Preview:

[*1]


Decided on June 13, 2006
Supreme Court, Saratoga County

2005-2771
APPEARANCES: GINLEY & GOTTMAN, P.C. Attorneys for Petitioners 63 Putnam Street Saratoga Springs, New York 12866 ANTHONY J. IZZO Assistant City Attorney
Attorney for Respondent
474 Broadway
City Hall, Room 9
Saratoga Springs, New York 12866
Thomas D. Nolan, J.
In this proceeding under Article 78 of the CPLR, petitioners challenge the decision of respondent, Zoning Board of Appeals of the City of Saratoga Springs (hereinafter Zoning Board) denying their application for a use variance, which, if granted, would allow petitioners' contract vendees to convert 96 Ballston Avenue from a single-family residence to a law office.
In 1993, petitioners and a partner purchased for $15,000.00 at a foreclosure sale the subject property which, by all accounts, was a neglected 2,800 square feet single-family residence. After buying out their partner's one-half interest for $20,000.00,[FN1] petitioners invested another $175,000.00 plus their labor over the next two years to completely renovate the structure to make it suitable for their home. During the construction phase, an existing strip mall then located across Ballston Avenue underwent an expansion consisting of a supermarket and large [*2]parking lot directly across from the residence. In 1996, petitioners began renting the property first to families and later, as traffic and safety issues made the residence less attractive to families with children, to college students and to military personnel temporarily stationed in the Saratoga area. In 2002, petitioners decided to sell the property. Between 2002 and 2005, they listed it with three realtors at
prices varying from $259,000.00 to $289,000.00.[FN2] According to petitioner and their realtors, the property was shown to 40 to 50 prospective purchasers. Only three purchase offers, all contingent on a zoning change to allow a commercial use, were made. The latest offer, from a law firm, is for $250,000.00. It is this offer that precipitated this proceeding before the Zoning Board.
The City's building inspector's denial of petitioners' application for a use variance was appealed to the Zoning Board. On October 17, 2005, a public hearing was held. Petitioners offered their own testimony and that of their realtor, Daniel Gaba, photographs of the neighborhood and neighboring properties, a financial analysis detailing income and expenses of the property from 2000 to 2005, a sketch plan of the site, a petition signed by neighbors who did not object to the use change, and an opinion from an appraiser that the property's location rendered it unappealing to residential buyers. At the hearing, no appearance or evidence was offered in opposition. Petitioners' evidence disclosed that the Ballston Avenue corridor is an area with residential and commercial uses. Petitioner's property is bordered to the immediate south by a professional office (for which a use variance was granted); to the immediate east by a group residence for the developmentally challenged; to the north, one lot away, by a single-family residence housing a realtor's office; and to the west, on the opposite side of Ballston Avenue, by a strip mall housing numerous businesses ranging from a bank to a tavern to a free standing Price Chopper grocery store directly opposite petitioners' property. Petitioners' proof further established that their residence and their lot are considerably larger than most existing single-family residences and lots in the neighborhood.
During the October 24, 2005 meeting of the Zoning Board, a resolution proposing to grant the variance was made and seconded but voted down with five of the Zoning Board's seven members voting "no". The resolution's failure, constituting a denial of the appeal, prompted this proceeding wherein petitioners contend that the denial was unsupported by substantial evidence, arbitrary and capricious, and an abuse of discretion. Petitioners offer that they have proved the requisite elements to establish that the existing zoning classification causes them unnecessary hardship and are thus
entitled to a use variance.[FN3] In its answer, the Zoning Board contends that its denial was properly, lawfully, and rationally made and therefore not arbitrary and capricious and was supported by evidence in the record.
A zoning board must make appropriate factual findings upon which its decision is based [*3]to facilitate proper and reasoned judicial review of its decision, Matter of Syracuse Aggregate Corp. v Weise, 5 NY2d 278, 283 - 284 (1980), and if it does not, the court may remit the matter to "make findings that correlate the evidence in the record to the standards governing the issuance of a use variance and indicate what evidence it acted upon in reaching its determination". Matter of Androme Leather Corp. v City of Gloversville, 1 AD3d 654, 655 (3rd Dept 2003), lv denied 1 NY3d 507 (2004). Yet, remand is not mandatory, and the merits of a proceeding may properly be reached provided the factual underpinnings for the decision are present elsewhere in the administrative record. Matter of Fisher v Makowitz, 166 AD2d 444 (2nd Dept 1990); Matter of Concerned Citizens Against Crossgates v Town of Guilderland Zoning Bd. of Appeals, 91 AD2d 763 (3rd Dept 1982). In this case, both petitioners and the Zoning Board advocate against remand and urge that the court search the record, namely the written minutes and the DVD recordings of the two meetings of the Zoning Board. Since parties are free to chart their own course in litigation, unless public policy is affronted, CPLR 2104, Mitchell v New York Hosp., 61 NY2d 208, 214 (1984); Rich v Rich, 282 AD2d 952 (3rd Dept 2001), including "fashion[ing] the basis upon which a particular controversy will be resolved, Cullen v Naples, 31 NY2d 818, 820 (1972), and even though the factual underpinnings for the Zoning Board's decision are not included within its formal denial resolution, but are disclosed elsewhere in the record, the merits may be reached.
Now the substance of the challenge. "Zoning boards relieve the pressures created by imperfect land use controls and help interpret variance ordinances as safety valve[s]' for the zoning system, which enables the board to do substantial justice between the owner who wishes to improve [or to change the use of] his property and the owners of nearby property that will be affected by the building to be erected' or improved [or by the change of use]." Matter of Center Square Assn. v City of Albany Bd. of Zoning Appeals, 19 AD3d 968, 970 (3rd Dept 2005); quoting in part Matter of Cobb v Board of Appeals of City of Buffalo, 128 Misc 67, (Sup Ct, Erie County, 1926). "Zoning boards are afforded considerable discretion and their determinations are generally not disturbed if they have a rational basis and are supported by substantial evidence." Matter of Androme Leather Corp. v City of Gloversville, supra, at 656. General City Law

Download 2006_52636.pdf

New York Law