IN RE: Deborah KOPALD (2026)

DECISION & ORDER

In two related proceedings pursuant to CPLR article 78, inter alia, to review, respectively, determinations of the respondent Town of Highlands New York Zoning Board of Appeals dated August 19, 2020, and September 16, 2020, which, after a hearing, upheld the issuance by the Town of Highlands New York of two building permits and of a certificate of occupancy, respectively, to the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley-Tonneson (Kilner), the petitioner appeals from (1) an order and judgment (one paper) of the Supreme Court, Orange County (Robert A. Onofry, J.), dated March 18, 2021, and (2) a judgment of the same court also dated March 18, 2021.  The order and judgment, insofar as appealed from, granted the motion of the respondent Town of Highlands New York Zoning Board of Appeals pursuant to CPLR 3211(a) to dismiss the amended petition, among other things, to review the determination of the respondent Town of Highlands New York Zoning Board of Appeals dated August 19, 2020, denied the amended petition, dismissed that proceeding, and granted that branch of the motion of the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner and for an award of costs, including attorneys fees.  The judgment denied the petition, inter alia, to review the determination of the respondent Town of Highlands New York Zoning Board of Appeals dated September 16, 2020, and dismissed that proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The petitioner appealed to the respondent Town of Highlands New York Zoning Board of Appeals (hereinafter the ZBA) seeking to rescind two building permits and a certificate of occupancy issued by the Town of Highlands New York to the respondents David Tonneson, Deborah Tonneson, and Jaidin Paisley–Tonneson (Kilner) (hereinafter collectively the Tonnesons), who are adjacent landowners to the petitioner's property, for the purpose of constructing a modular home on the Tonnesons' property.  After public hearings and numerous submissions, the ZBA concluded that the petitioner lacked standing and upheld the Town's issuance of the building permits and of the certificate of occupancy to the Tonnesons in determinations dated August 19, 2020, and September 16, 2020, respectively.

The petitioner commenced these two related proceedings pursuant to CPLR article 78, inter alia, to review, respectively, the ZBA's determinations dated August 19, 2020, and September 16, 2020, and for recusal of the Justice presiding.  The ZBA moved pursuant to CPLR 3211(a) to dismiss the amended petition, among other things, to review the ZBA's determination dated August 19, 2020.  The Tonnesons moved, inter alia, pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner and for an award of costs, including attorneys' fees.  In an order and judgment dated March 18, 2021, the Supreme Court, among other things, granted the ZBA's motion, denied that amended petition, dismissed that proceeding, and granted that branch of the Tonnesons' motion.  In a judgment also dated March 18, 2021, the court denied the petition, among other things, to review the ZBA's determination dated September 16, 2020, and dismissed that proceeding.  The petitioner appeals from the order and judgment, and the judgment.

Contrary to the ZBA's contention, these related proceedings are not academic on the ground that construction of the Tonnesons' modular home is now complete, since the petitioner sought to enjoin construction and occupation of the house insofar as possible during the pendency of these and other proceedings (see Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 173;  Matter of Downes v Town of Southampton Zoning Bd. of Appeals, 15 AD3d 398).

The Supreme Court providently exercised its discretion in denying the petitioner's application for recusal of the Justice presiding.  The determination on an application for recusal based on alleged impropriety, bias, or prejudice is within the court's discretion and is a matter of personal conscience (see Matter of Yonkers Firefighters, Local 628, Intl. Assn. of Firefighters, AFL–CIO v City of Yonkers, 175 AD3d 695, 696–697).  “The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment,” in the absence of which prior proceedings remain valid (id. at 697).  Here, the record belies the petitioner's allegations of bias and impropriety on the part of the court (see 22 NYCRR 100.1;  100.2;  100.3).

Contrary to the petitioner's contentions, she was not deprived of due process during the proceedings before the ZBA (see Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 260).

The Supreme Court properly denied the amended petitions and dismissed the proceedings.  “The determination of a local zoning board is entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational” (Matter of Bennett v Zoning Bd. of Appeals of the Vil. of Sagaponack, 170 AD3d 716, 717 [internal quotation marks omitted];  see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613).  Thus “[t]he determination of a zoning board of appeals ․ must be sustained if it is rational and supported by evidence in the record, even if a reviewing court would have reached a different result” (Matter of Nabe v. Sosis, 175 AD3d 500, 501).

Here, the ZBA's determination that the petitioner lacked standing was not irrational, unreasonable, or arbitrary and capricious (see Matter of McErlean v Freshwater Wetlands Appeals Bd., 230 AD2d 798).  The petitioner failed to meet her burden of showing that she “would suffer direct harm, injury that is in some way different from that of the public at large” (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 774) and “that the in-fact injury of which [she] complains ․ falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773).  Furthermore, the ZBA rationally concluded that the petitioner's allegations of potential harm were speculative and unsubstantiated and failed to meet the petitioner's burden of establishing standing (see Matter of Vasser v. City of New Rochelle, 180 AD3d 691).  As the ZBA properly upheld the Town's issuance of the building permits and of the certificate of occupancy based on the petitioner's lack of standing, the parties' contentions regarding the merits of the petitioner's appeals to the ZBA need not be reached.

The ZBA's determination that General Municipal Law § 239–m did not require referral of the petitioner's appeals to the Orange County Planning Department (hereinafter the Planning Department) was not arbitrary and capricious (see Matter of Save Harrison, Inc. v Town/Village of Harrison, NY., 168 AD3d 949).  The Planning Department agreed that the nature of the appeals did not warrant referral thereto.

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct” (22 NYCRR 130–1.1[a] ).  “[C]onduct is frivolous if ․ it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130–1.1[c][2] ).  Here, the Supreme Court adequately provided “the reasons why the court found the [petitioner's] conduct to be frivolous” (22 NYCRR 130–1.2) and providently exercised its discretion in granting that branch of the Tonnesons' motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the petitioner and for an award of costs, including attorneys' fees (see Board of Mgrs. of Foundry at Washington Park Condominium v Foundry Dev. Co., Inc., 142 AD3d 1124, 1125).  The amount of the award is the subject of a related appeal (see Matter of Kopald v Town of Highlands New York Zoning Bd. of Appeals, ––– AD3d –––– [Appellate Division Docket No. 2021–05163;  decided herewith] ).

The parties' remaining contentions are either not properly before this Court or without merit.

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.