Kaufman v. Incorporated Village of Kings Point
Full Opinion (html_with_citations)
Ordered that the order is modified, on the law, by deleting the provision thereof remitting the matter to the Board of Zoning and Appeals of the Village of Kings Point to determine whether: (1) the Village Code contemplates exclusion of areas adjacent to tidal wetlands from the computation of net lot area; (2) based upon a calculation of the net lot area with appropriate exclusions, a variance from Village Code § 161-11(A) is required; and (3) in light of the foregoing determinations, the application for street frontage and lot width variances should be granted, and substituting therefor a provision remitting the matter to the Board of Zoning and Appeals of the Village of Kings Point for a new hearing and determination on the application of Kouros Torkan and Karen Torkan for street frontage and lot width variances; as so modified, the order is affirmed, with one bill of costs payable to the petitioners.
Kouros Torkan and Karen Torkan (hereinafter together the Torkans), are the owners of two contiguous lots located along the shore of the Long Island Sound. In January 2005, Kouros
The Torkans appealed to the Board of Zoning and Appeals of the Village of Kings Point (hereinafter the BZA) for variances from those provisions of the Code. At the public hearing before the BZA, the petitioners appeared and opposed the Torkans’ application, arguing that the BZA lacked jurisdiction to render a determination and that the Torkans should be required to submit a building plan as part of their application. The Village Attorney supported the Torkans’ application, asserting that similar applications had been granted in the past. Following the hearing, the BZA issued findings of fact, inter alia, that the property’s net area was approximately 49,960 square feet, with limited frontage and lot width. However, since similar applications customarily had been granted in the past based upon the Village’s philosophy that it was in its own best interest to allow property owners to replace existing single family dwellings on legal preexisting nonconforming lots because it helped ensure the marketability of the property within the Village and an ample tax base, the BZA granted the Torkans’ request for variances from Code § 161-11 (B) and (C).
The petitioners then commenced this CPLR article 78 proceeding. For the first time, the petitioners argued that the Torkans’ property was less than 40,000 net square feet and thus in violation of Code § 161-11(A). Specifically, the petitioners contended that the surveyor, in making his computation of the property’s net area, had failed to exclude “tidal wetlands” and those areas adjacent to them as required by Code § 161-3 (D) and New York State Department of Environmental Conservation regulations (see 6 NYCRR 661.3, 661.4), and in support, submitted their own surveys. Additionally, the petitioners contended that in making its determination, the BZA had violated Public Officers Law § 103 (a), failed to apply the statutory factors of Village Law § 7-712-b (3) (b), and should have
Preliminarily, the Village contends that the petitioners were barred from raising the issue of the property’s net area in a CPLR article 78 proceeding because they did not appeal to the BZA from the building inspector’s denial of the Torkans’ application for a building permit. However, the petitioners could not appeal from that determination because they were not aggrieved by it (see Village Law § 7-712-a [4]; Matter of Mack v Board of Appeals, Town of Homer, 25 AD3d 977, 978-979 [2006]; Matter of Klingaman v Miller, 168 AD2d 856, 858 [1990]).
Nevertheless, the Supreme Court erred in considering the issue of the property’s net area. A litigant is required to address his or her “complaints initially to administrative tribunals, rather than to the courts, and ... to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts” (see Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375 [1975]). Thus, in a CPLR article 78 proceeding, the Court’s review is limited to the arguments and record adduced before the agency (see Matter of Torres v New York City Hous. Auth., 40 AD3d 328, 330 [2007]; Matter of Citizens Against Illegal Zoning v Zoning Bd. of Appeals of Town of Rochester, 276 AD2d 897, 899 [2000]; Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of Vil. of E. Hampton, 273 AD2d 387, 388 [2000]; Matter of Montalbano v Silva, 204 AD2d 457, 458 [1994]). Here, whether the property’s net area was properly computed was not raised until the petitioners commenced this CPLR article 78 proceeding. As a result, the Supreme Court should not have considered this issue (see Matter of Torres v New York City Hous. Auth., 40 AD3d at 330; Matter of O’Donnell v Town of Schoharie, 291 AD2d 739, 742 [2002]; Matter of Tilles v Williams, 119 AD2d 233, 241 [1986]), nor the surveys submitted by the petitioners (see Matter of Citizens Against Illegal Zoning v Zoning Bd. of Appeals of Town of Rochester, 276 AD2d at 899; Matter of Montalbano v Silva, 204 AD2d at 458), in annulling the BZA’s determination. Contrary to the petitioners’ contention, this issue was one neither of law nor apparent from the face of the record.
Nonetheless, the BZA’s determination was properly annulled. Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to
In determining whether to grant an area variance, a zoning board of appeals is required by Village Law § 7-712-b (3) (b) to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Matter of Ifrah v Utschig, 98 NY2d at 307; Matter of Sasso v Osgood, 86 NY2d at 384; Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 40 AD3d 767, 768 [2007] ; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d at 546). The zoning board also is required to consider whether (1) 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, (2) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created (see Village Law § 7-712-b [3] [b]; Matter of Ifrah v Utschig, 98 NY2d at 307-308; Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 40 AD3d at 768; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d at 546; Matter of Hutchinson v Zoning Bd. of Appeals of Inc. Vil. of Cove Neck, 302 AD2d 526, 527 [2003]).
Here, since the record does not reflect that the BZA considered each of the five factors enumerated in the statute, based upon the evidence before it, its determination was properly annulled (see Matter of Hannett v Scheyer, 37 AD3d 603, 605 [2007]; Matter of Margaritis v Zoning Bd. of Appeals of Inc. Vil. of Flower
The petitioners’ alternative arguments for affirmance of so much of the judgment as annulled the determination, that the Torkans were required to submit a building plan as part of their application for area variances and that the BZA violated Public Officers Law § 103 (a), are without merit. Skelos, J.P, Lifson, Dillon and Balkin, JJ., concur.