- February 16, 2018
& STEINMETZ, WHITE PLAINS, NY (DANIEL M. RICHMOND OF
COUNSEL), FOR APPELLANTS.
BLANCHARD & WILSON, LLP, WHITE PLAINS, NY (MARK W.
BLANCHARD AND KRISTEN KELLEY WILSON OF COUNSEL), FOR
RESPONDENT CITY OF RYE ZONING BOARD OF APPEALS.
MCCULLOUGH, GOLDBERGER & STAUDT, LLP, WHITE PLAINS, NY
(PATRICIA W. GURAHIAN OF COUNSEL), FOR RESPONDENTS WALTER
NELSON AND MARGARET NELSON.
HARFENIST KRAUT & PERLSTEIN, LLP, PURCHASE, NY (JONATHAN
D. KRAUT AND LEO NAPIOR OF COUNSEL), FOR RESPONDENT ROBERT
M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
hybrid proceeding pursuant to CPLR article 78 and action,
inter alia, for declaratory relief, the
petitioners/plaintiffs appeal from an order and judgment (one
paper) of the Supreme Court, Westchester County (Susan
Cacace, J.), dated October 19, 2015. The order and judgment
denied the amended petition and dismissed the proceeding,
and, in effect, granted those branches of the separate
motions of the respondents/defendants Walter Nelson and
Margaret Nelson and the respondent/defendant Robert Talt
which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss
the amended complaint.
that the order and judgment is affirmed, with one bill of
costs payable to the respondents appearing separately and
filing separate briefs.
petitioners/plaintiffs (hereinafter the petitioners) own and
reside at 60 Kirby Lane in the City of Rye. The
respondents/defendants Walter Nelson and Margaret Nelson
(hereinafter together the Nelsons) own an adjacent property,
located at 50 Kirby Lane, which was undeveloped. The
respondent/defendant Robert Talt is the contract vendee for
the Nelsons' property. The Nelsons and Talt (hereinafter
collectively the applicants) applied for area variances in
order to construct a single-family residence on the property.
After a hearing, the respondent/defendant City of Rye Zoning
Board of Appeals (hereinafter the Board) granted the
application. The petitioners thereafter commenced this hybrid
proceeding pursuant to CPLR article 78 and action, inter
alia, for declaratory relief, seeking to annul the
Board's determination and a judgment declaring that the
applicants may not create a trespass onto the
petitioners' property. In an order and judgment, the
Supreme Court denied the amended petition and dismissed the
proceeding, and, in effect, granted those branches of the
separate motions of the Nelsons and Talt which were, in
effect, pursuant to CPLR 3211(a)(7) to dismiss the amended
complaint. The petitioners appeal.
zoning boards have broad discretion in considering
applications for area variances, and judicial review is
limited to determining whether the action taken by the board
was illegal, arbitrary, or an abuse of discretion (see
Matter of Ifrah v Utschig, 98 N.Y.2d 304, 308;
Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of
Town of Greenburgh, 68 A.D.3d 62, 67; Matter of
Genser v Board of Zoning & Appeals of Town of N.
Hempstead, 65 A.D.3d 1144, 1147). Where, as here, a
zoning board's determination is made after a public
hearing, its determination should be upheld if it has a
rational basis and is supported by evidence in the record
(see Matter of Pecoraro v Board of Appeals of Town of
Hempstead, 2 N.Y.3d 608, 613; Matter of Sasso v
Osgood, 86 N.Y.2d 374, 384 n 2).
determining whether to grant an application for an area
variance, a zoning board must engage in a balancing test
weighing "the benefit to the applicant if the variance
is granted . . . against the detriment to the health, safety
and welfare of the neighborhood by such grant" (General
City Law § 81-b[b]; see Matter of Colin Realty
Co., LLC v Town of N. Hempstead, 24 N.Y.3d 96, 103;
Matter of Pecoraro v Board of Appeals of Town of
Hempstead, 2 N.Y.3d at 612; Matter of Steiert
Enters., Inc. v City of Glen Cove, 90 A.D.3d 764,
766-767; Matter of Goldberg v Zoning Bd. of Appeals of
City of Long Beach, 79 A.D.3d 874, 876; see
also City of Rye Code § 197-81[D]). The zoning
board must also consider: "(i) whether an undesirable
change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the
granting of the area variance; (ii) whether the benefit
sought by the applicant can be achieved by some method
feasible for the applicant to pursue, other than an area
variance; (iii) whether the requested area variance is
substantial; (iv) whether the proposed variance will have an
adverse effect or impact on the physical or environmental
conditions in the neighborhood or district; and (v) whether
the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the board of appeals,
but shall not necessarily preclude the granting of the area
variance'' (General City Law § 81-b[b];
see Matter of Steiert Enters., Inc. v City of Glen
Cove, 90 A.D.3d at 766-767; Matter of Monroe Beach,
Inc. v Zoning Bd. of Appeals of City of Long Beach, N.Y.
, 71 A.D.3d 1150, 11501151; see also City of Rye
Code § 197-81[D]).
the Board engaged in the required balancing test and
considered the relevant statutory factors (see Matter of
Pecoraro v Board of Appeals of Town of Hempstead, 2
N.Y.3d 608; Matter of Goodman v City of Long Beach,
128 A.D.3d 1064, 1065). While the proposed variances were
substantial, there was no evidence that the granting of the
variances would have an undesirable effect on the character
of the neighborhood, adversely impact physical and
environmental conditions, or otherwise result in a detriment
to the health, safety, and welfare of the neighborhood or
community (see Matter of Quintana v Board of Zoning
Appeals of Inc. Vil. of Muttontown, 120 A.D.3d 1248,
1249; Matter of Daneri vZoningBd. of Appeals of the Town
of Southold, 98 A.D.3d 508, 510). Accordingly, we agree
with the Supreme Court's determination to deny the
amended petition and dismiss the proceeding.
respect to that portion of the amended pleading that sought a
judgment declaring that the applicants may not create a
trespass onto the petitioners' property, we note that an
action for a declaratory judgment must be supported by the
existence of a justiciable controversy (see CPLR 3001;
Premier Restorations of N.Y. Corp. v New York State Dept.
of Motor Vehs.,127 A.D.3d 1049, 1049; Long Is.
Light. Co. v Allianz Underwriters Ins. Co., 35 A.D.3d
253; Tri-State Sol-Aire Corp. v County of Nassau,156 A.D.2d 555). There must be a genuine, concrete dispute
between adverse parties, not merely the possibility of
hypothetical, contingent, or remote prejudice to the
plaintiff (see Premier ...