Pecoraro v. Bd. of Appeals

• Decision Date: 04 May 2004
• Citation: 2 N.Y.3d 608,814 N.E.2d 404,781 N.Y.S.2d 234
• Parties: In the Matter of GREGORY PECORARO, Respondent, v. BOARD OF APPEALS OF TOWN OF HEMPSTEAD, Appellant.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 608

814 N.E.2d 404

781 N.Y.S.2d 234

In the Matter of GREGORY PECORARO, Respondent, v. BOARD OF APPEALS OF TOWN OF HEMPSTEAD, Appellant.

Court of Appeals of the State of New York.

Argued March 23, 2004.

Decided May 4, 2004.

Joseph J. Ra, Town Attorney, Hempstead (Charles S. Kovit of counsel), for appellant.

Forchelli, Curto, Schwartz, Mineo, Carlino & Cohen, LLP, Mineola (Joseph F. Buzzell and James A. Boglioli of counsel), for respondent. Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

OPINION OF THE COURT

G.B. SMITH, J.

The sole issue presented in this case is whether the Board of Appeals of the Town of Hempstead abused its discretion, as a matter of law, in denying petitioner's application for an area variance. We conclude that the Board did not abuse its discretion. We therefore reverse the order of the Appellate Division and dismiss the petition.

Petitioner Gregory Pecoraro entered into a contract for the purchase of an unimproved parcel of land located on the north side of Madison Avenue in West Hempstead, Town of Hempstead. The contract was contingent on petitioner obtaining an area variance and a permit to build a single-family dwelling on the property. The subject property has a total land area of 4,000 square feet, with 40 feet of frontage width and 100 feet of depth. The property is located within a "B" residential zoning district, which requires 6,000 square feet of lot area, including 55 feet of frontage width, a front yard setback of 26 feet, a total side yard setback of 15 feet, an individual side yard setback of five feet and a building limit of 30% of the lot area.

The subject property was once in common ownership with the improved parcel adjoining it to the west. The improved parcel has 60 feet of frontage width and 100 feet of depth. In 1959, the overall plot was illegally subdivided by the common owner, who conveyed the improved parcel to Abe Shenitzer and his wife, Sarah, and simultaneously conveyed the substandard parcel to Sarah and her mother, Dora Pomerantz. In 1969, Sarah Shenitzer and Pomerantz sought, and were denied, an area variance to build a single-family dwelling on the substandard parcel. In 1970, Supreme Court upheld the denial of the variance. In May 1980, petitioner's contract vendor acquired the substandard parcel at a tax sale by the payment of two years' taxes. Petitioner subsequently entered into a contract with the vendor to purchase the property, subject to obtaining the variance, for $76,000.

Petitioner applied for a variance to reduce the lot area requirement from 6,000 square feet to 4,000 square feet and to reduce the width requirement from 55 feet to 40 feet. Petitioner's initial house plan also required a variance for side yard setbacks. At a hearing before respondent Board of Appeals, petitioner introduced expert testimony that the proposed development was in character with the neighborhood and would not negatively affect community property values. He introduced evidence that behind the subject lot, there existed four parcels that were also 40 feet by 100 feet. He also provided proof that the proposed development would not disturb the physical or environmental characteristics of the surrounding area.

Several community residents appeared at the hearing to oppose the application and submitted a petition signed by 214 members of the community stating they were "in agreement with the Supreme Court of Nassau County decision that granting a variance `would be contrary to and have an adverse effect on the character of the area.'" The West Hempstead Civic Association also opposed the area variance based on the Board's 1969 denial of a similar request. After the hearing, but before the Board rendered its decision, petitioner submitted plans for a smaller house that did not require side yard setback variances. Considering only petitioner's revised house plans, the Board denied petitioner's application. The Board concluded that the variance sought was a substantial one, requiring a 33.3% deficiency in lot area and a 27.3% deficiency in frontage width. The Board further concluded that the character of the area had not changed since its 1969 determination and that the neighborhood surrounding the subject property was overwhelmingly conforming to or larger than the zoning requirements. The Board thus held that granting the variance would have an adverse effect on the character of the neighborhood.

Petitioner commenced this CPLR article 78 proceeding, seeking an annulment of the Board's determination. Supreme Court granted the petition, annulled the decision and remanded the matter for further proceedings. The court held that the Board improperly denied the variance based on "generalized community opposition" and failed to provide specific reasons for its decision. The court further concluded that the Board's denial of the variance in 1969 did not bar the granting of the variance here. The court, however, remanded the matter so that the Board could conduct a hearing on the application based on the final plans submitted to the Board. Both the Board and petitioner appealed.

The Appellate Division modified Supreme Court's order on the law by deleting the provision remitting the matter for an additional hearing and directing the Board to issue petitioner an area variance, and as modified, affirmed. The Court determined that no evidence was presented at the hearing upon which the Board could conclude that granting the area variance would adversely effect the character of the neighborhood. It also noted that no empirical data or expert testimony had been introduced to refute the evidence presented by petitioner. However, the Court decided that further proceedings were unnecessary because the final plans for petitioner's house had been considered by the Board in reaching its conclusion, and the Court ordered the Board to issue the area variance. This Court granted leave to appeal, and we now reverse.

Pursuant to Town Law § 267-b (3), when determining whether to grant an area variance, a zoning board of appeals must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 382, 384 [1995]). The zoning board is also required to consider whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or district; and (5) the alleged...