Appellate Division Upholds ZBA Determination Transferred from Supreme Court Pursuant to CPLR §7804(g)

Farrell Fritz, P.C.
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In 2017, 8 Bayberry Rd, LLC submitted an application to the Zoning Board of Appeals of the Village of Bellport (“ZBA”) seeking several variances to convert an existing three-car garage into a squash court and work out area resulting in a new 23 foot high building in the front yard, ten feet from the side yard lot line and five feet from the front yard lot line. The neighbors, Debra and Stuart Abramovitz challenged the ZBA decision via Article 78 Proceeding.

The Supreme Court, Suffolk County, in Debra Abramovitz v. Zoning Board of Appeals of the Village of Bellport, Supreme Court, Suffolk County, Index No. 00273-2018, Hon. John H Rouse, June 11, 2018, ordered that the proceeding be transferred to the Appellate Division, Second Department for a determination pursuant to CPLR § 7804(g). CPLR 7804(g) states, “[h]earing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced …” (emphasis added). CPLR § 7803 states the questions that may be raised in an Article 78 Proceeding with section 4 stating, “whether a determination is made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.” Therefore, when the question is raised as to whether an agency’s post hearing determination is supported by substantial evidence, it may only properly be raised in a certiorari proceeding when the agency’s findings of fact are challenged. See Mckinney’s Supplementary Practice Commentaries to CPLR §7804(g), Vincent Alexander, C7804:8, Transfer to the Appellate Division (2019). The Supreme Court noted the four points of error that the petition claimed including that; (i) the ZBA granted a use variance rather than an area variance, (ii) the area variance was significant and without basis in the record, (iii) the decision changed a front yard to a back yard which the ZBA should have considered a use variance, and (iv)  by granting the variance, the ZBA authorized the applicant to enlarge the degree of nonconformity of the prior non-conforming garage.

The Appellate Division, Second Department in Abramovitz, et al., v. Zoning Board of Appeals of the Inc. Village of Bellport, et al., Index No. 2018-12810, dated May 12, 2021, held that the Supreme Court erred in transferring the proceeding to the Appellate Division pursuant to CPLR 7804(g) but decided the proceeding on its merits in the interest of judicial economy. Specifically, the Court stated, “the Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law (see CPLR 7803[4]; Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d 1216, 1216; Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d 1066, 1067-1068). Accordingly, the determination is not subject to substantial evidence review. Rather, the question before us is “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” (Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d at 1067 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d at 1216-1217.”

Ultimately, the Appellate Division found that the ZBA determination granting the variances to allow for the squash court and work out area to be constructed had a rational basis. Noting the “broad discretion” and “great deference” afforded to Zoning Boards in granting area variances and interpreting the zoning code respectively, the Court found that the ZBA met the required balancing test and considered the relevant statutory factors.  Therefore, the Court upheld the ZBA determination.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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