Neymotiv v. DeChance
| Decision Date | 15 May 2020 |
| Docket Number | INDEX NO: 1569/2019 |
| Citation | 2020 NY Slip Op 32036 (U) |
| Parties | In the Matter of the Application of LEV NEYMOTIV and IRINA NEYMOTIN Petitioners, v. PAUL M. DECHANCE as Chairman, JAMES WISDOM as Vice-Chairman, HOWARD BERGSON, RONALD J. LINDSAY, RICK CHUNA, WAYNE ROGERS, and CHARLES LAZAROU, constituting the BOARD OF ZONING APPEALS - TOWN OF BROOKHAVEN, Respondents. |
| Court | New York Supreme Court |
ANNETTE EADERSTO, ESQ.
BROOKHAVEN TOWN ATTORNEY
By: DEIRDRE CICCIARO, A.T.A.
This Article 78 proceeding seeks a judgment annulling and setting aside a determination of the Respondents, Town of Brookhaven Board of Zoning Appeals by naming the individual members as constituting the Board of Zoning Appeals("Zoning Board"), which denied Petitioners, Lev Neymotin and Irina Neymotin("Petitioners"), application seeking an area variance to obtain a permit for the conversion of the garage/basement as habitable space.
Petitioners reside at 30 Sylvia Lane, Plainview, New York and are the owners of real property, in a residential zone, located at the northeast corner of Hollow Road and Kemswick Drive (west side of Walnut Avenue and Chalmere Place), in the hamlet of Stony Brook, Town of Brookhaven, County of Suffolk, State of New York, further identified on the Suffolk County Tax Map as 0200-198.00-01.00006.000 (" Premises"). Petitioners have owned the Premises since 1981.
Petitioners submitted a building permit application to the Brookhaven Building Department requesting permission to maintain an existing garage and basement conversion as habitable space in the Premises.
On July 23, 2018, the Town of Brookhaven Building Department issued a denial of Petitioners' Building Department application, Denial — BZA000275. The basis of the denial was that the requested building permit was in violation of the Town of Brookhaven Code Chapter 85 Zoning, Article XXX IV Land Development Standards Section 85 - 883. Section 85-883 titled Nonconforming Uses states in subsection ( B) (1) Nonconforming buildings and structures in pertinent part:
"An existing nonconforming building or structure used as a one- or two-family dwelling with a certificate of occupancy or a certificate of existing use or its equivalent, located in a Residence District, whether located on a conforming lot or a nonconforming lot, may be structurally altered, restored, repaired or reconstructed, in whole or in part, except that the degree of nonconformity shall not be increased nor shall there be any increase in the floor area of the building or structure except as permitted elsewhere in this code."
The Petitioners in around September 2018 made an application to the Zoning Board for relief from the Building Department's denial. The Zoning Board issued a Notice of Proposed Application for Variance, Special Permit setting an initial hearing date for Petitioners' Application in October, 2018.
Public hearings were scheduled, adjourned and held from October through December 2018. At the public hearings Ralf Elsasser, as Petitioner's agent, represented the Petitioners and presented the case before the Zoning Board. The Petitioners did not testify and there is nothing in the record that demonstrates they attended any of the hearings. Nor is there any allegation in the Petition that the Petitioners were present at any of the Zoning Board hearings or denied the opportunity to speak or testify at any hearing.
A number of area residents testified and presented petitions of other neighboring residents. The testimony of the neighbors was that the Premises was not owner occupied, has been rented to Stony Brook University students for years; that the converted area was already being rented; that it was still being advertised on the Airbnb website; that the converted area had been rented for about two years; that there was insufficient parking at the Premises and multiple street entrances for vehicles to the Premises. The testimony of the residents did not attack that use but stated that the use of the converted area coupled with a new rental apartment or increased habitable space was the issue. The residents clearly testified as to the additional rental via Airbnb and that the Premises use as an Airbnb would change the nature and character of the area.
There was no evidence presented by the Petitioner as to the size in terms of lots and building size of neighboring properties to demonstrate that the proposed renovation in terms of size was in or out of character with the area.
There was no evidence in the initial hearing of the make-up in terms of race, ethnicity, sex or sexual orientation of the Stony Brook students that rented the Premises. One resident testified as far as he knew, the Premises had been rented to students for a period of around 17 years and the record is void of reference to the makeup of those tenants over the years.
There was no reference in the record of the Zoning Board hearing to any claim of any type of discriminatory animus.
An inspection report of Angus Graham, Building Inspector, dated December 11, 2018 atwas placed into the record on December 12, 2018. The Zoning Board's Findings and Conclusions denied the Petitioners' application.
The Zoning Board's determination found that the Premises is situated on a substandard parcel measuring only 4,792 square feet in size and having frontage on four (4) different public roadways and that the Petitioners were seeking permission for the already existing basement and garage conversion for the purpose of increasing the square footage of rental space at the parcel in question. This additional habitable space results in an additional bedroom, recreation room, bathroom and wet bar to the rental property.
The Zoning Board further stated that Petitioners were issued violations regarding the conversion which at the time of the public hearing were pending. The inspection of Building Inspector Angus Graham on December 6, 2018, found the converted area was described as an "Artist Studio", bedroom and bathroom. The Zoning Board also found that area residents established the manner of rental use of that part of the Premises and introduced indicia of Petitioners' Airbnb rental advertisement as a newly converted basement and garage area. The advertisement stated: Moreover, Petitioners' agent did not contest that the area for which the variance was requested was being advertised for rental via Airbnb. The Petition does not deny this either.
The Zoning Board in its decision stated that Petitioners' survey and floor plan shows 1,678 square feet of habitable space. The application would add an additional 460 square feet of habitable space to the Premises. The Petitioners' application would increase the habitable space of the Premises by almost 30%, on a substandard lot. As to Petitioners's request, in the absence of any instance of similar use in this residential community, the Zoning Board found the Petitioners' request to be substantial. The Zoning Board also found there was no evidence presented as to other properties in the area with living space in the basement/garage on a substandard lot, and that Petitioners failed to sustain their burden of proving conformity with the surrounding area. The Zoning Board also noted that Petitioners' application was outside the nature and character of the neighborhood. The allowance of such a substantial increase of living space would contribute to the over- utilization of this undersized lot, and increase the physical density of the lot. The Zoning Board found, if approved, it would have a negative effect on the physical and environmental conditions of the neighborhood and create a detriment to nearby properties.
The Zoning Board also found that any hardship was self-created since Petitioners modified the Premises without the benefit of a permit and/or contrary to a permit issued by the Building Department and contrary to Code requirements. The Zoning Board further stated that Petitioners could obtain the required rental permit and rent the Premises as a single family rental in the absence of the requested nearly 30% increase in habitable space.
Petitioners state that the Zoning Board's decision was made without hearing from the Petitioners. Petitioners were represented by an agent at the hearings. As stated above there is no appearance on the record by them and nothing in the record indicating the Petitioners were even present at hearings. There is also an allegation that it was unknown to Petitioners why a hearing scheduled for October 17, 2018 was adjourned. It was adjourned on the request of then Petitioners' agent because an inspection of the Premises was unable to occur because the Petitioners would be out of town.
Petitioners allege in the Petition that they were requesting the variance because Petitioner, Irma Neymotin, has a disability and has difficulty using stairs. Neither of the Petitioners testified as to a disability and there is no medical evidence in the record as to a disability. The only evidence in the record is the Petitioners' agent stating, as he was testifying that he just received an email that the Petitioners may move there and either the husband or wife had a disability and they may want to live on the lower level. There is no testimony or evidence other than the statements by the Petitioners agent regarding a disability. In addition, Petitioners' agent stated at the public hearing on October 3, 2018, that the reason for...
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