CONCETTA CERAME IRREVOCABLE FAMILY TRUST v. TOWN OF PERINTON ZONING BOARD OF APPEALS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of CONCETTA T. CERAME IRREVOCABLE FAMILY TRUST and Anthony M. Cerame, Petitioners-Respondents, v. TOWN OF PERINTON ZONING BOARD OF APPEALS and Town of Perinton, Respondents-Appellants.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, SCUDDER, GORSKI, AND HAYES, JJ. Robert M. Place, Town Attorney, Fairport (Melvin Bressler of Counsel), for Respondents-Appellants. Bansbach, Zoghlin & Wahl, P.C., Rochester (Mindy L. Zoghlin of Counsel), for Petitioners-Respondents.

Respondents appeal from a judgment remitting petitioners' application to respondent Town of Perinton Zoning Board of Appeals (ZBA) for a de novo determination.   Petitioners applied to respondent Town of Perinton (Town) for a permit to build a 2,500-foot berm and noise barrier where their property adjoins an interstate highway.   The Town's Commissioner of Public Works denied the application on the ground that additional information was required from petitioners.   Petitioners appealed that decision to the ZBA, which concluded that the Commissioner's decision was not “arbitrary and capricious,” denied petitioners' appeal and affirmed the decision.   Supreme Court granted the petition to the extent of remitting the application for a de novo determination by the ZBA and limiting the factors that the ZBA could consider in making its de novo determination.

 At the outset, we reject respondents' contention that the court erred in deciding this proceeding on the merits (see Town Law § 282).   Turning to the merits, Town Law § 267-b provides that, in reviewing an administrative officer's determination, the ZBA:

“may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken” (emphasis added).

The ZBA, by the clear wording of its determination, concluded that the Commissioner's decision was subject to the “arbitrary and capricious” standard of review rather than the standard of review set forth in the Town Law. That was error, and thus the court properly remitted the application to the ZBA to review it under the standard set forth in the statute.

 We further conclude, however, that the court exceeded its authority in remitting petitioner's application to the ZBA for a de novo determination with specific directives with respect to what the ZBA could and could not consider.   Judicial review of an administrative determination is limited to whether the administrative action is arbitrary and capricious or lacks a rational basis (see generally Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Administrative agencies such as zoning boards are “vested with great discretion” (Matter of Gomez v. Zoning Bd. of Appeals of Town of Islip, 293 A.D.2d 610, 610, 740 N.Y.S.2d 139).   Accordingly, their determinations are entitled to “great deference” (Matter of Farrell v. Johnson, 266 A.D.2d 873, 873, 697 N.Y.S.2d 900;  see Matter of Cohen v. Hahn, 155 A.D.2d 969, 970, 547 N.Y.S.2d 780) and will be sustained even if the reviewing court might have decided the matter differently (see Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411, 423, 654 N.Y.S.2d 100, 676 N.E.2d 862;  Matter of Cowan v. Kern, 41 N.Y.2d 591, 599, 394 N.Y.S.2d 579, 363 N.E.2d 305, rearg. denied 42 N.Y.2d 910, 397 N.Y.S.2d 1029, 366 N.E.2d 1365).   A reviewing court may not substitute its own judgment for that of the agency (see Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239, 660 N.Y.S.2d 352, 682 N.E.2d 953), and its review “ ‘is limited to the record before the agency and proof outside the administrative record should not be considered’ ” (Matter of Dolan v. New York State Dept. of Civ. Serv., 304 A.D.2d 1037, 1039, 759 N.Y.S.2d 221, lv. denied 100 N.Y.2d 512, 766 N.Y.S.2d 165, 798 N.E.2d 349, quoting Matter of Piasecki v. Department of Social Servs., 225 A.D.2d 310, 311, 639 N.Y.S.2d 319).   Applying those standards, we conclude that the court exceeded its authority in fashioning its directive regarding which facts the ZBA could consider on remittal.

Therefore, the judgment is modified by vacating the penultimate decretal paragraph.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the penultimate decretal paragraph and as modified the judgment is affirmed without costs.

MEMORANDUM: