Richard I. Scheyer, Nesconset, NY, for appellant.
& Wagner, LLP, Locust Valley, NY (John Ritter, Jr., and
Christopher G. Wagner of counsel), for respondents.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Zoning Board of Appeals of the Village
of Lloyd Harbor, dated February 15, 2012, which, after a
hearing, granted an application for area variances, the
petitioner appeals from (1) a decision of the Supreme Court,
Suffolk County (Pastoressa, J.), dated October 27, 2014, and
(2) a judgment of the same court dated January 26, 2015,
which, upon the decision, denied the petition and dismissed
that the appeal from the decision is dismissed, as no appeal
lies from a decision (see Schicchi v J.A. Green Constr.
Corp., 100 A.D.2d 509); and it is further, ORDERED that
the judgment is affirmed; and it is further, ORDERED that one
bill of costs is awarded to the respondents Amelia Brogan, J.
William Johnson, Robert Romanoff, Edmund J.M. Smyth, Russell
E. Brooks, Leland M. Haier, Jeon M. Thatcher, Ralph Alfenito,
Leland Deane, Hilary Rolih, William Burdo, and Matthew
respondents Pamela and Matthew Sutherland own residential
property in the Village of Lloyd Harbor. In 2011, they
applied for a building permit to make improvements but the
Village's building inspector denied their application
because the improvements would not be in compliance with the
Village zoning ordinance. The Sutherlands then filed an
application for area variances with the Village's Zoning
Board of Appeals (hereinafter the ZBA). At the ZBA's
hearing on the application, held on February 15, 2012, the
petitioner, who is the owner of a contiguous property,
appeared in opposition. After the hearing, the ZBA voted to
grant the variances, but the minutes of the ZBA meeting did
not record each board member's vote. A short-form
decision filed with the Village Clerk on March 6, 2012, 20
days after the hearing, set forth the vote of each ZBA
member, but contained no specific findings as to the factors
on which the ZBA based its determination. A notation on the
short-form decision stated that any aggrieved party could,
within 30 days, serve a written demand on the Village Clerk
for a written long-form decision setting forth the ZBA's
findings. These procedures were authorized by the
Village's Local Law 1-1989.
March 8, 2012, 2 days after the short-form decision was
filed, the petitioner filed a demand for a written long-form
decision, and the ZBA filed a written long-form decision 83
days later, on May 30, 2012. The petitioner subsequently
commenced this CPLR article 78 proceeding seeking to reverse
the ZBA's determination granting the Sutherlands'
application. By a judgment dated January 26, 2015, upon a
decision dated October 27, 2014, the Supreme Court denied the
petition and dismissed the proceeding. On appeal, the
petitioner contends that the ZBA erred procedurally and
substantively in its determination of the Sutherlands'
application for variances. Specifically, the petitioner
contends that the ZBA violated several provisions of Village
Law § 7-712-a with respect to the time in which a
decision was required and in not setting forth the reasons
for its determination in the short-form decision. The
petitioner also contends that the ZBA acted arbitrarily and
capriciously in granting the Sutherlands' application.
local laws that are inconsistent with state laws are
generally invalid, the Municipal Home Rule Law allows
incorporated villages to amend or supersede provisions of the
Village Law as they relate to zoning matters"
(Matter of Cohen v Board of Appeals of Vil. of Saddle
Rock, 100 N.Y.2d 395, 399; see Kamhi v Town of
Yorktown, 74 N.Y.2d 423, 429; Matter of Stoffer v
Department of Pub. Safety of the Town of Huntington, 77
A.D.3d 305, 315). Nevertheless, "[l]ocal lawmaking power
under the supersession authority is of course in all
instances subject to the State's transcendent interest
where the Legislature has manifested such interest by
expressly prohibiting a local law, or where a local law is
otherwise preempted by State law" (Kamhi v Town of
Yorktown, 74 N.Y.2d at 430 [citation omitted]).
contrary to the petitioner's contention, Village Law
§ 7-712-a does not preempt the Village from regulating
the issues of whether its ZBA renders short-form or long-form
decisions, or the time periods within which those decisions
must be issued. The Legislature has not evinced an intent to
preempt the field, and the legislative history of that
section indicates that the Legislature envisioned no
comprehensive and detailed regulatory scheme with respect to
the form or timing of decisions of a zoning board of appeals
(see Matter of Food Parade, Inc. v Office of Consumer
Affairs of County of Nassau, 19 A.D.3d 593, 595;
Kase v City of Rochester, 15 A.D.3d 928, 929;
cf. Matter of Cohen v Board of Appeals of Vil. of Saddle
Rock, 100 N.Y.2d at 401-402).
contrary to the petitioner's contention, the ZBA's
failure to file its short-form decision in the office of the
Village Clerk within five business days after it was rendered
at the hearing on February 15, 2012, does not mandate the
annulment of its determination (see Village Law
§ 7-712-a; Matter of Stone Indus., Inc. v Zoning
Bd. of Appeals of Town of Ramapo, 128 A.D.3d 973, 975;
Matter of Frank v Zoning Bd. of Town of Yorktown, 82
A.D.3d 764, 765). Village Law § 7-712-a(9) does not
specify a sanction for the failure to comply with the
five-day filing requirement and, while the ZBA offered no
explanation for its delay, the delay was not extensive and
the petitioner did not demonstrate any prejudice resulting
from the late filing (see Matter of Stone Indus., Inc. v
Zoning Bd. of Appeals of Town of Ramapo, 128 A.D.3d at
975; Matter of Frank v Zoning Bd. of Town of
Yorktown, 82 A.D.3d at 765).
petitioner contends, the ZBA violated Village Law §
7-712-a(1) and Public Officers Law § 106(1) by failing
to record the vote of each member of the ZBA in the minutes
of the hearing. These violations, however, do not render the
ZBA's determination a nullity (see Matter of Cunney v
Board of Trustees of the Vil. of Grand View, N.Y., 72
A.D.3d 960, 961-962; Matter of Roberts v Town Bd. of
Carmel, 207 A.D.2d 404, 405). In sum, as the Supreme
Court held, the petitioner was not entitled to relief on the
basis of procedural defects in the ZBA's determination.
zoning boards have broad discretion in determining
applications for area variances. In deciding an application
for an area variance, "a zoning board is required to
engage in a balancing test that weighs the benefit to the
applicant if the variance is granted against the detriment to
the health, safety, and welfare of the neighborhood or
community" (Matter of Colin Realty Co., LLC v Town
of N. Hempstead, 107 A.D.3d 708, 710; see
Village Law § 7-712-b[b]; Matter of Halperin v
City of New Rochelle, 24 A.D.3d 768, 773). Courts
reviewing a board's exercise of that discretion may set
it aside only if the record shows that "the board acted
illegally or arbitrarily, or abused its discretion, or that
it merely succumbed to generalized community pressure"
(Matter of Pecoraro v Board of Appeals of Town of
Hempstead, 2 N.Y.3d 608, 613).
the ZBA properly balanced the requisite statutory factors
(see Village Law § 7-712-b[b]), and its
determination that the benefit of the requested variances
outweighed any detriment to the health, safety, and welfare
of the neighborhood or community had a rational basis and was
not arbitrary and capricious (see Matter of Pasceri v
Gabriele, 29 A.D.3d 805, 806).
the Supreme Court properly denied the petition and dismissed