IN RE: Christopher Lazos and MARISSA LAZOS (2026)

Upon the E-file document list numbered 1 to 31, read and considered on this CPLR Article 78 petition to reverse, annul, and set aside a determination by the Southold Town Board in its capacity as the Southold Town Coastal Erosion Hazard Board of Review as set forth in a written decision dated July 16, 2024; it is

ORDERED that this CPLR Article 78 petition to reverse, annul, and set aside a determination by the Southold Town Board of Trustees, as set forth in a written decision dated April 24, 2024, is granted; and it is further

ORDERED that the respondent Southold Town Board of Trustees ("Board" "Town Board" or "the Board") is directed to grant to the petitioners, Christopher Lazos and Marissa Lazos, the relief requested under Chapter 111 of the Southold Town Code for a coastal erosion hazard area permit within ten (10) days of the date of this Order and Judgment.

Before the Court is petitioners' CPLR Article 78 petition seeking reversal of the determination of the Southold Town Board, sitting as the Coastal Erosion Hazard Board of Review ("Board" or "The Board") which, on appeal, denied a coastal erosion hazard area (C.E.H.A.) permit to the petitioners. The petitioners proceeded under Chapter 111 of the Southold Town Code for a C.E.H.A. Permit for: (I) a proposed third story addition of 36.4 feet by 34.4 feet (1,077 square feet); (ii) proposed three story stairway access addition enlarging the footprint of the existing dwelling; (iii) proposed lot coverage of 37.3 percent where 20 percent is permitted; and (iv) for expansion of the subject single family dwelling on the subject property, located at 1200 Leeton Drive ("subject premises"). As disclosed by the plans in the administrative return of the record, the proposed expansion includes the addition of an upper floor over the existing top floor of the home. The existing ground floor and the floor above are both legal under Certificates of Occupancy issued by the Town of Southold. It is undisputed that the subject premises is a 16,595 square foot lot fronting on the Long Island Sound, bounded to the south by Leeton Drive, within the jurisdictional limit of the Town of Southold. Other required municipal approvals caused the petitioners to make application to the Southold Zoning Board of Appeals ("ZBA") for height relief (3 stories where 2 ½ stories are permitted), and lot coverage of 37% where 20% is permitted. That application was granted by the ZBA in a written decision dated October 12, 2023. Antedating this special proceeding, petitioners applied for and were denied a C.E.H.A. permit by the Southold Board of Trustees ("Trustees"). Coincident with the application to the Trustees, petitioners also sought a wetlands permit from the Trustees. Both permits were denied by the Trustees. This Court annulled the denial of the Trustees on the wetlands permit by an Order and Judgment dated August 4, 2025. The decision of the Trustees on the C.E.H.A. permit being non-final, the petitioners sought appellate relief from the Board  ¹ which the Board denied, giving rise to the instant special proceeding.

It must be noted that in the appellate capacity it created for itself under review here, the Town Board acted as an administrative body and not a legislative body. The Court's role in reviewing an administrative decision is not to decide whether the agency's determination was correct or to substitute its judgment for that of the agency, but to ascertain whether there was a rational basis for the determination (see Matter of Sasso v Osgood, 86 NY2d 374, 657 N.E.2d 254, 633 NYS2d 259 [1995]; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 649 N.E.2d 1145, 626 NYS2d 1 [1995]; Matter of Warder v Board of Regents of Univ. of State of NY, 53 NY2d 186, 423 N.E.2d 352, 440 NYS2d 875 [1981]). It is fundamental that when reviewing a determination that an administrative agency alone is authorized to make, the Court must judge the propriety of such determination on the grounds invoked by the agency and if the reasons relied on by the agency do not support the determination, the administrative order must be overturned (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758, 570 NYS2d 474 [1991]; see Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of NY, 16 NY3d 360, 922 NYS2d 224 [2011]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 101 AD3d 1001, 956 NYS2d 183 [2d Dept 2012]; Matter of Alfano v Zoning Bd. of Appeals of Vil. of Farmingdale, 74 AD3d 961, 902 NYS2d 662 [2d Dept 2010]). Further, the Court should not weigh the evidence and substitute its own judgment "where the evidence is conflicting and room for choice exists" (Matter of Calvi v Zoning Bd. of Appeals of City of Yonkers, 238 AD2d 417, 418, 656 NYS2d 313 [2d Dept 1997]).

Here, the Board is vested, by a local law of its own making, with authority to "hear and decide appeals [of denials of C.E.H.A. permits] where it is alleged there is error in any order requirement, decision or determination made by the administrator in the enforcement of this Chapter."  ² In this instance, the decision of the Board cannot stand on the undisputed facts and the settled law.

While Chapter 111 of the Southold Town Code does provide procedural rules for appellate review by the Board, there are no substantive guideposts for the Board to follow on review of a C.E.H.A. permit denial by the Trustees. It is clear however, that the function of the Board is appellate in nature and that under the language of Chapter 111, the Board does not conduct a de novo hearing upon application of an aggrieved land owner. The Court therefore concludes that judicial review on this petition concerns whether the Board held the Trustees to a reasoned application of the law to the undisputed facts before them as presented by the petitioners herein. The Court concludes that the Board failed to do that. The initial C.E.H.A. review by the Trustees was the product of a wholly incorrect construction applied to the applicable law, conclusory statements not buttressed by fact-specific findings, and, most troubling of all, usurpation of the jurisdiction of the Zoning Board of Appeals. That was followed by the Board's failure to recognize and correct the errors which resulted in the original permit denial by the Trustees.

The addition sought by the petitioners is not a "Major Addition" as that term is defined in the Southold Town Code. As disclosed below, a major addition is one that increases the building footprint by twenty-five percent or more.

§ 111-6 Definitions. MAJOR ADDITION

An addition to a principal building resulting in a twenty-five percent or greater increase in the building footprint of the principal building, other than an erosion protection structure or a pier, dock or wharf. The increase will be calculated as the proposed livable floor area, including any additions to the principal building constructed as of the enactment date of this chapter, divided by the livable floor area of the existing principal building.

The site plan submitted on petitioners' application discloses that an increase of 115 square feet to the existing 1,249 square feet results in a footprint increase of 9.2 percent, far below the 25 percent threshold in the statute.

While the Southold Town Code does not define a "nonmajor addition", statutory guidance is found in a later subsection of the Chapter at Section 111-13:

§ 111-13 Dune area.

(5) Nonmajor additions to existing structures are allowed on primary dunes pursuant to a coastal erosion management permit and subject to permit conditions concerning the location, design and potential impacts of the structure on the primary dune.

Read together and in harmony with the definition of "Major Addition" found at Section 111-6, "Nonmajor additions" are reasonably construed to be additions which cause an increase in the building footprint of twenty-five (25%) percent or less. Subsection 5 of section 111-13 clearly posits, by its own terms, that a nonmajor addition is a conditionally permitted use. This is an inescapable truth that should have been recognized by the Trustees originally and by the Board on appeal. Subject to engrafting reasonable conditions rationally related to the use, the C.E.H.A. permit should have been granted. The settled law on issuance of conditional permits for conditionally permitted uses holds that such uses are presumptively harmonious and permitted subject to the imposition of reasonable conditions which are rationally related to the use and in accord with the purposes of the applicable statute (see Matter of Marcus v Planning Board of the Vil. Of Wesley Hills, 199 AD3d 1007, 1008, 154 NYS3d 822 [2d Dept 2021] quoting Matter of North Shore Steak House v Board of Appeals of Inc. Vil. Of Thomaston, 30 NY2d 238, 243, 331 NYS2d 645 [1972]).

In addition and of great import here, this is not a case where agency deference applies. The Court of Appeals has been consistent respecting this rule of law: "Where...the question is one of pure statutory interpretation," we "need not accord any deference to the agency's determination and can undertake its function of statutory construction" (Matter of DeVera v Elia, 32 NY3d 423, 433, 93 NYS3d 198, 204 [2018]). Reversal of the Trustees by the Board was warranted based upon the flawed construction of the statutory language standing alone.

As observed above, the Board's written decision dated July 16, 2024 misconstrues the applicable code provisions and carries forward the same mistake made by the Trustees. Compounding that error, it is manifest that like the Trustees, the Board sought to specifically prohibit a third story granted to the petitioners by the Zoning Board of Appeals on October 20, 2023. This is all borne out in the colloquy between the petitioners' counsel on the one hand, and the Board members and the Town Attorney on the other and the Board's decision at page 3 that "As proposed, applicants' dwelling would be precedent setting, as the only dwelling with three stories in the entire neighborhood."

By the enabling acts, Town Law, City Law, Village Law, a zoning board of appeals is a creation of the state legislature that enjoys a distinct and independent jurisdiction that cannot be abridged by a locally elected legislative body. This is a firmly established tenet of municipal law in New York, that is ordinarily accepted as truth by elected and appointed municipal officials, land use practitioners, and jurists. Since the Court of Appeals decided the case of Matter of Commco Inc. v Amelkin, 62 NY2d 260, 476 NYS2d 775 (1984), few judicial pronouncements have followed. One such case in the Second Department is Carbone v Bedford, 144 AD2d 420, 420, 534 NYS2d 211 (2d Dept 1988), wherein it was held:

In Matter of Commco v Amelkin, (62 NY2d 266) the exclusive power of a town's zoning board of appeals, which cannot be circumvented or vitiated by a town board, was annunciated as follows: "It is undisputed that under the State's statutory scheme, the Zoning Board has been vested with the exclusive power to grant or deny, the first instance, a variance from the zoning ordinances.

Just like any other Town Board in New York, the Southold Town Board is possessed of the same authority to enact zoning ordinances. The Town Board, however, cannot presume to invade and occupy the province of the Zoning Board by nullification of a lawful decision of that board which granted variance relief to these petitioners to build a third story.

The Board failed to recognize and correct obvious errors of law committed by the Trustees. Accordingly, the Court finds the Board's decision to have been made in derogation of clear legal standards that should have been the basis for reversing the Trustees and granting the C.E.H.A. permit. Therefore, the petition is granted and the Board is directed to grant the petitioners, Christopher Lazos and Marissa Lazos the relief requested under Chapter 111 of the Southold Town Code for a C.E.H.A. permit within ten (10) days of the date of this Order and Judgment.

The foregoing constitutes the Order and Judgment of the Court.

Dated: May 27, 2026

HON. CHRISTOPHER MODELEWSKI, J.S.C.

FOOTNOTES

1.   The Court finds it odd that the Town Board has vested original jurisdiction in the Board of Trustees, themselves locally elected officials with specialized jurisdiction over lands and waterways of the Town, retaining to the Town Board appellate authority respecting C.E.H.A. permits, under a statutory scheme that includes no review standards and no de novo hearing.

2.   The "Administrator" is the Trustees and "this Chapter" is Section 111, Coastal Erosion Hazard Areas.

Christopher Modelewski, J.