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Matter of Lighten v Zoning Bd. of Appeals of the City of New Rochelle 2006 NY Slip Op 30628(U) September 27, 2006 Supreme Court, Westchester County Docket Number: 6670/2006 Judge: Jonathan Lippman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, on all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------------------------X In Matter of the Application of WILLIAM LIGHTEN and JANIFER LIGHTEN For a Judgment under Article 78 of the CPLR Reviewing Respondent=s Determination Denying Variances, Petitioners, Index No. 6670/2006 -against ZONING BOARD OF APPEALS OF THE CITY OF NEW ROCHELLE, Respondent. ------------------------------------------------------------------------------X LIPPMAN, J. The following papers numbered 1 to 18 were read on this petition for a judgment pursuant to CPLR article 78 cancelling, annulling and voiding the decision and determination by respondent, Zoning Board of Appeals of the City of New Rochelle (the AZoning Board@), which denied petitioners= application for area variances: PAPERS Notice of Petition/Verified Petition/ Exhibits A-F Memorandum of Law Verified Answer Affirmation in Opposition, Exhibits A-C Certified Record Respondent=s Memorandum of Law Reply Affirmation Reply Memorandum of Law NUMBERED 1-8 9 10 11-14 15 16 17 18

DECISION/ORDER/ JUDGMENT

Upon the foregoing papers, the petition is granted to the extent that the matter is remanded to the Zoning Board for further findings in accordance with this decision.

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FACTUAL BACKGROUND

Petitioners are the owners of certain real property known as 48 Wellington Avenue, New Rochelle, New York, and designated on the tax assessment map of the City of New Rochelle as Section 6, Block 2130, Lot 24. The property is improved with a residence. Petitioners submitted an application to the Bureau of Buildings of the City of New Rochelle seeking approval to construct an in-ground swimming pool with a fence enclosure in their rear yard. By notice dated November 16, 2005, petitioners were advised that their application had been denied. The notice indicated that petitioners= application did not comply with the requirements of the Chapter 331 of the New Rochelle Zoning Ordinance because the Aproposed 10' setback to left side property line is less than 20' minimum required,@ the Aproposed fence enclosure varying distance of +/- 22.68' to +/-47' from pool is more than 20' maximum permitted, @and the Aproposed evergreen screening along right hand side property line is outside said property@(Petition, Exhibit A). Consequently, on or about January 19, 2006, petitioners applied to the Zoning Board for an area variance. On March 7, 2006, a public hearing on the application was held and the Zoning Board denied petitioners= application by a divided vote: three in favor, three opposed, and one member absent. The March 17, 2006 resolution of the Zoning Board denying the application reads as follows: A1. a. b. The Applicant has not demonstrated entitlement to the requested variances., (sic) The variances sought are substantial and the hardship alleged by the applicant is not unique with respect to the surrounding area. Based upon an inspection of the property and a review of the application, the Board finds that the variances requested by the applicant are not the minimum variances required in order for the applicant to have a pool on their property. The granting of these substantial variances will affect the character of the surrounding neighborhood. That is [sic] view of the manner in which the hardship arose and considering all of

c. d.

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the above factors, the interests of justice will be served by denying the variance@ (Petition, Exhibit A). This article 78 proceeding ensued. Petitioners allege that such determination was A contrary to law, without basis in fact, arbitrary and capricious, and is unfair and unjust to the property owner/taxpayer@ (Petition &16). LEGAL DISCUSSION A zoning board=s determination should be sustained if it has a rational basis and is supported by substantial evidence (Matter of Pecoraro, 2 NY3d 608, 613 [2004]). In

determining whether a zoning board=s decision regarding the area variance was supported by substantial evidence, the Court must review the record of the zoning board=s proceedings to determine whether the zoning board balanced the benefit to petitioners if the area variance was granted as compared to the detriment to the health, safety and welfare of the neighborhood/community as required by General City Law ' 81-b. Pursuant to that statute, the zoning board is required to review five factors: (1) whether the granting of the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) whether the benefit sought can be achieved by some other method, feasible to the property owner other than an area variance; (3) whether the requested area variance is substantial; (4) whether granting the area variance would have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created (see General City Law ' 81-b; Matter of Pecoraro, 2 NY2d at 613; Matter of Sasso v Osgood, 86 NY2d 374, 382 [1995]).

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An administrative determination must set forth sufficient factual findings to allow for intelligent judicial review (see Matter of Tobin v Board of Zoning & Appeals of Inc. Village of Manorhaven, 295 AD2d 524 [2002]. Indeed, A>[c]onclusory findings of fact are insufficient to support a determination of a zoning board of appeals, which is required to clearly set forth Ahow@ and Ain what manner@ the granting of a variance would be improper=@ (Matter of Gabrielle Realty Corp. v Board of Zoning Appeals of Village of Freeport, 24 AD3d 550, 550 [2005], quoting Matter of Farrell v Board of Zoning & Appeals of Inc. Village of Old Westbury, 77 AD2d 875, 876 [1980]). In the instant matter, the zoning board=s conclusory findings of fact are patently deficient. While the Zoning Board=s decision states that it is based on an inspection of the property and a review of the application, the Zoning Board has provided no factual findings or reasoning in support of its conclusions (see Sarcona v Board of Appeals of the Inc. Village of Floral Park, 2001 NY Slip Op. 40399(U) [2001]). Moreover, the record lacks sufficient factual basis to support the denial of the variances. Further, the zoning board failed to address all of the factors set forth in General City Law ' 81-b. In particular, the determination does not address whether the Zoning Board considered whether the proposed variances would have an adverse impact on the physical or environmental conditions in the neighborhood. Where a zoning board fails to consider all of the factors

applicable to an application required by law, it is well settled that an administrative determination should be annulled and the proceeding remanded for further factual findings (see Corter v Board of Appeals of the Village of Fredonia, 46 AD2d 184 [1974].

Accordingly, the petition is granted insofar as the matter is remitted to the Zoning Board

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to make the requisite factual findings required by General City Law ' 81-b. The foregoing constitutes the Decision, Order and Judgment of the Court. Dated: White Plains, New York September 27, 2006

/S/ __________________________________ HON. JONATHAN LIPPMAN, J.S.C.

To: Robert C. Ollman, Esq. Marcus, Ollman & Kommer LLP 72 East Main Street New Rochelle, NY 10801 Kathleen E. Gill, Esq. Deputy Corporation Counsel City of New Rochelle 515 North Avenue New Rochelle, NY 10801



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