STATE OF NEW YORK. Petitioners, SUBMISSION DATE: 07/12/04. Respondents. Notice of Motion/ Order to Show Cause... Answering Papers...

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1 SHORT FORM ORDER Present: SUPREME COURT HON. KENNETH A. DAVIS. STATE OF NEW YORK In the Matter of an Article 78 Proceeding ROCKWOOD DEVELOPMENT CORP. and ARTHUR WISCOVITCH against- Justice TRIAL/lAS, PART 7 NASSAU COUNTY Petitioners, SUBMISSION DATE: 07/12/04 INDEX No. : 3881/04 BOARD OF ZONING APPEALS of the INCORPORATED VILLAGE OF FREEPORT, its members, agents, servants and employees and DEPARTMENT OF BUILDINGS of the INCORPORATED VILLAGE OF FREEPORT, its agents, servants and employees, MOTION SEQUENCE #1 Respondents. The following papers read on this motion: Notice of Motion/ Order to Show Cause... Answering Papers... Reply..... Briefs: Plaintiff' s/peti tioner ' s Defendant' s/respondent' s... Upon the foregoing papers, proceeding pursuant to CPLR by the petitioners, ROCKWOOD DEVELOPMENT CORP. and Arthur Wiscovi tch for a judgment, annulling two determinations of the respondents, Board of Zoning Appeals of the Incorporated Village of Freeport, and Department of Buildings of the Incorporated Village of Freeport, dated February 19, 2004, which, after a hearing, denied the petitioners ' application for (1) a sub- division approval and (2) an area variance, is granted and determined as provided herein. The petitioner, Arthur Wiscovi tch, (Wiscovi tch) is the owner of a corner parcel of land located at the intersection of Smith Street and Miller Avenue, located within the Incorporated Village of Freeport, County of Nassau, State of New York, designated on the Tax Map of the Village as 62, Block 120, Lots 13 and 14 and known

2 as and by street address as 209 Smith Street, Freeport, New York, (the property). Petitioner, Rockwood Development Corp. (" RDC" ) is the contract vendee, under a contract of sale with Wiscovitch, which contract is subj ect to and conditioned upon the granting of a variance by Respondent to permit the construction of a single family home thereon. Wiscovitch, occupies a single family home located on one portion of the property, deemed Parcel A. On June 26, 2003, Wiscovi tch applied to the Building Department for a permit to maintain this home on Parcel A, said permit was granted. On June 26, 2003 petitioners filed for a building permit to construct on the subdivided plot and a variance of the requirement regarding the width of Parcel B set forth in the Zoning Ordinance of the Village of Freeport (Freeport Village Code et seq. This application was denied by the, 2003, on the grounds that Parcel Village of Freeport Ordinance and a hearing was held on November 25, the application. Building Department on July B does not conform to the This decision was appealed 2003, where no one opposed The petitioners allege that the uncontroverted evidence on the record before the BZA established that the only required variance was a permit to allow construction where the width of Parcel B from the front of the property to the rear of the building line is 67. feet rather than the required 75 feet, a variance of only feet or 9. 8%. ~ of the Freeport Village ordinance states: No building shall be erected on a lot whose area is less than seven thousand five hundred feet (7 500) square feet and on any lot which has a street frontage of less than seventyfi ve (75) feet and on any lot whose width is less than seventy-five (75) feet at any point between the side lines from the front property line up to the rear building line of the proposed structure. Parcel B is feet wide from the front property line to the rear of the building line for the proposed structure, but beyond the building line it is 58 feet wide to the rear of the property. Page 2

3 At the hearing, the petitioner presented testimony by a real estate expert who stated that the proposed structure would not have any negative or deleterious impacts upon the neighborhood and surrounding community, and estimated that in fact the benefits to the applicant is substantial, that the building would be worth at least one hundred thousand dollars, and the selling price of the home should be approximately $395, dollars. There are 13 improved residential properties in the same block as Parcel B of which 7 - or 53. 9%- have property widths less that 75 feet and there are 27 improved residential properties within a 300 foot radius of the property of which 14- or 52%- have property widths less than 75 feet and finally of all the properties wi thin said 300 foot radius that do not conform to the 75 foot width provision of the Freeport Village Zoning Ordinance district. fact, Parcel B has the widest width from street to rear building line. After the close of testimony, the BZA reserved decision and subsequently issued a one- page ruling denying the application by a 0 vote. The decision, which contains no factual narrative or discussion, is comprised of ten (10) separately numbered, one sentence declarations setting forth the BZA' s ultimate conclusions. More particularly, the BZA' decision concluded that the application would (1) "produce an undesirable affect on the neighborhood" (2) " will be detrimental to the health, safety and welfare of the neighborhood" (3) "On balance, the benefit to the applicant by granting of this application is far outweighed by the detriment to the surrounding community and neighborhood if such application were to be granted" Judicial review of the determination of a local zoning board is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion Elide BldG. Corp. v. Allocco, 771 N. 2d 381 Dept. 2004); DiPaci v. Zoning Bd. of Appeals VillaGe of Upper Nvack, 770 N. Y. S. 2d 884 Dept. 2004); Lee v. ZoninG Bd. of Appeals of Town of Putnam Vallev, 1 D. 3d 600). In determining whether to grant an application for an area variance, Village Law ~ b(3) (b) requires a zoning board to balance ' the benefit to the applicant * * * against the detriment Page 3

4 ''' to the health, safety and welfare of the neighborhood or community Hutchinson v. Zoning Bd. of Appeals of Incorporated Village of Cove Neck, 302 A. D. 2d 526 see, Khan v. ZoninG Bd. of Appeals of Vile of IrvinGton, 87 N. 2d 344, (1996); Inlet Homes Corp. V. ZoninG Bd. of Appeals of Town of Hempstead, 304 2d 758). More particularly, a zoning board must apply the balancing test by considering each of the five factors enumerated in the statute, based upon the evidence before it Ifrah v. Utschig, 98 N. Y. 2d 304, 307- (2002); Khan v. ZoninG Bd. of Appeals of Vile of IrvinGton supra; Kreve v. Bordino, 302 A. 2d 465; Bianco Homes II, Inc. v. Weiler, 295 A. 2d 506). Al though local zoning boards have substantial discretion in considering applications for variances Ifrah v. UtschiG supra; Elide BldG. Corp. v. Allocco supra), a board must adequately set the forth the facts upon which its determination is predicated Tobin v. Board of ZoninG and Appeals of Inc. VillaGe of Manorhaven, 295 A. 2d 524, 525). A perfunctory or mechanical reci tation of statutory factors, coupled with "mere conclusory statements, " will not suffice (see, Tobin V. Board of ZoninG and Appeals of Inc. VillaGe of Manorhaven supra; Necker Pottick, Fox Run Woods Builders Corp. V. Duncan, 251 A. 2d 333, 335. Here, the BZA' s decision is comprised of bare-boned list which simply parrots certain sections of the Village Law without identifying any supporting facts or the relevant evidence upon which the recited conclusions are based (see, Tobin v. Board of Zoning and Appeals of Inc. VillaGe of Manorhaven supra; Necker Pottick, Fox Run Woods Builders Corp. v. Duncan supra, at 335; Morrone V. Bennett supra). While the "members of a zoning board may rely on their own personal knowledge of the community in deciding a zoning matter Il Classico Restaurant, Inc. v. Colin, 254 A. D. 2d 418, 420 see, Leon Petroleum, LLC v. Board of Trustees of Inc. VillaGe of Mineola, 309 A. D. 2d 804, 806), " (w) hen the board does so * * * it is incumbent upon it to set forth in its return the facts known to the members, but not otherwise disclosed" Communi tv SynagoGue Bates, 1 445, 454 (1956); Marcellov. Humenik, 222 AD2d ; Varley v. ZoninG Bd. of Appeals of City of SaratOGa SprinGs 131 A. 2d 905, 907. See, also, FranGella Mushroom Farms, Inc. v. Page 4

5 ZoninG Bd. of Appeals of Town of Coeymans, 87 A. 2d 962, 963 affd, 57 N. 2d 811(1982); 12 NY Jur 2d, Buildings, Zoning, and Land Controls, ~ 402). Here, the BZA' " decision contains only a bare conclusory statement without supporting facts Franqella Mushroom Farms, Inc. v. Zoning Bd. of Appeals of Town of Coeymans supra, at 963), and does not reveal precisely what personal experiences were relied upon by the BZA relative to traffic and safety. Marcello Humenik supra, at 678 see, C & B Realty Co. V. Town Bd. of Town of Oyster Bay, 139 A. 2d 510). Lastly, although the petitioner s difficulty was self- created, and the front- yard variance was arguably not insubstantial, " there was no evidence presented that granting the variance would have an undesirable effect on the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise resul t in a detriment to the health, safety, and welfare of the neighborhood or community Gonzalez V. ZoninG Bd. of Appeals of Town of Putnam Valley, 771 N. 2d 142 Dept. 2004); Bianco Homes, Inc. v. Weiler supra; Peccoraro v. Humenik, 258 A. 2d 465, 465; Necker Pottick, Fox Run Woods Builders Corp. V. Duncan supra, at 335). Moreover, it is well settled that self- created hardship alone is not determinative Bianco Homes, Inc. V. Weiler supra. Accordingly, and under circumstances presented, the BZA' key findings relating to the impact of the variances upon the heal th safety and welfare of the neighborhood or community (Village Law ~ b (3) (b) ), are unsupported by evidence in the record Bianco Homes II, Inc. v. Weiler supra; Peccoraro Humenik, 258 A. 2d 465, 466). Notably, the Appellate Division, Second Department has held that where a reviewing Court concludes that challenged determination is unsupported by substantial evidence, it must direct "the Zoning Board to issue the area variances to the petitioner rather than remit that matter to the Zoning Board for (new) an evidentiary hearing * Kreve V. Bordino supra; Matter of Bianco Homes II V. Weiler supra; see, Pecoraro v. Board of Appeals of Town of Hempstead supra). In conformity with the above, the BZA' determination is therefore annulled and the petition is granted to the extent that the matter is remitted to the respondent BZA, which is herewith Page 5

6 directed to issue the variances requested by the petitioner in accord herewith. Respondent is directed to settle judgment on notice. The foregoing constitutes the decision and order of the Court. Dated: SEP H A DAVIS HOt\1. KEN NET ENTERED SE COtn NA86AlI COUNTY OLEm'\.'S OFFICE Page 6