In D.P.R Scrap Metal. Inc., v Zoning Board of Appeals of the Town of North Hempstead, __AD3d__, [2d Dept 2020], the Appellate Division affirmed the grant of the Article 78 Petition of D.P.R. Scrap Metal Inc. (DPR) annulling the Zoning Board Appeals (ZBA) determination as arbitrary and capricious and not supported by evidence.
In this case, DPR operated its metal recycling business at 125 Harper Street, Westbury, New York in a largely industrial area of North Hempstead, since 2011. In June 2016, the Town filed an eight count criminal information against DPR alleging 125 zoning violations. As a result, DPR filed for various permits that were denied by the Town Building Department. In December 2016, DPR appealed to the ZBA for, among other things, a variance from the requirement of Town Code § 70-187(k), which prohibits storage or baling of scrap paper, iron, bottles, rags, or junk outside the confines of an enclosed building. At its March 8, 2017 public hearing, the only people to appear were DPR and the Deputy Commissioner of the Town’s Building Department, who opposed the appeal. Also, an unsigned letter was read into the record, where the author complained about DPR’s using the property to dismantle cars.
In August 2017, the ZBA issued a decision granting a majority of the variances requested but denied that portion of the application dealing with outdoor storage, effectively denying DPR’s ability to operate at the site. The ZBA opined in its decision, that DPR could build a 40-foot high enclosed structure that would allow DPR to continue to operate in compliance with the Town Code. One of arguments made on the record by DPR was that the nature of recycling metal is such that it could not be done even in a 40-foot high building. DPR commenced this proceeding to annul the ZBA’s determination on the grounds that it was arbitrary and capricious. By judgment entered July 5, 2018, the Supreme Court granted the petition, annulled the determination, and directed the Board to issue the variance. See, In the Matter of the Application of D.P.R Scrap Metal Inc et al , v. Zoning Board of Appeals of the Town of North Hempstead, Index No. 3461/2017 Dated July 3, 2018.
The Supreme Court found that, other than being able to see piles of scrap metal above the 10-foot high fence line, none of the ZBA’s multiple findings and references to noise, dust and vibrations issues discussed in the decision were supported by any evidence, or even by inference, on the record. As a result, the Supreme Court held that such conclusory findings of fact are insufficient to support determination by the ZBA, which is required to clearly set forth “how” and “in what manner” the granting of a variance would be improper. The ZBA appealed.
In affirming the Supreme Court, the Second Department stated:
“[h]ere, we agree with the Supreme Court’s finding that the Board’s determination to deny the variance was arbitrary and capricious and not supported by evidence. The Board’s determination was based on anonymous and unsubstantiated complaints regarding DPR’s metal recycling business, and no evidence was presented at the hearing to demonstrate that granting the variance would lead to an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise be detrimental to the health, safety, and welfare of the neighborhood or community.”
The Second Department held that conclusory findings of fact are insufficient to support a determination and that courts may set aside a zoning board decision only where the record reveals that the board acted illegally or arbitrary, or abused its discretion, or that is merely succumbed to generalized community pressure. Moreover, Second Department concluded that the ZBA’s determination was based on anonymous and unsubstantiated complaints regarding DPR’s metal recycling business, and no evidence was presented at the hearing to demonstrate that granting the variance would lead to an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise be detrimental to the health, safety, and welfare of the neighborhood or community. The Court directed the ZBA to issue the requested variance.
This recent decision reminds both practitioners and municipal boards of the importance to build a record and to substantiate a decision on that record.