Navaretta v. Town of Oyster Bay

• Decision Date: 13 April 2010
• Citation: 898 N.Y.S.2d 237,72 A.D.3d 823
• Parties: In the Matter of John F. NAVARETTA, appellant, v. TOWN OF OYSTER BAY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 237

72 A.D.3d 823

In the Matter of John F. NAVARETTA, appellant,

v.TOWN OF OYSTER BAY, et al., respondents.

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

April 13, 2010.

Navaretta & Howard, LLP, Syosset, N.Y. (Diana Ruiz of counsel), for appellant.

Gregory J. Giammalvo, Town Attorney, Oyster Bay, N.Y. (Donna B. Swanson of counsel), for respondent Town of Oyster Bay.

Sinnreich, Kosakoff & Messina, LLP, Central Islip, N.Y. (Timothy F. Hill and Vincent J. Messina of counsel), for respondent Town of Oyster Bay Zoning Board of Appeals.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Town of Oyster Bay Zoning Board of Appeals dated November 16, 2006, which, after a hearing, denied the petitioner's application, in effect, for a special use permit.

ADJUDGED that the determination is confirmed, the petition is denied, and theproceeding is dismissed on the merits, with one bill of costs to the respondents.

Initially, we note that the Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a hearing held pursuant to direction of law at which evidence was taken ( see CPLR 7803[4]; Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384 n. 2, 633 N.Y.S.2d 259, 657 N.E.2d 254; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 769, 809 N.Y.S.2d 98; Matter of Milt-Nik Land Corp. v. City of Yonkers, 24 A.D.3d 446, 447-448, 806 N.Y.S.2d 217). Accordingly, the determination is not subject to substantial evidence review. Rather, the question before us is "whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational" ( Matter of Zupa v. Board of Trustees of Town of Southold, 54 A.D.3d 957, 958, 864 N.Y.S.2d 142; see CPLR 7803[3]; Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 770, 809 N.Y.S.2d 98). Nevertheless, since the full administrative record is before us, in the interest of judicial economy, we will decide the proceeding on the merits ( see Matter of FNR Home Constr. Corp. v. Downs, 57 A.D.3d 540, 541, 868 N.Y.S.2d 310; Matter of Silvera v. Town of Amenia Zoning Bd. of Appeals, 33 A.D.3d 706, 707, 823 N.Y.S.2d 430; Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 772-773, 809 N.Y.S.2d 98).

In 2002 the petitioner, an attorney, filed an application with the Town of Oyster Bay Department of Planning and Development (hereinafter the DPD), seeking a permit pursuant to the Code of the Town of Oyster Bay (hereinafter the Town Code) § 246-5.5.14 to continue operating his law practice on property zoned for residential use. The ordinance cited by the petitioner in his application provides that "[o]peration of a home business shall require special permit approval from the Zoning Board of Appeals and shall be approved only if the applicant demonstrates compliance with all of the ... standards" which are listed thereunder in the ordinance (Town Code § 246-5.5.14.3). Accordingly, the DPD denied the petitioner's application and directed him to seek approval from the Town of Oyster Bay Zoning Board of Appeals (hereinafter the ZBA). In 2006 the petitioner submitted an application to the ZBA seeking "a permit for a residential office." After a public hearing, the ZBA denied the petitioner's application, in effect, for a special use permit on the ground that his home business failed to comply with six of the conditions required by the ordinance for the operation of a home business ( see Town Code §§ 246-5.5.14.3.2, 3.4, 3.6, 3.8, 3.9, 3.11).

Contrary to the petitioner's contention, the ZBA is not authorized to analyze his application for a special use permit pursuant to the criteria relevant to use variances ( cf. Town Law § 267-b[2][b] ).

"A variance is an authority to a property owner to use property in a manner forbidden by the ordinance while a special exception allows the property owner to put his property to a use expressly permitted by the ordinance. The inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood ... [T]he use is contemplated by the ordinance subject only to 'conditions' attached to its use to minimize its impact on the surrounding area" ( North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243-244, 331 N.Y.S.2d 645, 282 N.E.2d 606; see Matter of Pleasant Val. Home Constr. v. Van Wagner, 41 N.Y.2d 1028, 1029, 395 N.Y.S.2d 631, 363 N.E.2d 1376; Matter of Sunrise Plaza Assocs. v. Town Board of Town of Babylon, 250 A.D.2d 690, 693, 673 N.Y.S.2d 165).

Since the local legislative body has found the special use to be appropriate for the zoning district, a special use permit is generally granted if the applicant satisfies all of the conditions in the ordinance ( see Matter of Juda Constr., Ltd. v. Spencer, 21 A.D.3d 898, 900, 800 N.Y.S.2d 741; Matter of Twin County Recycling Corp. v. Yevoli, 224 A.D.2d 628, 628-629, 639 N.Y.S.2d 392, affd. 90 N.Y.2d 1000, 665 N.Y.S.2d 627, 688 N.E.2d 501; Matter of J.P.M. Props. v. Town of Oyster Bay, 204 A.D.2d 722, 723, 612 N.Y.S.2d 634). "Failure to meet any one of the conditions set forth in the ordinance is ... sufficient basis upon which the zoning authority may deny the permit application" ( Matter of Wegmans Enters. v. Lansing, 72 N.Y.2d 1000, 1001-1002, 534 N.Y.S.2d 372, 530 N.E.2d 1292; see Matter of Tandem Holding Corp. v....