Septimus v. Bd. of Zoning Appeals for the Inc.
| Decision Date | 16 December 2015 |
| Citation | 22 N.Y.S.3d 815,50 Misc.3d 968 |
| Parties | In the Matter of the Application of Bonnie SEPTIMUS, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. BOARD OF ZONING APPEALS FOR the INCORPORATED VILLAGE OF LAWRENCE, and Bais Medrash of Harborview, Respondents. |
| Court | New York Supreme Court |
Sahn Ward Coschignano, PLLC, by Christian Brown, Esq., Uniondale, Attorneys for petitioner.
Bee Ready Fishbein Hatter & Donovan, LLP by Andrew K. Preston, Esq., Mineola, Attorneys for respondent, Board of Zoning Appeals for the Incorporated Village of Lawrence.
Avrutine & Associates, PLLC by Howard D. Avrutine, Esq., Syosset, Attorneys for respondent, Bais Medrash of Harborview.
The petition brought pursuant to Article 78 of the Civil Practice Law and Rules to annul the June 24, 2015 determination (corrected decision issued July 23, 2015) of the respondent Board of Zoning Appeals for the Incorporated Village of Lawrence ("BZA") is denied and the proceeding is dismissed.
Petitioner is an individual who owns property located at 207 Harborview South, in the Incorporated Village of Lawrence ("Village"). Respondent Bais Medrash of Harborview ("Bais Medrash" or "Synagogue"), a religious organization of the Orthodox Jewish faith, owns three contiguous lots located at 210, 214 and 218 Harborview South in the Village. In December, 2005 the BZA had granted Bais Medrash permission to construct and operate a synagogue. This was subject to certain terms and conditions, and a Declaration of Restrictive Covenants regarding the use of these lots was made by the Synagogue, dated November 23, 2009 in compliance with the BZA's directives previously issued. The covenants prohibited vehicular traffic on Friday nights and Saturdays and, key here, precluded use of the premises on weekdays, except for certain Jewish holidays which fell during the week.
Some years later, Bais Medrash sought permission to raze an existing structure on one of the lots, merge that lot with the one containing the synagogue building, and construct a parking lot. It also sought a slight expansion of the building, and to have the restrictive covenant prohibiting operation during the week lifted.
After an administrative appeal by Bais Medrash from an initial denial by the Village's Building Superintendent, and by decision dated June 24, 2015, the BZA granted Bais Medrash permission to expand the synagogue and to rescind the covenants precluding the use of the synagogue on weekdays, subject to certain conditions described below. This determination was made on findings of fact upon a public hearing and documentary submissions. The BZA heard from Bais Medrash's counsel, who asserted that because of the restrictive covenant the congregation was unable to offer weekday religious services, and that the third of the current three lots had been purchased for the specific purpose of addressing the parking concerns that had been raised at the time the prior determinations had been made regarding use of the property. Bais Medrash also sought permission to expand the synagogue building to accommodate the Torah Ark holding the Torah Scrolls, described by the BZA in its decision as a 3 foot by 10 foot "bump out" of the building.
Although several residents spoke in favor of the application, others were opposed. They argued, by counsel, that there had been no change in material circumstances that would justify relief from the restrictive covenants, that it would result in additional and detrimental vehicular traffic and that the presence of a parking lot would adversely change the character of the neighborhood. They also argued that property owners to the north of the Bais Medrash premises would be adversely impacted by drainage from the applicant's premises after construction of the parking lot.
After hearing argument and expert testimony and reviewing submissions from both the applicant and the opponents, the application was approved to the extent that a zoning variance was granted permitting expansion of the synagogue building. Citing a need to accommodate religious activity under New York law, and the limitations on the synagogue's ability to offer weekday services, important to Orthodox Jewish practices, but also declaring itself unpersuaded by either side's argument regarding the effect on the surrounding neighborhood, it granted relief from the restrictive covenant precluding such weekday services for a one year trial period, to be re-evaluated after the year had passed.
The BZA did not grant a variance for construction of the parking lot, nor permission for on-street parking, but rather stated in its decision that Bais Medrash could reapply for such a variance after the trial period ended. The BZA also conditioned the relief it did grant on 12 enumerated prohibitions and restrictions on the use of the property, and the applicant's petitioning the Village Board of Trustees for legislation which would prohibit parking on certain surrounding streets during the period of religious services and classes, except for spaces in front of the applicant's premises. The one-year trial period was to begin on the date Bais Medrash petitioned the Village Board of Trustees for the legislation described, and expire automatically after the year passed unless renewed upon further application. This proceeding to annul the BZA's determination ensued.
At the outset, the Court notes that the petitioner has not sought to overturn so much of the BZA's decision that granted an area variance permitting the small expansion to the synagogue building itself. Nor has she argued against the BZA's finding declaring itself Lead Agency under the NYSEQRA for purposes of the application, and that upon review of the applicant's Full Environmental Assessment Form and other evidence, had determined that its partial grant of the application will not have an adverse environmental impact. Accordingly, the Court will not address those aspects of the BZA's decision.
In her first cause of action the petitioner seeks to annul the January 24, 2015 decision grounded on her contention that limited use of the synagogue was the sine qua non of the BZA's original 2005 decision to permit its operation within the surrounding and wholly residential neighborhood. Thus, because nothing had changed in the neighborhood, and that there had been no showing that Bais Medrash could not operate and serve the religious needs of its congregants during the permitted hours, the BZA's decision to lift the restrictions without any finding of a material change was arbitrary and capricious. In her second cause of action the petitioner asserts that the BZA had the power to grant temporary and conditional permits of limited duration only when the issue was non-conforming uses and buildings in undeveloped regions, not the case here. She therefore claims that the grant of conditional and temporary relief to Bais Medrash (i.e., a trial period) was beyond the BZA's authority, rendering the challenged determination arbitrary, capricious and affected by an error of law. The third cause of action also refers to the grant of temporary and conditional relief as arbitrary, capricious and affected by an error of law in that it is conditioned on action by another body, i.e., legislation by the Village Board of Trustees.
In its answer and objections in point of law, the BZA contends that it did have the authority to grant the challenged relief, and that its ruling was appropriate in view of the special status granted religious organizations and schools in the area of zoning regulation. Respondent Bais Medrash has joined in opposing the petition, and seeks no affirmative relief of its own. The Court finds that the petitioner has failed to show standing to assert her claim of lack of authority, and that the decision itself was not arbitrary and/or capricious.
Initially, the Court rejects the challenge to the BZA's authority to issue the subject ruling.
The BZA granted certain relief from Village zoning requirements, which is to expire by its terms within a specified period, and is not even to begin until a certain condition was met. It did not grant all the relief requested. Petitioner certainly has the right to challenge the change permitting weekday services, but not because that change will last only for a year, and/or is conditioned on the application to the Village Board of Trustees. That limit and that condition adversely affect and thus can be challenged only by the applicant Synagogue. This is so because although the petitioner can claim she will be adversely affected by the substance of the relief granted—permission to use the synagogue during the week—she will have effectively prevailed in her opposition if Bais Medrash fails to meet the condition and the use never occurs. Further, she is...
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