Appellants' Reply Brief

Supreme Court, Appellate Division, Second Department, New York. Jeff BAKER and Lori Baker, Petitioners-Appellants. v. TOWN OF ISLIP ZONING BOARD OF APPEALS, Richard I. Scheyer, Chairman, Albert R. Morrison, Vice Chairman and Kurt Pahlitzsch, Barbara O'Connor and James H. Bowers, Members, Respondents-Respondents. No. 2004-03454. November 9, 2004. Appellants' Reply Brief Shlimbaum and Shlimbaum, Attorneys for Petitioners-Appellants, 265 Main Street, P.O. Box 8, Islip, New York 11751-0008, (631) 277-4300. Table of Contents... i Point I *i TABLE OF CONTENTS The Fire Island Floor Area Ratio Ordinance Does Not Include the Areas That Are Only Roofed Over and Respondents' Decision Should Be Annulled Because it Violates the Ordinance... 1 Point II Respondents' Failure to Follow Their Own Decision, That Roofed over Areas Are Included in Floor Area Ratio, or Explain How 45% Floor Area Ratio Is Calculated Demonstrates That Respondents' Decision Is Arbitrary and Capricious... 4 Point III Respondents' Brief Incorrectly Describes Appellants' House and Other Houses in the Neighborhood... 6 Point IV Respondents' Concern That the Ground Under Appellants' House May Be Used Illegally in the Future Is Pure Speculation And Cannot Be Used to Deny Appellants' Application... 9 Point V Respondents' Inclusion of Ground in the Floor Area Ratio of Appellants' House is Illegal, Arbitrary and An Abuse of Discretion... 11 Conclusion... 13 *1 POINT I THE FIRE ISLAND FLOOR AREA RATIO ORDINANCE DOES NOT INCLUDE THE AREAS THAT ARE ONLY ROOFED OVER AND RESPONDENTS' DECISION SHOULD BE ANNULLED BECAUSE IT VIOLATES THE ORDINANCE Respondents' Brief explains that in calculating the floor area ratio of

Appellants' house. Respondents included areas that are roofed over. Respondents' Brief at 6 to 7. This is precisely why Respondents' decision is incorrect and should be annulled. The floor area ratio ordinance does not state or even suggest that areas that are simply roofed over are included in floor area ratio. Rather, Islip Town Code 68-142, which applies only to Fire Island where Appellants' property is located, requires an area to have a floor or walls to be included in floor area ratio as follows: B. For the purpose of this chapter, "ground floor area" shall mean the area within the exterior walls of the dwelling at grade level. C. The maximum total floor area for a single-family dwelling hereafter erected, inclusive of all accessory uses, shall not exceed an F[loor] A[rea] R [atio] of 0.30. *2 D. For the purpose of this chapter, "total floor area" shall mean the area composed of the ground floor and all other floors, decks, open or closed porches, breezeways, sheds, garages and other accessory uses... (A56 to A57). Respondents admit that Appellants' house has no exterior walls at grade level. Respondents' Brief at 6. Thus, Appellants' house has no "ground floor area" as that term is defined by Islip Town Code 68-142(B). By not arguing to the contrary, Respondents also admit the ground under Appellants' house is not a floor, deck, open or closed porch, breezeway, shed. garage or other accessory use. Respondents' Brief at 1 to 19. Respondents' sole argument is that the ground under Appellants' house should be included in floor area ratio because it is roofed over. Appellants' Brief at 1 to 19. Because roofed over areas that do not have exterior walls or a floor are not included in the definition of floor area ratio for Fire Island set forth in Islip Town Code 68-142(D), Respondents' decision is incorrect and must be annulled. It is notable that Respondents' Brief does not even mention the floor area ratio ordinance codified in Islip Town Code 68-142. Respondents' Brief at 1 to 19. Instead, Respondents rely on the lot occupancy ordinance in Islip Town Code 68-140. Respondents' Brief at 5. *3 Lot occupancy is irrelevant for the reasons given in Point I of Appellants' Brief. Appellants' Brief at 14 to 15. What Appellants must reply to here is Respondents' claim that Islip Town Code 68-140, which is the lot occupancy ordinance, allows a floor area ratio of 25% and it is Respondents who have historically permitted 30% floor area ratios on Fire Island. Respondents' Brief at 5. Respondents' claim ignores Islip Town Code 68-142(C) which specifically allows 30% floor area ratios on Fire Island as of right. This point is important because it leads to the inescapable conclusion that Respondents have decided Appellants' application under some other ordinance or rule and not Islip Town Code 68-142 which is the only one that itemizes the areas that are included in the floor area ratio of Appellants' Fire Island house. This conclusion is bolstered by Respondents' Brief which points out that at the hearings, Respondents repeatedly talked about the general rule or what is typically done elsewhere in calculating floor area ratio. Respondents' Brief at 6 to 7. Respondents' vague generalities cannot supercede the letter of the law. Respondents' decision should be annulled for failure to include in the floor area ratio of Appellants' house only those areas specified in the Fire Island floor area ratio

ordinance in Islip Town Code 68-142. *4 POINT II RESPONDENTS' FAILURE TO FOLLOW THEIR OWN DECISION, THAT ROOFED OVER AREAS ARE INCLUDED IN FLOOR AREA RATIO, OR EXPLAIN HOW 45% FLOOR AREA RATIO IS CALCULATED DEMONSTRATES THAT RESPONDENTS' DECISION IS ARBITRARY AND CAPRICIOUS In their Brief, Respondents advise for the first time that the only roofed over area they included in calculating the floor area ratio is the ground under the second story only portion of Appellants' house. Respondents' Brief at 4 and 7. Nowhere in the Fire Island floor area ratio ordinance is counting the ground under a second story portion of a house permitted (A56 to A57). Islip Town Code 68-142. Thus. Respondents' decision is illegal and must be set aside. Counting the ground under only the second story portion of Appellants' house also directly contradicts Respondents' argument that roofed over areas must be included in floor area ratio and demonstrates that Respondents' decision is arbitrary and capricious. If roofed over areas are to be included, why did not Respondents include the ground under the two story or one story portions of Appellants' house? No reason has been given for Respondents' inclusion of only part of the ground under Appellants' house and, as a result, Respondents' decision is arbitrary and should be annulled. *5 Respondents claim, that they included the ground under the second story only portion of Appellants' house, is also contradicted by the record. Dan Bernstein, the architect who designed Appellants' house, submitted proof that the second-story only portion has 405 square feet (A 150). This number has not been challenged by Respondents or anyone else in any way (Al to A162). Respondents' Brief at 1 to 19. Without including the ground under Appellants' house, its floor area ratio is 35.2% (A106 and A 141). An additional 405 square feet adds 6.75% (405 square feet??6,000 square feet of property) for a total of 41.95%. There are no facts in the record or alleged in Respondents' Brief to support a floor area ratio of 45%. Thus, and as required by the case law cited in Appellants' Brief, Respondents' decision must be annulled. Appellants' Brief at 25 to 26. The four foot wide walkway under the second story only portion of Appellants' house does not change this result. Contra, Respondents' Brief at 7. As explained in Appellants' Brief, walkways that are four feet wide or less are specifically excluded from floor area ratio calculations. Appellants' Brief at 12 to 13. Even if the four foot wide walkway is included, since it is only about 50 feet long, it would only add about 200 square feet or 3.3% to the floor area ratio of Appellants' house, bringing it to a total of 38.5%. *6 Respondents' 45% remains unsupported by the record which should result in Respondents' decision being annulled. POINT III RESPONDENTS' BRIEF INCORRECTLY DESCRIBES APPELLANTS' HOUSE AND OTHER

HOUSES IN THE NEIGHBORHOOD The record demonstrates that Appellants' house has two stories of enclosed space, a narrow deck along the rear of the house and a main deck on the south or ocean side of the house (A29 to A33). Both decks are on the same level as the floor of the second story of the house (A32). There are no multilevel decks, no deck on the roof of the second story and no third story to the house (A29 to A33). Contra. Respondents' Brief at 1, 2, 6, 8 and 9. Whether the design of Appellants' house is unique or traditional is irrelevant because, with the exception of its floor area ratio, Appellants' house complies in all respects with the Residence BAA zoning ordinance (A 151 to A 152). Whether the two houses to the north of Appellants' property are unique or traditional is unknown because there are no photographs or elevations of those houses in the record and, in any event, such labels are pretty subjective. Contra, Respondents' Brief at 7 to 8. There certainly is no support in the record for Respondents' attempt to distinguish *7 Appellants' house from the two houses to the north according to whether they are of a unique or traditional design. (A29 to A33 and A65 to A75). In their decision, Respondents admit that it is FEMA requirements, not the design of Appellants' house, that make it necessary for Appellants' house to be raised above the ground (A36). Contra. Respondents' Brief at 6. In this respect, Appellants' house is indistinguishable from the second house to the north which has 2,122 square feet of space either enclosed by exterior walls or with a floor, all raised 12 feet above the ground to comply with FEMA requirements (A65 and A68 to A69). Respondents approved a 34.4% floor area ratio variance for that house and did not include any of the ground underneath it in the floor area ratio calculation (A65 to A69). Appellants' house has 2,109 square feet of space either enclosed by exterior walls or with a floor, all raised from 5 feet 2 and 1/4 inches to 14 feet 8 and 1/4 inches above the ground to comply with FEMA requirements (A29 to A33 and A 150). Other than placing different design labels on the two houses and making the incredible claim that the 12 feet under the second house to the north is not additional space and the area under the second story of Appellants' house is additional space, Respondents offer no reason for their disparate treatment of the floor area ratios of *8 the two houses. Respondents' Brief at 8. On this ground alone, Respondents' decision should be annulled. Appellants' Brief at 23 to 24. Respondents' Brief also attempts to distinguish a house approximately 120 feet east of Appellants' property for which Respondents granted a 42.4% floor area ratio as a nonconforming use (A 134). Town of slip Zoning Board of Appeals Application #481-96. Respondents' Brief at 8. Respondents now allege that the floor area ratio of that house is 32.4% but neglect to mention that that lower number does not include the decks (A 147 to A 148). Respondents' Brief at 8. Appellants' purpose in bringing a nonconforming house with a 42.4% floor area ratio to Respondents' attention is to establish the fact that the neighborhood is characterized by houses with floor area ratios that exceed the 30% permitted by Islip Town Code 68-142 and therefore granting Appellants' application will not produce an undesirable change in the character of the neighborhood. The nonconforming house with a 42.4% floor area ratio does indeed support Appellants' application. Contra, Respondents' Brief at 8.

*9 POINT IV RESPONDENTS' CONCERN THAT THE GROUND UNDER APPELLANTS' HOUSE MAY BE USED ILLEGALLY IN THE FUTURE IS PURE SPECULATION AND CANNOT BE USED TO DENY APPELLANTS' APPLICATION In their Brief, Respondents argue that the ground under Appellants' house should be included in floor area ratio because over time, Appellants will utilize the ground for seating, storage or other prohibited uses. Respondents' Brief at 9. Respondents are not permitted to speculate that a permit applicant will use a structure for purposes not permitted by the zoning ordinance. This Court so held in Kam Hampton I Realty Corp. V. Board of Zoning Appeals of the Village of East Hampton, 273. A.D.2d 385, 387, 709 N.Y.S.2d 613, 615 (2d Dept. 2000). In Kam Hampton, a neighbor claimed that the design of accessory structures indicated that they would not be used as a gym, library or home office but rather for dwelling purposes in violation of the zoning ordinance. The Court rejected the claim as based on pure speculation and not on any fact in the record. The same result was reached in Association of Friends of Sagaponack v. Zoning Board of Appeals of the Town of Southampton, 287 A.D.2d 620, 731 N.Y.S.2d 851 (2d Dept. 2001). There, neighbors alleged that a 40,000 square foot structure was not a single family dwelling and was destined for some other use. The *10 Court held that the neighbors' claim was properly rejected because "... the standard 'is not designed or potential use but actual use' (citation omitted)." Id. At 287 A.D.2d 621, 731 N.Y.S.2d at 852. See also Kelly v. Zoning Board of Appeals of Town of Harrison, 224 A.D.2d 424, 638 N.Y.S.2d 101 (2d Dept. 1996) (zoning board directed to grant building permit application because there was no factual basis in the record for board's concern that accessory structure would be used for prohibited purposes); Di Milia v. Bennett, 149 A.D.2d 592, 540 N.Y.S.2d 274 (2d Dept 1989) motion for leave to appeal denied, 74 N.Y.2d 610,546 N.Y.S.2d 554,545 N.E.2d 868 (1989) (to prohibit a house based on a possible future illegal use is arbitrary and capricious). Respondents have not cited any evidence in the record to support their concern that, in the future, the ground under Appellants' house may be utilized for a use that is not permitted and no such evidence exists (A1 to A 162). Respondents' Brief at 1 to 19. Respondents' concern is pure speculation and should be rejected as arbitrary and capricious. *11 POINT V RESPONDENTS' INCLUSION OF GROUND IN THE FLOOR AREA RATIO OF APPELLANTS' HOUSE IS ILLEGAL, ARBITRARY AND AN ABUSE OF DISCRETION Respondents' Brief correctly states the well settled rule that local zoning boards have broad discretion in considering applications for variances and judicial review is limited to determining whether the action taken by the board is illegal, arbitrary or an abuse or discretion. Respondents' Brief at 10 to 11 and 14 to 15. However, none of the cases cited by Respondents is persuasive in deciding this appeal because they do not involve the question presented here. Respondents' Brief at 10 to 18. In each of Respondents' cases. there was no dispute over how the variance was calculated. Rather, the parties agreed on what was applied for with the question for the Court

being whether it was illegal, arbitrary or an abuse of discretion for the zoning board to deny the application. Here, the parties do not agree on how the variance should be calculated. The question for this Court is not whether it is illegal, arbitrary or an abuse of discretion for Respondents to deny an application for a floor area ratio of 45%. Rather, the question is whether it is illegal, arbitrary or an abuse of discretion for Respondents to determine that Appellants' application is for a floor area ratio of 45%. *12 Respondents attempt to justify their position that ground under a Fire Island house should be included in floor area ratio by claiming they have always included it. Respondents' Brief at 16 to 17. Respondents' claim is not supported by any facts. Respondents have not and cannot identify a single Fire Island house where ground is included in floor area ratio. Respondents' Brief at 1 to 19. The record is replete with surveys, certificates of occupancy, decisions on other variance applications and other details which demonstrate that ground has never before been counted in the floor area ratio of a house in the Town of Islip portion of Fire Island. Appellants' Brief at 6 to 8. Respondents' decision to count it here is prohibited by the Fire Island floor area ratio ordinance at Islip Town Code 68-142. As a result, Respondents' decision is illegal, arbitrary and an abuse of discretion and should be set aside. *13 CONCLUSION For all the foregoing reasons, it is respectfully requested that this Court reverse the Judgement of the Court below, annul Respondents' decision, find that the ground under Appellants' house is not included in floor area ratio, find that Appellants' application is for a floor area ratio of 35.2% and direct Respondents' to grant the application.