IN RE: Fitz-Verity SILVERA (2006)

Proceeding pursuant to CPLR article 78 to review a determination of the Town of Amenia Zoning Board of Appeals dated October 13, 2004, which, after a hearing, granted the application of the respondent William J. Yeno, a/k/a William J. Yeno IV, for area variances upon certain conditions.

ADJUDGED that the determination is confirmed, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.

The respondent William J. Yeno, a/k/a William J. Yeno IV, owns a substandard, triangular-shaped parcel consisting of .83 acres of vacant land situated at the intersection of State Route 22 and Old North Road, formerly known as Hamm's Road, in the Town of Amenia in Dutchess County.   The Residential-Medium (hereinafter RM) zoning district in which the parcel is situated requires one acre of land, a minimum front-yard setback of 80 feet, and a minimum rear-yard setback of 50 feet for the construction of a one- or two-family dwelling.   In 1983 the prior owners of the parcel were granted an area variance from the one-acre lot size requirement, permitting them to develop the parcel for a permitted use in the RM zoning district.   In 2002 Yeno purchased the property.   Seeking to build a two-family, one-story dwelling on the parcel, Yeno applied to the respondent Zoning Board of Appeals of the Town of Amenia (hereinafter the ZBA) for area variances from the front-yard and rear-yard setback requirements.   On August 13, 2003, the ZBA denied Yeno's application based principally upon its concern that the proposed contemporary two-family “ranch style” dwelling would have a detrimental impact on the predominantly one-family historic residential district.

On September 7, 2004, Yeno met with the Zoning Officer of the Town of Amenia to review an alternative proposal to build a single-family two-story dwelling on the parcel.   The Zoning Officer advised Yeno that his proposal did not comply with the RM zoning district's front-yard and rear-yard setback requirements and that he would need to apply to the ZBA for area variances before a building permit could be issued.   On September 13, 2004, Yeno again applied to the ZBA for area variances from the front-yard and rear-yard setback requirements.   On October 13, 2004, following a public hearing, the ZBA granted the application upon certain conditions based, in significant part, upon its determination that the proposed one-family, two-story dwelling “with clapboard-design vinyl siding and shutters” was more in keeping with the character of the neighborhood.   The petitioners, residents of Old North Road who live in close proximity to the proposed dwelling, commenced this proceeding pursuant to CPLR article 78 to review the ZBA's October 13, 2004, determination.

 We note that the Supreme Court erroneously transferred the proceeding to this court pursuant to CPLR 7804(g) (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384 n. 2, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98;  Matter of Milt-Nik Land Corp. v. City of Yonkers, 24 A.D.3d 446, 447, 806 N.Y.S.2d 217).   Nevertheless, in the interest of judicial economy, this court will decide the case on the merits (see Matter of Halperin v. City of New Rochelle, supra at 772-773, 809 N.Y.S.2d 98;  Matter of Milt-Nik Land Corp. v. City of Yonkers, supra at 448, 806 N.Y.S.2d 217;  Matter of Country Glen Assoc. v. Newburger, 305 A.D.2d 594, 595, 759 N.Y.S.2d 385).

 This proceeding is not academic despite the apparent substantial completion of the project.   The petitioners did not delay in commencing this proceeding and promptly, albeit unsuccessfully, requested injunctive relief after Yeno was issued a building permit, to preserve the status quo (see Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172-173, 746 N.Y.S.2d 429, 774 N.E.2d 193;  Matter of Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 1313, 807 N.Y.S.2d 243;  Matter of Defreestville Area Neighborhood Assn., Inc. v. Planning Bd. of Town of N. Greenbush, 16 A.D.3d 715, 717-718, 790 N.Y.S.2d 737).   Under the circumstances, the petitioners did all they could timely do to safeguard their interests, and Yeno was put on notice that if he proceeded with construction, he would do so at his own risk (see Matter of E & J Sylcox Realty, Inc. v. Town of Newburgh Planning Bd., 12 A.D.3d 445, 446, 783 N.Y.S.2d 819;  compare with Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729-730, 778 N.Y.S.2d 740, 811 N.E.2d 2).

 Contrary to the petitioners' contention, the Zoning Officer's determination that Yeno's alternative proposal would require the issuance of two area variances constituted the statutorily-prescribed prior determination necessary to invoke the jurisdiction of the ZBA (Town Law § 267-a[4];  see Matter of Rinaldi v. Zoning Bd. of Appeals of Town of Stillwater, 23 A.D.3d 810, 811, 804 N.Y.S.2d 828;  Matter of Gaylord Disposal Serv. v. Zoning Bd. of Appeals of Town of Kinderhook, 175 A.D.2d 543, 544, 572 N.Y.S.2d 803;  compare with Matter of Brenner v. Sniado, 156 A.D.2d 559, 549 N.Y.S.2d 68;  Barron v. Getnick, 107 A.D.2d 1017, 486 N.Y.S.2d 528).

The ZBA engaged in the required balancing test and considered the relevant statutory factors, and its determination to grant the area variances had a rational basis and was not arbitrary and capricious (see Town Law § 267-b;  Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307-308, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 382, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Pasceri v. Gabriele, 29 A.D.3d 805, 815 N.Y.S.2d 218;  Matter of Sautner v. Amster, 284 A.D.2d 540, 728 N.Y.S.2d 54).

The petitioners' remaining contentions are without merit.