Matter of Brady v. Town of Islip Zoning Board of Appeals

• Decision Date: 29 September 2009
• Docket Number: 2008-04853.
• Citation: 65 A.D.3d 1337,886 N.Y.S.2d 465,2009 NY Slip Op 06836
• Parties: In the Matter of DENNIS P. BRADY et al., Respondents, v. TOWN OF ISLIP ZONING BOARD OF APPEALS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 1337

886 N.Y.S.2d 465

2009 NY Slip Op 06836

In the Matter of DENNIS P. BRADY et al., Respondents, v. TOWN OF ISLIP ZONING BOARD OF APPEALS et al., Appellants.

2008-04853.

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

Decided September 29, 2009.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Islip Zoning Board of Appeals dated April 17, 2007, which, after a hearing, denied the petitioners' application for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Baisley, J.), dated March 31, 2008, which granted the petition, annulled the determination,

and remitted the matter to the Town of Islip Zoning Board of Appeals for issuance of the requested area variance.

Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

In May 2004 the petitioners purchased a 10,000-square-foot parcel of real property (hereinafter the parcel) in the community of Seaview, on Fire Island, in the Town of Islip. The area in which the parcel is located contains no roads for cars, but only "walks." The zoning ordinance of the Town of Islip prohibits in-ground swimming pools in the relevant zoning district (see Town of Islip Town Code § 68-149.1 [A]), and limits above-ground swimming pools to lots of 12,000 square feet or larger (see Town of Islip Town Code § 68-149.1 [C]). Prior to December 12, 2006, the ordinance provided for a renewable temporary special exception that enabled a person with a specified neurological or muscular disease to erect and maintain an above-ground swimming pool for five years where the lot was less than 12,000 square feet (see Town of Islip Town Code former § 68-149.2). Effective December 12, 2006, the Town of Islip Town Board (hereinafter the Town Board) repealed the section allowing for a special exception, and, at the same time, added subdivision (D) to Town of Islip Town Code § 68-149.1, which provides that "[a]boveground swimming pools shall be permitted as an accessory use on a parcel of land having less than 12,000 square feet only after application is made to and granted by the Islip Town Zoning Board of Appeals."

On December 18, 2006, the petitioners applied for a building permit to construct, inter alia, a 12-foot by 30-foot above-ground swimming pool on their 10,000-square-foot lot. After the building permit was denied, the petitioners filed an application with the Town of Islip Zoning Board of Appeals (hereinafter the ZBA) seeking an area variance. The application attracted much public opposition and, after a public hearing, it was denied. The petitioners then commenced this proceeding pursuant to CPLR article 78. The Supreme Court determined that the ZBA's determination was arbitrary and capricious, affected by an error of law, and an abuse of discretion. Consequently, the court granted the petition and remitted the matter to the ZBA to issue the requested variance. We reverse.

"The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them" (Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]; see Matter of Muth v Scheyer, 51 AD3d 799 [2008]; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 928 [2007]). Upon judicial review, the general rule is that, absent evidence of illegality, a court must sustain the determination if it has a rational basis in the record before the zoning board (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Inlet Homes Corp. v Zoning Bd. of Appeals of Town of Hempstead, 2 NY3d 769, 770 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]; see also Matter of Gebbie v Mammina, 13 NY3d 728 [2009]).

We disagree with the Supreme Court's conclusion that when the Town Board repealed the temporary special exception, it signaled a relaxation of the law with respect to above-ground swimming pools on substandard lots. As the Supreme Court observed, the addition of Town Code § 68-149.1 (D) merely codified, in the local law, the authority of the ZBA to grant area variances, a power it already held under Town Law § 267-b (3). Therefore, the only change in the law was to eliminate the special exception.

"Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195 [2002]; see Matter of North Shore Steak House v Board of Appeals of...