In the Matter of Halperin v. City of New Rochelle

• Decision Date: 27 December 2005
• Docket Number: 2004-02193.
• Citation: 809 N.Y.S.2d 98,2005 NY Slip Op 10130,24 A.D.3d 768
• Parties: In the Matter of EDWARD HALPERIN et al., Petitioners, v. CITY OF NEW ROCHELLE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 768

809 N.Y.S.2d 98

2005 NY Slip Op 10130

In the Matter of EDWARD HALPERIN et al., Petitioners, v. CITY OF NEW ROCHELLE et al., Respondents.

2004-02193.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 27, 2005.

Hybrid proceeding pursuant to CPLR article 78, inter alia, in effect, to review three determinations of the respondent Board of Appeals on Zoning of the City of New Rochelle, dated February 5, 2002, February 4, 2003, and February 18, 2003, respectively, which, after a hearing, declined to apply the criteria for determining an application for a use variance to an application for a parking variance and, after a hearing, approved a final environmental impact statement, and, in effect, declined to compel the preparation of a supplemental environmental impact statement in connection with an application for permission to construct a house of worship, and granted the application of the respondent Young Israel of New Rochelle for certain area variances in connection with the construction project, and action for a judgment declaring, inter alia, that the City Council of the City of New Rochelle exceeded its authority when it enacted City of New Rochelle Zoning Ordinance § 331-4.

Ordered that so much of the hybrid proceeding and action as seeks a judgment declaring, inter alia, that the City Council of the City of New Rochelle exceeded its authority when it enacted City of New Rochelle Zoning Ordinance § 331-4, is dismissed as academic; and it is further,

Adjudged that the determinations are confirmed, the petition is otherwise denied, and the proceeding is otherwise dismissed on the merits; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The Supreme Court should have disposed of this hybrid proceeding and action on the merits instead of transferring it to this Court pursuant to CPLR 7804 (g). The transfer of a CPLR article 78 proceeding is authorized when "the substantial evidence issue specified in question four of section 7803" is raised and must be decided in order to dispose of the proceeding (CPLR 7804 [g]). The issue specified in subdivision four of CPLR 7803 is "whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence" (CPLR 7803 [4]). Thus, a "substantial evidence" question is presented only where a quasi-judicial evidentiary hearing has been held (see Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]; Matter of Colton v. Berman, 21 NY2d 322, 329 [1967]). Substantial evidence "is related to the charge or controversy and involves a weighing of the quality and quantity of the proof . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]).

Another type of question that may be raised in a CPLR article 78 proceeding is "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). In applying the "arbitrary and capricious" standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith" (Matter of Cowan v. Kern, 41 NY2d 591, 599 [1977]; see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974] ["Arbitrary action is without sound basis in reason and is generally taken without regard to the facts"]).

Only the latter type of question is involved in this case. This proceeding challenges determinations of the respondent Board of Appeals on Zoning of the City of New Rochelle (hereinafter the Zoning Board). Municipal land use agencies like the Zoning Board are "quasi-legislative, quasi-administrative" bodies (Matter of Cowan v. Kern, supra at 599), and the public hearings they conduct are "informational in nature and [do] not involve the receipt of sworn testimony or taking of `evidence' within the meaning of CPLR 7803 (4)" (Matter of Wal-Mart Stores v. Planning Bd. of Town of N. Elba, 238 AD2d 93, 96 [1998]). While parties may have a right to be heard by such agencies and to present facts in support of their position, the forum in which they do so is not "a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of CPLR 7803 (4)" (Seaview Assn. of Fire Is. v. Department of Envtl. Conservation of State of N.Y., 123 AD2d 619 [1986]). Accordingly, determinations of such agencies are reviewed under the "arbitrary and capricious" standard of CPLR 7803 (3), and not the "substantial evidence" standard of CPLR 7803 (4) (see Matter of Sasso v. Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Wal-Mart Stores v. Planning Bd. of Town of N. Elba, supra at 96; Matter of Bonded Concrete v. Town Bd of Town of Rotterdam, 176 AD2d 1137 [1991]; Seaview Assn. of Fire Is. v. Department of Envtl. Conservation of State of N.Y., supra; Matter of Bravata's Carting v. Town of Huntington, 120 AD2d 521 [1986]; Dan Gernatt Gravel Prods. v. Town of Collins, 105 AD2d 1057, 1058 [1984]; Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 83 AD2d 741 [1981]; see also Lutheran Church in Am. v. City of New York, 35 NY2d 121, 128 n 2 [1974] ["Landmark designations are clearly administrative and not quasi-judicial in nature," and are therefore reviewable under the "arbitrary and capricious" standard of CPLR 7803 (3)]; Matter of L.S.O.F. CYNWYD v. Town of N. Hempstead, 298 AD2d 520 [2002] [same]).

The Court of Appeals has long recognized the "settled rule" that "in reviewing board actions as to variances or special exceptions the courts . . . restrict themselves to ascertaining whether there has been illegality, arbitrariness, or abuse of discretion" (Matter of Lemir Realty Corp. v. Larkin, 11 NY2d 20, 24 [1962] [collecting cases]; see People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v. Walker, 282 NY 400, 405 [1940] [determination of zoning board of appeals "may not be set aside unless it clearly appears to be arbitrary or contrary to law"] [collecting cases]). The Court of Appeals has continued to articulate the CPLR 7803 (3) standard of review in zoning cases, emphasizing the deference that must be afforded to local officials in making judgments concerning land use in their community (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004] ["(c)ourts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure"]; Matter of Ifrah v. Utschig, 98 NY2d 304, 308 [2002] ["Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion"]; Matter of Cowan v. Kern, supra at 599 ["Where there is a rational basis for the local decision, that decision should be sustained"]).

In Matter of Wilcox v. Zoning Bd. of Appeals of City of Yonkers (17 NY2d 249 [1966]), the Court of Appeals, citing only Matter of Lemir Realty Corp. v. Larkin (supra), used the term "substantial evidence" in reviewing a determination granting an area variance. The Court of Appeals has since recited in numerous zoning decisions that a determination will be sustained if it has a rational basis and is supported by substantial evidence (while, in most cases, simultaneously invoking the "arbitrary and capricious" standard) (see e.g. Matter of Pecoraro v. Board of Appeals of Town of Hempstead, supra at 613; Matter of Ifrah v. Utschig, supra at 308; Matter of Cowan v. Kern, supra at 598; Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309 [1976]).

In Matter of Sasso v. Osgood (86 NY2d 374 [1995]), however, the Court of Appeals made clear that determinations of municipal land use agencies are not subject to the "substantial evidence" standard set forth in CPLR 7803 (4). The Court of Appeals explained: "We have said that the Zoning Board's determination must be supported by `substantial evidence' (see Matter of Doyle v. Amster, 79 NY2d 592, 596, supra; Matter of Fuhst v. Foley, 45 NY2d 441, 444, supra; Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314, supra). However, a determination of a Zoning Board is administrative or quasi-legislative in character and rationality is the appropriate standard of review. The Board's actions are to be distinguished from quasi-judicial determinations reached upon a hearing involving sworn testimony (compare 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176; CPLR 7803 [4]). 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, supra at 384 n 2).

Thus, the determination of a municipal land use agency must be confirmed if it "was rational and not arbitrary and capricious" (Matter of Sasso v. Osgood, supra at 384). A determination will be deemed rational if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition. A reviewing court, however, does not consider whether the determination is supported by "substantial evidence," within the meaning of CPLR 7803 (4). In this case, since no substantial evidence question...