In the Matter of Brian Kearney v. Vill. of Cold Spring Zoning Bd. of Appeals

• Decision Date: 05 April 2011
• Citation: 2011 N.Y. Slip Op. 02881,920 N.Y.S.2d 379,83 A.D.3d 711
• Parties: In the Matter of Brian KEARNEY, et al., respondents,v.VILLAGE OF COLD SPRING ZONING BOARD OF APPEALS, appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 711

920 N.Y.S.2d 379

2011 N.Y. Slip Op. 02881

In the Matter of Brian KEARNEY, et al., respondents,

v.VILLAGE OF COLD SPRING ZONING BOARD OF APPEALS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 5, 2011.

Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, N.Y. (Stephen J. Gaba of counsel), for appellant.Silverberg Zalantis LLP, Tarrytown, N.Y. (Katherine Zalantis and Steven M. Silverberg of counsel), for respondents.PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Village of Cold Spring Zoning Board of Appeals dated September 10, 2009, which, after a hearing, denied the petitioners' application for area variances, the appeal is from (1) an order of the Supreme Court, Putnam County (O'Rourke, J.), dated December 7, 2009, which granted the petition, and (2), a judgment of the same court dated December 21, 2009, which granted the petition, annulled the determination, and directed the Village of Cold Spring Zoning Board of Appeals to issue the requested variances and to issue findings that the subject property was exempt from certain zoning requirements.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the order is vacated, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the order must be dismissed, as no appeal lies as of right from an interlocutory order entered in a proceeding pursuant to a CPLR article 78 proceeding ( see CPLR 5701[b][1] ), and we decline to grant leave to appeal in view of the fact that a final judgment has been entered. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

The petitioners are the owners of an approximately 10,000 square-foot parcel of real property in the Village of Cold Spring, Putnam County. The property is included in an industrial zoning or “I–1” district. While residential development is permitted within an I–1 district, the Village zoning code requires a minimum lot area of 40,000 square feet for such development.

In July 2007 the petitioners sought a permit to build a single-family residence on the subject property. That permit application was denied by the Building Inspector. The petitioners then submitted an application to the Village of Cold Spring Zoning Board of Appeals (hereinafter the ZBA), seeking variances from the dimensional requirements of the I–1 district. The ZBA denied the petitioners' application for variances.

The petitioners subsequently commenced this proceeding pursuant to CPLR article 78 challenging the ZBA's determination. The Supreme Court concluded that the I–1 district's dimensional requirements did not apply to the subject lot, under a certain exception in the Village zoning code referred to by the parties and the court as the “small lot exception” ( see Cold Spring Village Code § 134–17[E] ). The Supreme Court also found that the ZBA's decision to deny the variances was arbitrary and capricious. Accordingly, the Supreme Court granted the petition, annulled the ZBA's determination, and directed the ZBA to issue a finding that the “small lot exception” applies to the subject property and to grant the requested variances. The ZBA appeals.

The Supreme Court erred in considering the petitioners' claim that their property was exempt, under the “small lot exception” to the zoning code, from the dimensional requirements prescribed by the zoning code for residential development in I–1 districts. A petitioner may not raise new claims in a proceeding pursuant to CPLR article 78 that were not raised at the administrative level ( see Matter of Klapak v. Blum, 65 N.Y.2d 670, 672, 491 N.Y.S.2d 615, 481 N.E.2d 247; Matter of Emrey Props., Inc. v. Baranello, 76 A.D.3d 1064, 1067, 908 N.Y.S.2d 255; Matter of Trident Realty v. Planning Bd. of Inc. Vil. of E. Hampton, Suffolk County, 248 A.D.2d 545, 669 N.Y.S.2d 873). Further, “[j]udicial review of an administrative determination is limited to the grounds invoked by the agency in making its decision” ( Matter of Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 A.D.3d 831, 832, 909 N.Y.S.2d 530; see Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562). Here, while the petitioners communicated their opinion to the ZBA that they did not require variances because their property was exempt from the I–1 district's dimensional requirements under the “small lot exception,” they expressly advised the ZBA at the public hearing held on February 19, 2009, that they were “not asserting in the context of this proceeding here that [they were] entitled to apply the small lot exception,” but, rather, were merely seeking variances. Consequently, the ZBA's findings and decision were limited to the question of whether the petitioners were entitled to variances, and did not address the question of whether the property was exempt from the I–1 district...