bwj MEMORANDUM SUPREME COURT, COUNTY OF NASSAU, IAS PART 4 HON. BRUCE D. ALPERT In the Matter of the Application of Petitioner

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1 bwj MEMORANDUM SUPREME COURT, COUNTY OF NASSAU, IAS PART 4 In the Matter of the Application of BY: HON. BRUCE D. ALPERT JOSA TO, INC. Petitioner For an Order Pursuant to Article 78 of the Civil Practice Law and Rules - against - GERALD G. WRIGHT, Chairman JACK EASA, EUGENIA O' SHEA ROBERT W. O' BRIEN, SAL SPANO RICHARD BIANCULLI and WILLIAM WEITZMAN, as Members of the Board of Zoning Appeals of the Town of Hempstead Respondents. Special Proceeding No. Index No. 0067/02 Motion Sequence No. Motion Date: February DATED: May In the Matter of the Application of JOSATO, INC. Petitioner For an Order Pursuant to Article 78 of The Civil Practice Law and Rules -against- GERALD G. WRIGHT, Chairman, JACK EASA, ROBERT W. O' BRIEN, WILLIAM WEITZMAN, SAL SP AND DOUGLAS C. DIANA and DA VID W. McANDREWS 4RS Members of the Board of Zoning Appeals of the Town of Hempstead Respondents. Special Proceeding No. Index No. 8428/04 Motion Sequence No. Motion Dated: February 22, 2005

2 Forchelli, Curto, Schwartz, Mineo Carlino & Cohn, LLP Attorneys for Petitioner 330 Old Country Road O. Box 31 Mineola, New York Joseph J. Ra, Esq. Town Attorney Attorney for Respondents Special Proceeding No. One Washington Street Hempstead, New York Berkman, Henoch, Peterson & Peddy, P. Attorneys for Respondents Special Proceeding No. 100 Garden City Plaza Garden City, New York Petitioner has commenced two separate Aricle 78 proceedings against the members the Board of Zoning Appeals of the Town of Hempstead, in connection with variances for the same two properties in Levittown. In order to avoid duplication and conserve judicial resources the Court wil consider and determine both of the Aricle 78 proceedings in this one decision though the entry of separate judgments is contemplated. For purposes of clarty, the proceeding commenced in 2002 wil be referred to as "the first proceeding," and the proceeding commenced in 2004 wil be referred to as "the second proceeding. In the first proceeding, petitioner seeks a judgment vacating the decision dated April , of the respondent Board of Zoning Appeals of the Town of Hempstead ("the Board" wherein petitioner s applications for a series of 5- foot depth variances for lots on two different parcels in Levittown, were denied. In the second proceeding, petitioner seeks a judgment vacating the decision dated April 21, 2004, wherein petitioner s applications for a series of 15- foot depth variances for the same lots on the same parcels in Levittown, were denied. The two parcels at issue in Levittown were purchased in 1984 by petitioner s predecessor for approximately $ These two parcels are par of the former Vanderbilt Motor

3 , " Parkway. Both parcels are located within and governed by the zoning provisions of the Levittown Planned Residence District ("LPRD"), Aricle XV of the Building Zone Ordinance of the Town of Hempstead. In the 1940's and 1950's this area of the Town of Hempstead was developed as a planned community by Levitt & Sons, Inc. ("Levitt"). Levitt developed subdivisions with the requirements of the Residence "B" District then in effect and further imposed additional requirements on the subdivisions, by fiing declarations of restrictive covenants in conjunction with the fiing of each subdivision map. In the early 1970', when the restrictive covenants imposed by Levitt were due to expire, the Town of Hempstead created the LPRD (ijn order to preserve the integrity of the plan of the original Levittown" and protect against "further subdivision under existing town zoning regulations" (Exhibit A to the petition in both proceedings, (A J). The Town of Hempstead expressly noted in the statement of legislative purpose that because "Levittown was planned and developed as a whole community, piecemeal intrusion on scattered parcels by development wil change the physical character of the residential areas and reduce open space" (Exhibit A to the petitions, (BJ). The LPRD includes 151 Levitt-fied maps, in addition to parcels of property like the Vanderbilt Motor Parkway which had never been included in a Levitt map. The provision oflprd at issue in both proceedings is a depth requirement. g193( C) requires that " ( n Jo dwelling or other building shall be erected on any lot having a depth of less than one hundred (100) feet" (Exhibit B to both petitions). In the first proceeding, petitioner seeks variances to develop 7 lots on the parcel proposed as Topaz Court and 9 lots on the parcel proposed as Marigold Cour, with each lot having a 95-

4 foot depth. As proposed in the first proceeding, Topaz Court and Marigold Court would be substandard roadways with a 40-foot width. In the second proceeding, petitioner seeks variances to develop the same 7 lots on the proposed Topaz Court and the same 9 lots of the proposed Marigold Court. However, in the second proceeding, petitioner seeks variances for each of the lots to have an 85-foot depth, and proposes that Topaz Court and Marigold Court be configured as standard roadways with a 50- foot width, as required by Town of Hempstead and County of Nassau regulations. In 1984, petitioner s predecessor had applied for variances to develop 9 lots with a depth of95 feet on the proposed Topaz Court, and 11 lots with a depth of95 feet on the proposed Margold Court. The Board denied the variances for both parcels on the grounds that petitioner predecessor had not established the "practical diffculties" required by law at that time. The Board' s denial was reversed by the Supreme Cour (Wager, J.), which reversal was overtrned by the Appellate Division, Second Department (see, Matter of Terra Homes, Inc. v Rose, 133 AD2d 764, app den 71 NY2d 803). In 1993, the legislature enacted amendments to Town Law g267-, which replaced the practical diffculties" test with a balancing test. Consequently, the Board' s prior denial of 5-foot depth variances is not res judicata (see, Matter of Josato, Inc. v Wright, 288 AD2d 384) with respect to petitioner s request for 5-foot depth variances in the first proceeding. Town Law g267-b(3) provides five criteria for the Board to consider in weighing the benefit to the applicant against the detriment to the community if the requested area varance is granted (see, Matter of Sasso v Osgood, 86 NY2d 374, 384). The Board must consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to

5 nearby properties wil be created by the granting of the area variance; (2) the benefit sought by the applicant can be achieved by some other feasible method; (3) the requested variance is substantial; (4) the proposed variance wil have an adverse effect or impact on the physical or environmental conditions in the neighborhood; and (5) the alleged difficulty was self-created. While the last factor is not dispositive, it is not irrelevant (see, Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d ). Local zoning boards possess broad discretion in considering applications for area variances, and judicial review is limited to determining whether the action taken by the board was ilegal, arbitrary or an abuse of discretion (see, Matter ofifrah v Utschig, 98 NY2d ). A zoning board' s determination should be sustained, if it has a rational basis and is supported by substantial evidence (see, (see, Matter ofimhofv Zoning Board of Appeals of Town ofislip, 13 AD3d 626, 627). Here, the Board' s decisions delineate the five criteria that must be considered in the balancing test and provided its analysis. The Board found that the requested variances, if granted, would result in an undesirable change in the character of the neighborhood because the subject parcels are overwhelmingly surrounded by others developed in accordance with the Levitt fied maps, that is, with lot depths of 100 feet. The petitioner s applications for variances are violative ofthe stated purpose of the LPRD, that is to preserve the integrity of the original Levittown, and would run afoul of the prohibition precluding the "piecemeal intrusion on scattered parcels. The Board admitted that in 1984 it had granted depth-of-iot variances on a similar proposed development on Ciper Lane, located also on a portion of the former Vanderbilt Motor

6 Parkway. However, the Board thereafter "repudiated such a determination. The fact that others similarly situated may have received variances does not establish arbitrary action by the Board. It is well-settled that: Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through its exercise. * * The (board) may refuse to duplicate previous error; it may change its views as to what is for the best interests of the (town); it may give weight to slight differences which are not easily discernible. (Matter of Cowan v Kern, 41 NY2d , rearg den 42 NY2d 910). In short, the grant of variances from the depth requirement for Cipher Lane neither warants nor requires similar action by the Board on petitioner s applications. Variances for lot depth granted in 1979 in cases of 2 nearby irregular lots were distinguished. Petitioner s reliance on statistics of other depth-of-iot variances was rejected as too remote to be considered within the same community. Homeowners living nearby the proposed developments opposed the applications and raised the spectre of decreased propert values, if the variances sought were granted. The Board supported its conclusion with language from the appellate decision upholding the Board' s denial in 1985 of the 5-foot depth variances. Of course, this Court recognizes that the holding of the 1987 decision regarding petitioner s failure to establish "practical diffculties " is not applicable here, yet the appellate court' s view of the cumulative effect of granting the requested variances aptly encapsulates the continuing problem. In Matter of Terra Homes, Inc. v Rose, the Appellate Division, Second Department stated: The cumulative effect of granting the requested variances would be to create a development which would reduce open space, adversely affect the surrounding lots which are in strict conformity with the zoning ordinance s 100-foot minimum

7 depth-of-iot requirement (see, Building Zone Ordinance of the Town of Hempstead (c J), and otherwise conflct with the general purposes of the Levittown Planned Residence District * (Matter of Terra Homes, Inc. v Rose, supra at 627). Afortiori this conclusion would apply to the 15-foot depth variances. The Board did note that the benefit requested, namely the construction of dwellngs on depth-deficient lots, could not be achieved by any other method. The Board further concluded that the requested variances were substantial because "what might seem 'minor' for an isolated single plot, is substantial in this circumstance" of a series of contiguous depth-deficient plots. The Board found that the adverse effect on the physical and environmental conditions in the neighborhood, upon granting the lot-depth variances, would be the "double front yard" scenario created by the placement of Topaz Court and Margold Court along the rear-yards of dwellings presently on the north side of Orchid Road. In the first proceeding the Board also questioned why a 50-foot roadway could not be installed as a matter of right. Notably, the diffculty was self-created, as the propert was purchased after the LPRD was created. The Board concluded that the benefit to the petitioner of financial gain was outweighed by the detriment to the neighborhood. As a matter of right, the petitioner can stil develop 2 lots on each parcel. The value of each such lot would be approximately $ , for a total of , which sum represents a substantial profit on the initial investment. Overall, on this record, the Court finds that the Board' s denials of both the 5-foot depth variances and the 15-foot depth variances have a rational basis and are adequately supported by

8 substantial evidence. There has been no showing of ilegality, arbitrariness or an abuse of discretion. Consequently, the Board' s determinations may not be disturbed (see, Matter of Pols en v Rosenberg, 295 AD2d 352, Iv den 98 NY2d 613). The absence of expert testimony or empirical data to refute petitioner s evidence is not fatal. Local officials generally possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community (see, Matter of Pecoraro v Board of Appeals of Town of Hempstead, supra at 613). Furthermore, the Court finds that the Board' s determinations are supported by more than the generalized objections of neighbors. On the contrary, the Board' s determinations are supported by documentary evidence including the maps presented, the unique history of the LPRD and Levittown, generally, and the factual evidence presented in the form of oral and written testimony by neighbors with actual knowledge of the conditions in the immediate neighborhood of the proposed developments (see Matter of Ifrah v Utschig, supra at 308). Based on the foregoing, the petitions in both proceedings are hereby denied, and both proceedings are dismissed. Settle separate judgments on notice.