning Board.
Robert J. Muller, J. Respondent James D. Quirk owns property at 21 Sewell Street in the Village of Lake George, Warren County, which property is located within a Commercial Mixed-Use zoning district. Petitioner owns adjacent parcels at 10 Sewell Street and 33 Canada Street, respectively. In February 2018, Quirk applied to respondent Village of Lake George Zoning Board of Appeals (hereinafter the ZBA) for several variances related to the planned construction of a 12,000 square-foot boat storage facility on his property. Specifically, he requested a variance from the Village's rear setback requirement, as well as variances from the Village's mandatory Architectural Standards and Guidelines (hereinafter Architectural Guidelines) with respect to, inter alia , roof pitch and building materials. The ZBA issued a determination granting the requested variances in April 2018.
In May 2018, petitioner commenced a proceeding pursuant to CPLR article 78 to vacate the determination. This proceeding was ultimately resolved by Stipulation and Order entered on June 18, 2018, with the parties agreeing to vacate the determination without prejudice to the filing of future applications for the requisite variances.
On July 16, 2018, respondent Village of Lake George Village Board (hereinafter the Village Board) adopted Local Law No. 8 of 2018 (hereinafter Local Law No. 8), which provides, in pertinent part:
[R1 at 187].1
In August 2018, Quirk again applied to the ZBA for a 9-foot area variance from the Village's rear setback requirement of 15 feet. He also applied to respondent Village of Lake George Planning Board (hereinafter the Planning Board) for site plan approval relative to the boat storage facility, which application included a request under Local Law No. 8 for waivers from the Architectural Guidelines. Specifically, Quirk requested (1) a waiver of the requirement that "[s]tories shall not exceed 14 feet in height from finished floor to finished ceiling" [R1 at 50], with corresponding approval of a 40-foot tall building with only one storey; (2) a waiver of the requirement that metal siding "shall not be used on any portion of the building" [R1 at 52], with corresponding approval of metal siding for the entire building; (3) a waiver of the requirement that "[f]or gable roofs, the pitch shall be between 6:12 and 14:12" [R1 at 53], with corresponding approval of a nearly flat roof; and (4) waiver of the requirement that eaves shall be "at least 18 inches in width" [R1 at 52], with corresponding approval of eaves 7.25 inches in width.
The ZBA granted Quirk's application for an area variance at its meeting on September 5, 2018. Thereafter, at its meeting on November 7, 2018, the ZBA recognized that the September 5 decision was rendered prior to receipt of the Warren County Planning Board's report on the application, as required under § 220-82 of the Village of Lake George Zoning Ordinance (hereinafter the Zoning Ordinance), and was therefore a nullity. The ZBA — having at that point received the report from the Warren County Planning Board, which indicated that "the application would have ‘no County impact’ " [R1 at 224] — then proceeded to issue a new decision granting the variance.
On October 2, 2018, petitioner commenced a CPLR article 78 proceeding (hereinafter proceeding No. 1) for a judgment (1) annulling, vacating and setting aside Local Law No. 8; (2) enjoining the Planning Board from granting any waivers pursuant to Local Law No. 8; (3) annulling, vacating and setting aside the area variance; and (4) awarding him costs, disbursements and counsel fees in connection with the proceeding.
At its meeting on January 16, 2019, the Planning Board granted the requested waivers under Local Law No. 8 and approved the site plan. Petitioner then commenced another CPLR article 78 proceeding (hereinafter proceeding No. 2) on February 15, 2019 seeking a judgment (1) annulling, vacating and setting aside the waivers; (2) annulling, vacating and setting aside the site plan approval; and (3) awarding him costs, disbursements and counsel fees in connection with the proceeding. Issue has now been joined with respect to both proceedings, which are addressed ad seriatim hereinbelow.
Petitioner alleges six causes of action in proceeding No. 1: (1) Local Law No. 8 violates Village Law § 7-712-b ; (2) the Village Board failed to conduct the requisite review under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]; 6 NYCRR part 617) prior to enacting Local Law No. 8; (3) the ZBA failed to conduct the requisite review under SEQRA prior to issuing the area variance; (4) the ZBA did not weigh the required statutory criteria prior to issuing the area variance; (5) the statutory criteria do not support issuance of the area variance; and (6) Quirk failed to pay the requisite fee for a variance application.
With respect to the first cause of action, petitioner contends that Local Law No. 8 must be vacated because it violates Village Law § 7-712-b. In that regard, Village Law § 7-712-b (3) (a) provides, inter alia , that the ZBA "shall have the power ... to grant area variances, "with Village Law § 7-712-b (3) (b) then setting forth specific factors to be considered in making a determination. Village Law § 7-712-b (3) (c) further provides that the ZBA "shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community."
In Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 297 A.D.2d 38, 746 N.Y.S.2d 506 (2002), the Court of Appeals found that "by enacting Village Law § 7-712-b, the Legislature expressed a desire to preempt the entire field of area variances, thereby precluding a Village from enacting its own standard ( id. at 43, 746 N.Y.S.2d 506 ). The Court of Appeals has described the preemption doctrine as follows:
.
According to the Court of Appeals, "by codifying and enacting a comprehensive standard for area variances, in the explicit effort to eliminate confusion and inconsistent case law, the State clearly evinced an intent to preclude the enactment of [any] conflicting local law[s]" ( Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock , 297 A.D.2d at 44, 746 N.Y.S.2d 506 ).
Here, the Architectural Guidelines — contained within § 220-42 of the Zoning Code — set forth various dimensional and physical requirements including, inter alia , requirements related to "[b]uilding orientation, setbacks and relationship to the street level" [R1 at 49], "[b]uilding proportion [and] size" [R1 at 50], "[b]uilding materials and colors" [R1 at 51] and "[r]oof design" [R1 at 52]. According to petitioner, because Local Law No. 8 authorizes the Planning Board to waive these dimensional and physical requirements — effectively granting area variances — it conflicts with Village Law § 7-712-b (3), which provides that the ZBA "shall have the power ... to grant area variances." Given the Legislature's intent to preclude any conflicting local laws with respect to area variances (see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock , 297 A.D.2d at 43, 746 N.Y.S.2d 506 ), petitioner contends that Local Law No. 8 must be vacated and set aside.
In opposition, respondents contend that Local Law No. 8 is expressly permitted under Village Law §§ 7-725-a (3) and (5). With that said, Village Law § 7-725-a (3) provides as follows:
"Notwithstanding any provisions of law to the contrary, where a proposed site plan contains one or more features which do not comply with the zoning regulations, applications may be made to the [ZBA] for an area variance pursuant to [ Village Law § 7-712-b ], without the necessity of a decision or determination of an administrative official charged with the enforcement of the...
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