Second Department Upholds Town’s Determination Allowing Property Owners to Build Hot Tub in Wetland Buffer
February 22, 2021
In Matter of Bernstein v Putnam Val. Zoning Bd. of Appeals, property owners sought to construct a hot tub on their residential property, located in a protected area known as a wetland buffer. The Wetlands Inspector for the Town of Putnam Valley (the “Town”) granted the owners a permit waiver, and shortly thereafter, the Town’s Zoning Board of Appeals (the “ZBA”) granted their application for area variances, allowing them to begin construction of the hot tub. However, prior to construction, neighboring property owners (“Petitioners”) commenced an Article 78 proceeding challenging the determinations of the Town’s Wetlands Inspector and ZBA.
The proceeding was promptly transferred to the Appellate Division, Second Department “pursuant to CPLR 7804(g), on the ground that the petition raised a substantial evidence issue.” The Second Department held that the lower court’s decision to transfer the matter was erroneous for procedural reasons, but nonetheless chose to decide the case on the merits in the interest of judicial economy.
As the basis for their challenge, Petitioners alleged that the permit waiver violated certain provisions of the Town code governing “freshwater wetlands, watercourses, and waterbodies.” However, in issuing the waiver, the Wetlands Inspector considered various factors such as drainage issues and the impacts the proposed hot tub would have on the surrounding area. In light of such considerations, the waiver was subject to certain conditions, including, inter alia, that the hot tub would not discharge into the surrounding wetlands or wetland buffer area. With such conditions in place, the Wetlands Inspector ultimately determined that any such negative impacts were insignificant.
In an Article 78 proceeding, the Court’s review is limited to whether the underlying administrative determination was “illegal, arbitrary and capricious, or an abuse of discretion.” In deciding the property owners’ application for area variances, the ZBA engaged in a balancing test pursuant to Town Law § 267-B(3), weighing the proposal’s benefits to the applicants against its detriments on the surrounding community. Specifically, the ZBA considered “whether (1) 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) 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) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created.”
Ultimately, the Second Department ruled in favor of the Town and property owners, holding that the Wetlands Inspector properly granted the permit waiver, and the ZBA appropriately considered the property owners’ area variance application by engaging in the necessary balancing test and considering the required factors.
Takeaway: This case serves as a good reminder of a reviewing court’s limited authority in hearing Article 78 appeals. Because local zoning boards are afforded broad discretion in rendering determinations on applications before them, a subsequent Article 78 proceeding is not intended to substitute a judge’s opinion for that of the board. Rather, the court is simply tasked with ensuring that the board engaged in the appropriate legal process in rendering a rationally based determination. That is precisely what the Court concluded here.