Matter of East Hampton Gerard Point, LLC v Town of E. Hampton Zoning Bd. of Appeals 2019 NY Slip Op 30159(U) January 15, 2019 Supreme Court, Suffolk

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1 Matter of East Hampton Gerard Point, LLC v Town of E. Hampton Zoning Bd. of Appeals 2019 NY Slip Op 30159(U) January 15, 2019 Supreme Court, Suffolk County Docket Number: Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* 1] COPY Index No.: SUPREME COURT-STATE OF NEW YORK l.a.s. Part 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA, Justice In the Matter of the Application of EAST HAMPTON GERARD POINT, LLC, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules - against - THE TOWN OF EAST HAMPTON ZONING BOARD OF APPEALS, Respondent. CASE DISPOSED: YES MOTION RID: 2/10/ 17 SUBMISSION DATE: 2/9/ 18 MOTION SEQUF.NCE NO.: 00 l MOT D A rrorney FOR PETITIONER Farrell Fritz, PC 50 Station Road, Building One Water Mill, New York A TIORNEYS FOR RESPONDENT East Hampton Town Attorney 159 Pantigo Road East Hampton, New York Upon the following papers filed and considered relative to this matter: Notice of Petition and Verified Petition dated January 5, 2017; Verified Answer dated March 9, 2017; Respondent's Return; Petitioner's Supplemental Return; Petitioner's Memorandum of Law; Respondent's Memorandum of Law in Opposition; Petitioner's Reply Memorandum of Law; and upon due deliberation; it is ORDERED, that the petition of East Hampton Gerard Point, LLC, pursuant to Article 78, for a Judgment annulling a deccrmination of the respondent, is denied and the petition is dismissed. The petitioner is the owner of the unimproved property located at 22 Shore Road, Amagansett, New York, also known and identified on the Suffolk County Tax Map as Lot No ("subject premises"). The instant Article 78 proceeding constitutes an appeal of the East Hampton Zoning Board of Appeals ("ZBA") denial of petitioner's application for a Natural Resources Special Penn it ("NRSP") for a s ingle fami ly residence on an ocean front property for which no variances are required under the Town of East Hampton's Zoning Code. The petitioner has made two applications to the ZBA, seeking the same basic relief for the same parcel of land. In denying the first application submitted in 2015, the ZBA and the Town's Planning staff made a series of recommendations for preparing an application that could be approved by the respondent Board. Rather than permitting the petitioner to amend his application, the respondent advised the petitioner 1

3 [* 2] that the ZBA 's policy required the filing of a new application. The petitioner incorporated the suggestions from the first application into a second application. The instant Article 78 proceeding is an appeal of the ZBA 's denial of the second application. Although the Record of the first application is not before the Court for review, the proceedings and decision in the two applications are intermingled. fn the instant decision, the ZBA referred to, discussed and incorporated the first decision into the proceedings. In addition, the petitioner and members of the public who spoke at the hearings on the second application also referred to the hearings and decision on the first application and addressed the manner and extent to which the second application responded to the recommendations made at the hearing on the first application. The final determination of the 2016 application makes numerous, explicit references to the 20 I 5 application, rendering it a part of the administrative record upon which the Board relied and referenced in the subject determination. The record contains an acknowledgment by a member of the ZBA that the petitioner had responded positively to the concerns raised by the respondent during the initial application process. The petitioner contends that in submitting the subject application in 2016, he complied with the recommendations suggested by the Board in reviewing the in itial application as follows: Recommendation I : Reduce the size of the house - The gross floor area for the house was reduced 30.5% from 4,333 square feet to square feet; the Jot building coverage was reduced 10.9% from 14.6% to 13%, where 20% is permitted; and total lot coverage was reduced 26.5% from 30.2% to 22.2%, where 50% is permitted. Recommendation 2: Remove variances - The application met all zoning requirements, Natural Resources setbacks, and required no variances. Recommendation 3: Reduce excavation of dune - In eliminating foundations and constructing the proposed house on pilings, the excavation of the duce was reduced to a total of 20 I cubic yards. Recommendation 4: Protect the dune vegetation - The original 2015 application would have cleared 14,500 square feet and revegetated 4,000 square feet of the property. The 2016 application proposed to revegetate 12,505 square feet, increasing the vegetation of the dune by 300%, and 250% of the are cleared for the footprint of the house. W ith the house on pilings, the dune under the house would be open and untouched. Recommendation 5: Move structures landward of Coastal Erosion Hazard Area line - A ll structures were re located landward of the CEHA line. Recommendation 6: Move the structures north (landward) of the 24 foot contour line - Petitioner agreed to move all construction north of the 24 foot contour line. 2

4 [* 3] Although the petitioner's second application addressed the concerns raised by the ZBA in the first application, the fact that some form of the recommendations were integrated into the second application does not guarantee that the changes proposed by petitioner would be sufficient to support an approval by the respondent. Following ZBA procedures, a Board member was assigned to review the petitioner's application, visit the property and report findings and recommendations to the Board. David Lys, the member charged with this assignment confirmed that the 2016 application addressed the Board's concerns regarding the initial application and also met the standards for the issuance of a Nan1ral Resources Special Permit, and recommended the granting of the application and the issuance of a NRSP. However, a majority of the Board did not find petitioner's proposed changes to be sufficient to support the ZBA's approval of the NRSP. By decision dated December 6, 2016, the ZBA denied petitio ner's application for a Natural Resources Special Permit to construct a 3,602 sq. ft. two story residence with attached garage, 1,056 sq. ft. of porches and stairs, 143 sq. ft. of walkways, a 388 sq. ft. swimming pool, a sq. ft. previous driveway, new sanitary system with retaining wall, drywe lls, to clear approximately I 1,900 sq. ft. of dune vegetation, to revegetate approximately 4,990 sq. ft. of disturbed area, and vegetate approximately 7,515 sq. ft. of sparsely vegetated area with the Town's jurisdiction of dunes and beach vegetation. Specifically, the Board determined that the project, proposed to take up the entire landward site of the dune, "will have substantial impact to the dune and beach vegetation. The sprawling design of the residence and the additional accessory structures will eliminate much of the dune and destroy beach vegetation." The Board also found that alternative designs exist for a similarly sized residence that would achieve the Town's natural resource protection objective while at the same time satisfying the development objectives of the applicant. The petitioner acknowledges that further alternatives to the application were discussed, but it appears that the primary objection to further exploration of a proposal that would be acceptable to the respondent is economical. Contending that the findings of the ZBA are based upon generalized community opposition and are not supported by evidence in the administrative record, the petitioner has indicated that he is not desirous of expending additional funds for the preparation of further amendments to his application and seeks annulment of the respondent's determination. It is well settled that in an Article 78 proceeding to review the determination of a municipal entity, the Court is " limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion." Matter of Association of Friends of Sagaponack v. Zoning Board of Appeals, 287 A.D.2d 620, 731 N.Y.S.2d 851. The determination of a zoning board should be sustained upon judicial review if it has a rational basis supported by the record before the zoning board (see, Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 669; and should not be disturbed unless the record demonstrates that the agency's action was arbitrary, unreasonable, irrational, or indicative of bad faith (see, Kabro Associates. LLC v. Town of Islip Zoning Board of Appeals, 95 A.D.3d 1118, 944 N.Y.S.2d 277). The Court of Appeals has reaffirmed the limited role of the courts in the review of decisions issued by municipal boards as fo llows: 3

5 [* 4] "As with board determinations on variances, a reviewing court is bound to examine only whether substantial evidence supports the determination of the board. Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record." Retail Property Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 196 (see also, Matter of P.M.S. Ltd. v. Zoning Board, 98 N.Y.2d 683; Matter oflfrah v. Utschig, 98 N.Y.2d 304). The reason for the limited scope of judicial review was set forth by the Court of Appeals in Cowan v. Kern, 41 N.Y.2d 591 at 599, as follows: "The crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed ofrepresentatives from the local community. Local officials generally possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for the locally selected and locally responsible officials to determine where the public interest in zoning lies. (McGowan v. Cohalan, 41 N.Y.2d 434, 438, supra.) Judicial review of local zoning decision is limited; not only in our court but in all cou11s. Where there is a rational basis for the local decision, that decision should be sustained." Here, the petitioner contends that the respondent has failed to set forth any facts to support its denial of the subject application. However, the Court notes that the ZBA decision does include specific findings which are used to support the Board's determination. A review of the "Additional Findings and Conclusions" of the Board's Determination dated December 6, 2016 reveals the following, in pe1tinent parts: "While the majority of the Board finds that the proposed project is an improvement from the applicant's 2015 proposal, the majority still finds that the project as currently proposed does not promote the relevant purposes set forth in of the Town Code. Specifically, the majority finds that the proposed project does not achieve the following objectives because the sprawling residence will have significant negative impacts to the dune and beach vegetation: (I) Protection of the established character of the neighborhood; (2) Preservation of protective barrier dunes and beaches, unique vegetation, important animal habitats and other natural features significant to the community; (3) Protection of health and safety from flooding and storm dangers; and ( 4) Perpetuation and enhancement of 4

6 [* 5] areas of natural beauty and aesthetic values. The project, which is proposed to take up the entire landward side of the dune, will negatively impact most of the dune unnecessarily. The Board finds that alternative designs exist for a similarly sized residence that will achieve the Town's development objectives above while at the same time satisfying the objectives of the applicant. As discussed by the Planning Department in its Technical Analysis Memorandum, the sprawling design of the residence will have negative impacts to the dune and the beach vegetation." (Finding 11). "The majority of the Board finds that the proposed residence unnecessarily sprawls across the dune. This design will eliminate a large portion of the dune from the northern property line to just above the twenty-four (24') contour line. Covering such a large portion of the dune with structures, wi ll change the entire character of the neighborhood because the character of this area is defined by its dunes and beach vegetation. While the majority acknowledges that there are residences in this area that were constructed closer to the ocean, those residences were constructed prior to the 100' dune crest setback adopted by the Town in 1984 and as noted by the Planning Department, some of those residence have been moved landward. Minimizing impacts to the dune and beach vegetation is the best strategy to protect these vital natural features. In order to minimize impacts applicants should limit the area of the dune covered by structures. A smaller footprint and limited accessory structures (i.e. decking and swimming pool) is the best method to achieve these goals." (Finding 12). " In order to grant a natural resources special permit, applicant must also demonstrate the that proposed project satisfies the criteria set forth in and The majority of the board finds that the proposed project does not satisfy these criteria. As discussed above, the majority finds that the proposed project is not in harmony with the general purposes set forth in The majority also finds chat the proposed project is not in compliance with (K). The majority of the Board find that the natural characteristics of the site are such that the proposed residence may not be introduced without undue disturbance or disruption of important natural features. The majority finds that the coverage of the residence proposed, almost the width of the building envelope, will cause destruction of the dune and severely impact beach vegetation. Applicant could avoid such large scale destruction of the dune by reducing the overall footprint of the residence. It's the majority's opinion that similar gross floor area can be achieved while still maintaining the desired views of the ocean. Applicant could add a second story that will still maintain height, pyramid and story requirements, or add additional space on the first floor. While adding additional space on the first floor may also impact the 5

7 [* 6] dune, it would be confined to an area and therefore impact less of the dune." (Finding 13). "Due to their complexity, East Hampton Town Code enumerates specific standards for natural resources special permits under One of the standards found in this section, paragraph D, requires applicants to demonstrate that the proposed use is Located so that no natural resource, feature or system designated in hereof will be diminished in size, polluted, degraded or lost, or placed in peril thereof, in order to establish such structure or use. Applicant's project will clearly diminish and degrade two important features designated in Specifically, the proposed project will have substantial impact to the dune and beach vegetation. The Sprawling design of the residence and the additional accessory structures wi ll eliminate much of the dune and destroy excessive beach vegetation. While section D, does provide an exception fo a use when there is inadequate upland, applicant must demonstrate two essential criteria: (1) Alternative reasonable uses of the property do not exist; and (2) Alternative designs entailing smaller buildings or structures, reduced yard or other setbacks, or diminished or reconfigured areas of use are determined not to be effective in preventing loss of or potential damage to designated natural features, or the only such designs are found infeasible or unlawful. This project does not satisfy the above criteria, as there were a number of viable alternatives discussed at the public hearing. Specifically, applicant can reduce the size of the residence that covers the dune and minimize accessory structures beyond the 24' contour line. This alternative will limit the diminishment and degradation to the dune and the beach vegetation." (Finding 14). Under the circumstances presented, the Court finds that the findings of the respondent Board are rational and supported by the substantial evidence on the record, and are not found to be arbitrary, capricious, or erroneous as a matter of law, or an abuse of discretion. Accordingly, the petition is dismissed. The foregoing constitutes the Order of this Court. Dated: January 15, 2019 HON. DENISE F. MOLIA A.J.S.C. 6