Humphreys v. Somers Zoning Bd. of Appeals

2022 NY Slip Op 04171

In the Matter of T. Barlow Humphreys, et al., appellants, v. Somers Zoning Board of Appeals, et al., respondents.

No. 2019-09485, Index No. 52216/19

Supreme Court of New York, Second Department

June 29, 2022

Michael V. Caruso, P.C., Bewster, NY, for appellants.

Stephens, Baroni, Reilly & Lewis, LLP, White Plains, NY (Gerald D. Reilly of counsel), for respondent Somers Zoning Board of Appeals.

Hogan & Rossi, Brewster, NY (Jamie Spillane of counsel), for respondents Kaela Choquette and David Potter.

FRANCESCA E. CONNOLLY, J.P. SHERI S. ROMAN LINDA CHRISTOPHER WILLIAM G. FORD, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Somers dated January 15, 2019, which granted the applications of the respondents Kaela Choquette and David Potter for special use permits and area variances, the petitioners appeal from a judgment of the Supreme Court Westchester County (Susan Cacace, J.), dated June 24, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The respondents Kaela Choquette and David Potter (hereinafter together the applicants) own two contiguous parcels of real property located on approximately 12 acres in the Town of Somers. The parcels are located within a residential district, in which the Code of the Town of Somers (hereinafter the Town Code) permits a barn and up to two horses (see Town Code § 170-11[B][3][d]; [8]). In addition, the Town Code allows human habitation within an accessory apartment located in an accessory structure, such as a barn, built before April 1, 1992 (see id. § 170-70[B]). However, the Town Code prohibits the housing of domestic animals within any building used for human habitation (see id. § 170-69[B][2]).

In 2018, the applicants filed applications with the respondent Somers Zoning Board of Appeals (hereinafter the ZBA) seeking special exception use permits and area variances (see Town Law § 274-b[3]) in connection with a project involving the construction of a barn for six horses, as well as an accessory apartment on the second floor of the barn. After public hearings, the ZBA granted the applications. Thereafter, the petitioners, who are the owners of neighboring properties and opposed the applications, commenced this CPLR article 78 proceeding seeking to review the ZBA's determination granting the applications for special use permits and area variances. By judgment dated June 24, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal.

"Town Law § 274-b(3) vests a ZBA with authority to grant an area variance from any requirement in a zoning regulation, including those for a special use permit" (Matter of Real Holding Corp. v Lehigh, 2 N.Y.3d 297, 299; see Matter of Manocherian v Zoning Bd. of Appeals of the Town of New Castle, 201 A.D.3d 804, 805). Contrary to the petitioners' contention, the ZBA properly determined that the applicants required an area variance rather than a use variance (see generally Matter of Wambold v Village of Southampton Zoning Bd. of Appeals, 140 A.D.3d 891, 892; Matter of Mobil Oil Corp. v Village of Mamaroneck Bd. of Appeals, 293 A.D.2d 679, 679-680). The applicants were not seeking to change the essential use of the property (see Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 N.Y.2d 344, 351; Matter of Wambold v Village of Southampton Zoning Bd. of Appeals, 140 A.D.3d at 892; Matter of Mobil Oil Corp. v Village of Mamaroneck Bd. of Appeals, 293 A.D.2d at 679-680).

In considering applications for area variances, a zoning board must 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 area variances are granted (see Town Law § 267-b[3][b]; Matter of Capetola v Town of Riverhead 192 A.D.3d 789, 790). "'In making such determination the board shall also consider: (1) 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; (2) whether the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse...