Opinion
EF2019-66919
05-07-2020
In the Matter of the Application of Charles C. FREIHOFER, III, Petitioner, for a Judgment Pursuant to CPLR Article 78 v. TOWN OF QUEENSBURY PLANNING BOARD, Gregory J. Teresi, Lawrence A. Davis, and Dark Bay Properties, LLC, Respondents. Dark Bay Properties, LLC, Lawrence A. Davis, and Gregory J. Teresi, Petitioners, v. Town of Queensbury Zoning Board of Appeals, and Charles C. Freihofer, III, Respondents.
Caffry & Flower, Glens Falls (John W. Caffry, of counsel), for petitioner Freihofer in proceeding no. 1, and respondent, Freihofer in proceeding no. 2. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Gregory J. Teresi, of counsel), for respondents Gregory J. Teresi, Lawrence A. Davis and Dark Bay Properties, LLC in proceeding no. 1, and for petitioners Dark Bay Properties, LLC, Lawrence A. Davis and Gregory J. Teresi in proceeding no. 2. Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart, of counsel), for respondent Town of Queensbury Planning Board in proceeding no. 1, and respondent Town of Queensbury Zoning Board of Appeals in proceeding no. 2.
Caffry & Flower, Glens Falls (John W. Caffry, of counsel), for petitioner Freihofer in proceeding no. 1, and respondent, Freihofer in proceeding no. 2.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Gregory J. Teresi, of counsel), for respondents Gregory J. Teresi, Lawrence A. Davis and Dark Bay Properties, LLC in proceeding no. 1, and for petitioners Dark Bay Properties, LLC, Lawrence A. Davis and Gregory J. Teresi in proceeding no. 2.
Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart, of counsel), for respondent Town of Queensbury Planning Board in proceeding no. 1, and respondent Town of Queensbury Zoning Board of Appeals in proceeding no. 2.
Martin D. Auffredou, J.
Before the Court is a combined CPLR Article 78 proceeding, the first of which was brought by petitioner Charles C. Freihofer, III ("Freihofer"), to annul, vacate, and set aside a June 25, 2018 determination by respondent Town of Queensbury Planning Board ("the Planning Board"), which approved a site plan review application filed by respondent Gregory J. Teresi ("Teresi"), to build a residence on a .23 acre parcel of real property on the shores of Lake George ("the project lot"), owned by respondent Lawrence A. Davis ("Davis"), next to real property owned by Freihofer. Teresi's site plan application proposes the construction of a 1,812 square foot home on the project lot, identified by tax map lot no. 239.18-1-27.2. Respondent Dark Bay Properties, LLC ("Dark Bay"), owns a 1.59 acre lot identified by tax map lot no. 239.18-1-27.1 ("the Dark Bay lot"), which adjoins the project lot. In the second proceeding, Teresi, Davis, and Dark Bay (collectively referred to as "proceeding no. 2 petitioners"), maintain that the respondent Town of Queensbury Zoning Board of Appeals ("ZBA"), erred when it determined that the project lot and the Dark Bay lot merged as a matter of law.
See letter order dated July 20, 2019.
Teresi and Davis are members of the limited liability company.
In deciding this matter, the Court has reviewed and considered: Freihofer's verified petition, dated July 25, 2018, with exhibits; proceeding no. 2 petitioners' verified answer, verified October 1, 2019; the proceeding no. 2 petitioners' verified petition, dated June 24, 2019; Freihofer's verified answer, verified September 27, 2019; the planning board's and the ZBA's combined verified answer, verified September 30, 2019; the administrative record, received October 1, 2019; Freihofer's memorandum of law in proceeding no. 1, dated August 30, 2019; the affidavit of Attorney John W. Caffry, sworn to August 30, 2019; the proceeding no. 2 petitioners' memorandum of law dated September 9, 2019; the letter to the Court from Attorney John D. Wright dated October 1, 2019; Freihofer's memorandum of law in proceeding no. 2 dated October 1, 2019; the planning board's and the ZBA's memorandum of law dated October 1, 2019; Freihofer's reply memorandum of law in proceeding no. 1 dated October 22, 2019; and, the affidavit of Attorney John W. Caffry, sworn to on October 22,2019. Oral argument was conducted on November 22, 2019.
The chain of title and the location of the lots are the bases of the disputes between the parties. In 1943, David H. Dugan, Jr. and Marjorie Stone Dugan acquired title to the Dark Bay lot, which they conveyed to Marjorie Stone Dugan individually by deed in 1948. In 1956, Marjorie Stone Dugan acquired the project lot by deed. Prior thereto, the project lot had been conveyed by deed in 1883 and 1907. As of 1956, Marjorie Stone Dugan held title to both parcels apparently until her death, after which her estate conveyed them to Scott H. and Jacqueline Wheeler (the "Wheelers") by separate deeds recorded January 2, 2008, with each lot given its own tax map lot number. At the Wheelers request, in 2008, the lots were merged into a single tax map lot, bearing the number 239.18-1-27. The Wheelers then conveyed both parcels to Davis in a single deed in 2015. In 2016, Davis conveyed the Dark Bay lot to Dark Bay. Davis did not file any applications for subdivision approval before doing so.
Both the project lot and the Dark Bay lot are located within the Adirondack Park in a designated Rural Use Area under the Adirondack Park Agency ("APA"), Act Land Use and Development Plan Map, and are subject to the Adirondack Park Agency Act ("the Act") (see Executive Law Article 27). In addition, both lots are located in the Waterfront Residential zoning district ("WR District"), under the Town of Queensbury Town Code ("Zoning Law"). Lots in Rural Use Areas must have a minimum shoreline width of 150 feet ( Executive Law § 806[1][a][1] ), and lots within the WR District must be a minimum of 2 acres in size. The Act was passed in an effort to protect and maintain the character of the Adirondack Park, in part by limiting future development of the lands therein ( Executive Law § 801 ). The legislature apparently recognized, however, that not every existing lot within the park would comply with the Act's various requirements, including shoreline width requirements, and made allowances and exemptions for those existing nonconforming parcels (see Executive Law §§ 802, 811 ). A residence may be built on a nonconforming lot if it does not adjoin other lots in common ownership (see Executive Law § 811[1][a] ). Nonconforming lots adjoining other lots in common ownership at the time of the Act's effective date will merge unless they are part of a preexisting subdivision. Whether a lot qualifies as a preexisting subdivision requires an inquiry into: the percentage of lots in the subdivision sold before that date; the locations of the sold lots; "the nature, extent and cost of structures and improvements directly related to the subdivision completed or commenced prior to such date, relative to all such necessary improvements related to the subdivision"; the locations of those improvements; and "demonstrated efforts to sell lots prior to such date" ( 9 NYCRR 573.4 [f][4] ). As part of the Town of Queensbury's ("the Town"), zoning and land use plan, the Town must determine whether proposed projects comply with the Act and implementing regulations (see Executive Law §§ 807, 808 ; 9 NYCRR Part 582; Zoning Law § 17-13-060). Here, the Zoning Law states, in relevant part,
The Town of Queensbury has an APA approved land use plan.
As relevant here, section 811 [1] provides:
"Notwithstanding any other provision of this article, including the provisions of the land use and development plan and the shoreline restrictions, the following provisions shall apply in connection with the project review jurisdiction of the agency under section 809 and application of the shoreline restrictions either by the agency in the review of a project or by operation of section 806.
a. Single family dwelling on existing vacant lot. One single family dwelling or mobile home shall be allowed to be built on any vacant lot which was on record on the date that this act shall become a law regardless of the overall intensity guidelines, or the minimum lot width provisions of the shoreline restrictions. For the purposes of this exemption, such a lot must not adjoin other lots in the same ownership, provided however, that all such lots in the same ownership may be treated together as one lot." See the APA's implementing regulations at 9 NYCRR Section 573.4 [g].
This regulation provides [g]: Merger of lots acquired prior to May 22, 1973. Adjoining lots owned by landowner, each acquired prior to May 22, 1973, except lots in a preexisting subdivision or separately-owned preexisting vacant lots of record as described in section 811 (1) (a) of the Adirondack Park Agency Act, shall be deemed to have merged into one undivided lot as of that date, even if described in different deeds or acquired at various times.
The Act defines preexisting subdivision as "any subdivision or portion of a subdivision lawfully in existence prior to [August 1, 1973]" where lawfully "means in full compliance with all applicable laws, rules and regulations, including, without limitation, possession of and compliance with any permit or other approval" required by law (Executive Law § 802[49] ; see 9 NYCRR 573.4 [f][3] ). A subdivision is
"any division of land into two or more lots ... whether adjoining or not, for the purpose of sale, lease, license or any form of separate ownership or occupancy (including any grading, road construction, installation of utilities or other improvements or any other land use and development preparatory or incidental to any such division)...Subdivision of land shall include any map, plat or other plan of the division of land, whether or not previously filed"
(Executive Law § 802 [63] ).
Development of nonconforming lots in ... the Adirondack Park shall be in accordance with § 811 of New York State Executive Law Article 27 (the APA Act). Development of such lots shall also comply with the minimum yard setback, lot width, permeability and building height limitations as set forth by this chapter. In the event that a lot located within ... the Adirondack Park does not comply with the minimum density or minimum shoreline width requirements and adjoins other lots of the same ownership, the lots will be treated together as one lot for zoning purposes (Zoning Law § 179-13-060[D] ).
The Zoning Law further directs that the Planning Board shall not approve a proposed site plan unless it first determines that such site plan "complies with all other requirements of this chapter, including the site plan review standards as set forth in Subsection F of this section, the dimensional, bulk, and density regulations of the zoning district in which it is proposed to be located (Article 3 and Table 1), the applicable requirements of all other articles that apply" (Zoning Law § 179-9-080[B] ).
Within this legal framework, on October 16, 2017, Teresi and Davis filed the site plan application to build the home on the project lot with the Planning Board. Freihofer opposed the site plan, and on January 20, 2018, his counsel filed a letter with exhibits with the Planning Board objecting to the application. In the letter, Freihofer contends, inter alia , that because the two lots were under common ownership on May 23, 1973, the effective date of the Act, and, more specifically, section 811 [1] [a], the project lot and Dark Bay lot merged as a matter of law. Freihofer also asserts that the two lots merged as a matter of fact in 2008 when the Wheelers, "per owner's request[,]" had Warren County combine the two lots into a single tax map lot. According to Freihofer's letter, because both lots are nonconforming and were in common ownership from 1943 to 2016, and because both lots are located within the Adirondack Park they must "be treated together as one lot for zoning purposes" (see Zoning Law Section 179-13-060[D] ). Freihofer refers to the 2016 conveyance of the Dark Bay lot as an illegal subdivision. Freihofer's letter also states that the proposed project violates the Zoning Law's dimensional requirements because the minimum shoreline width and side-yard setback requirements are not met. The Planning Board noticed and conducted a public hearing on the application on March 27, 2018, and June 25, 2018, and approved the application on June 25, 2018. Thereafter, on July 25, 2018, Freihofer commenced the first proceeding. Freihofer asks the Court to annul the site plan approval because it was arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, and affected by error of law.
Freihofer maintains that the Planning Board's site plan approval should be annulled and vacated because Zoning Law § 179-9-080 required the Planning Board to make a determination that the project lot is not legal separate lot, and, moreover, due to its substandard non-conforming size, the project lot did not meet the minimum lot width requirements for the WR District (150 feet required with 40 feet actual), and side-yard setback requirements for the WR District (15 feet required with 12.1 feet actual). Proceeding no. 2 petitioners oppose, asserting that the claims are now moot because of a subsequent ZBA decision. The Planning Board opposes, asserting that the claims are not properly before the Court.
After Freihofer filed the first petition in this combined proceeding, the administrative process with the Town continued. On September 20, 2018, counsel for proceeding no. 2 petitioners wrote to the Town Zoning Administrator requesting a determination that the project lot "is a previously subdivided separate buildable lot." Freihofer's counsel submitted a letter to the Zoning Administrator responding to proceeding no. 2 petitioners' letter on October 19, 2018, wherein he incorporated by reference his January 10, 2018 letter to the Planning Board which objected to any site plan application approval. The Zoning Administrator issued his determination by letter dated January 4, 2019. He determined that the project lot "requires an Area Variance for relief from the shoreline width requirements[.]" As to merger of the project lot and the Dark Bay lot, he concluded that based upon his review of the operative provisions of the Zoning Law and the Act, neither contain "specific references as to the timing of the applicability of the ‘merger’ provision other than the first sentence of the Zoning Law section that begins with: ‘Development of ...[,]’ " and that consideration of whether adjoining lots have merged "is intended to occur at the time that development is pursued[.]" The Zoning Administrator determined that "the ‘merger’ provision does not mandate further variances as the [project lot] and the [Dark Bay lot] were not in common ownership at the time of development or at the time of submittal of any land use development application." On March 4, 2019, Freihofer filed an appeal of the Zoning Administrator's determination to the ZBA, challenging his application of the merger rule. The ZBA held a public hearing on April 17, 2019, and May 22, 2019. As part of that hearing process, proceeding no. 2 petitioners filed a copy of their September 20, 2018 letter with exhibits, including copies of deeds in the chain of title, a 1948 survey of the lots which was filed with the Lake George Park Commission, and an aerial survey of the lots which was filed by the New York State Department of Public Works and Department of Conservation on April 9, 1965. Both surveys depict a lot line between the project lot and the Dark Bay lot. Additionally, Freihofer filed a May 11, 2019 letter from former APA counsel wherein she provided her interpretation of the Act and regulations as they pertain to the project lot and Dark Bay lot and concluded that the lots had merged in 1973. On May 22, 2019, the ZBA voted to uphold Freihofer's appeal and reverse the Zoning Administrator's January 4, 2019 determination that the project lot is a legal separate building lot.
Proceeding no. 2 petitioners then commenced the second proceeding, contending that there is ample evidence to show that the project lot is a preexisting subdivision based upon the deeds to the lot, including a 1907 deed which references "lot no. 2 of the subdivision of the east part of no. 7 of the French Mountain Tract[,]" and the two surveys. Proceeding no. 2 petitioners also contend that examination of the operative merger provisions of the Act and Zoning Law establish the trigger date for merger as the date development is proposed, and that had the legislature intended merger on May 22, 1973, the legislation would have expressly stated so. Moreover, proceeding no. 2 petitioners contend that the ZBA's determination is erroneous because the ZBA failed to identify a legal or factual basis for its determination. Thus, proceeding no. 2 petitioners contend that the project lot is a preexisting, nonconforming lot entitled to exempt status under section 811 (1) (a) of the Act and that the ZBA's determination otherwise was arbitrary, capricious and an abuse of discretion; that it lacked a rational basis; was made in violation of lawful procedure; constituted an error of law; and was made upon a lack of substantial evidence. In addition, proceeding no. 2 petitioners seek a declaratory judgment that the proposed use of the project lot, as a separate lot for a single family residence, is permissible as a matter of law under the zoning law, provided a lot with variance is requested and approved by the ZBA. Freihofer and the ZBA both oppose the petition.
The Court will consider the instant petitions in turn. The Court of Appeals "has often noted that local zoning boards have broad discretion... Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure. A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence" ( Pecoraro v. Bd. of Appeals of Town of Hempstead , 2 NY3d 608, 613 [2004] [internal citations omitted]; see also CPLR 7803 ; Matter of Ifrah v. Utschia , 98 NY2d 304, 308 [2002] ). The same standard applies to review of decisions made by town planning boards (see Town of Mamakating v. Village of Bloomingburg , 174 AD3d 1175, 1178 [3d Dept. 2019] ). " ‘The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them’ " ( Pecoraro , 2 NY3d at 613 [2004], quoting Matter of Cowan v. Kern , 41 NY2d 591, 599 [1977] ).
In considering Freihofer's petition, the Court will first determine whether it is moot. According to proceeding no.2 petitioners, Freihofer's petition is moot because the ZBA determined the project lot is not a preexisting and separate building lot, and even if the Court reverses the ZBA determination, the proposed project may require a new and different site plan application altogether. Furthermore, they claim the Zoning Administrator's determination that the project requires a variance from minimum shoreline frontage requirements renders Freihofer's claim that the Planning Board should have declined the site plan application on noncompliance with those requirements moot. Freihofer counters that the proceeding is not moot because no town authority has made any determination regarding the side-yard setback issue, because the site plan approval has not been revoked, and because the Planning Board's power to apply dimensional, bulk, and density requirements of the town zoning law is likely to recur. "[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" ( Govel v. Trustco Bank , 2020 NY Slip Op. 02306 [3d Dept. 2020] quoting Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach , 98 NY2d 165, 172 [2002] ). The Court has jurisdiction only over "live controversies" and an action is "moot unless an adjudication of the merits will result in immediate and practical consequences to the parties" ( Govel v. Trustco Bank , 2020 NY Slip Op. 02306 [3d Dept. 2020] quoting Matter of Sullivan Farms II, Inc. v. Town of Mamakating Planning Bd. , 165 AD3d 1447, 1449 [2018] ). However, an issue that "is likely to recur, either between the parties or other members of the public" is an exception to the mootness doctrine" ( Coleman v. Daines , 19 NY3d 1087, 1090 [2012] ). While the Court agrees that Freihofer's first and second claims regarding the legal status of the project lot and the shoreline width of the project lot, respectively, are moot given the Zoning Administrator's subsequent variance requirement, the petition as a whole is not. Moreover, although the ZBA's subsequent decision that the site plan approval was premised on an improper analysis of the law significantly undermines the site plan approval, the site plan approval still exists. The Court's decision as to the Planning Board's site plan approval will have immediate and practical consequences for the parties. Annulling the plan will require proceeding no. 2 petitioners to apply to the ZBA for variances, offer a new site plan application to the Planning Board, or abandon their project.
Having determined that Freihofer's petition is not wholly moot, the Court turns to his remaining claim that the Planning Board approved the site plan application although it violated the side-yard setback requirements in the Zoning Law. The Planning Board opposes Freihofer's petition, arguing that it does not have the authority to interpret zoning laws, and that because Freihofer asserts that the Planning Board should have acted ultra vires to deny the site plan application, the petition must be denied. The Court disagrees with the Planning Board's analysis. While it is true that "[p]lanning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals" ( Swantz v. Planning Bd. of Vill. of Cobleskill , 34 AD3d 1159, 1160 [3d Dept 2006] ; see Matter of Gershowitz v. Planning Bd. of Town of Brookhaven , 52 NY2d 763, 765 [1980] ), Freihofer asks the Planning Board not to interpret the Zoning Law but to apply it.
Pursuant to Zoning Law § 179-9-080(B), "[t]he Planning Board shall not approve a site plan unless it first determines that such site plan ...complies with... the dimensional, bulk, and density regulations of the zoning district in which it is proposed to be located." Projects within the WR District must have side yard setbacks of 25, 20, 15, or 12 feet depending on the lot width. Lots greater than or equal to 50 feet and less than or equal to 60 feet in width must have a side setback of 15 feet (Zoning Law § 179-3-040[A][5][b][3] ), where lot width is defined as "[t]he average distance between the side lot lines of the lot" (Zoning Law § 179-2-010). The record does not show that the Planning Board examined the side-yard setbacks as part of its site plan review. The site plan application form includes a section entitled "Setback Requirements" wherein applicants must note the required setback requirement, the existing setback, and the proposed setback, which information, whether or not correct, Teresi and Davis did supply. Were the planning board not to make certain that a proposed project meets setback requirements, surely such information would not be sought by the application. Furthermore, ensuring that the setback requirements are met is not interpreting zoning law, it is simply applying discrete measurements in the zoning law to a proposed project. Such application of the zoning law is distinguishable from the prohibited interpretation of the zoning law found in the supporting cases cited by the Planning Board (see Swantz v. Planning Bd. of Vill. of Cobleskill , 34 AD3d at 1160-61 [planning board could not decide whether proposed parking lot is permissible use within zoning law]; Matter of DeMarco v. Village of Elbridge , 251 AD2d 991, 991 [4th Dept. 1998] [planning board impermissibly determined that proposed expanded nonconforming use violated zoning law]; Matter of J & R Esposito Builders v. Coffman. 183 AD2d 828, 829 [2d Dept. 1992] [planning board improperly denied application on set back issue when zoning authority already issued variance] ).
The Planning Board also argues that Freihofer's petition must be dismissed because the Zoning Administrator determined that the proposed project complies with applicable zoning laws before Teresi and Davis submitted the site plan application, which determination the Planning Board cannot contradict. The Planning Board points to the cover letter to the site plan application, from Teresi's and Davis's counsel, which states that "[t]he project has been designed so that no area variances are required[,]" and statements by counsel for Teresi at the public hearing on the matter that the Zoning Administrator "made a determination before we got here that it was an existing lot... so there's no variances" as proof that a zoning official had approved the project. The Court searched the record and found only one other instance of reference to prior approval of the project by the Zoning Administrator. When the public hearing on the application was first opened, counsel for Freihofer referenced his January 2018 letter raising concerns about the project and the chairperson stated "[t]he information that we've received from the Town is that, for our purposes, we should consider this a buildable lot." Notably, the Zoning Administrator did not offer comment at the public hearing on the application regarding his determination. Even assuming that such statements prove that the Zoning Administrator considered all of the zoning issues raised by Freihofer and determined that the proposed project was entirely zoning compliant, absent from the record is any substantive discussion or explanation of that determination. Beyond what appears on the site plan approval application, "[t]he record is devoid of any actual measurements, and [the Planning Board] ha[s] made no attempt to explain how the measurements on the preliminary site plan approval map are in compliance with the requirements of the zoning ordinance" (Matter of Schweichler v. Village of Caledonia , 45 AD3d at 1284 ). The conclusory statements in the record as to the Zoning Administrator's determination that the project complies with the zoning laws do not provide a rational basis and substantial evidence for the Planning Board's approval of the project (see Matter of Schweichler v. Village of Caledonia , 45 AD3d at 1284 ). Absent substantial evidence of such considerations in the record, the Planning Board's decision is arbitrary and capricious and must be annulled.
The Court now turns to the second proceeding. Proceeding no. 2 petitioners' contention that the ZBA's determination was arbitrary, capricious, and an abuse of discretion is three-fold. First, they argue that the project lot was a preexisting subdivision within the meaning of the law at the time the Act went into effect; second, they assert that because the project lot and Dark Bay lot had separate owners at the time Teresi submitted the site plan application, the subject lot qualifies as part of a preexisting subdivision; and third, they claim that the ZBA did not make specific factual findings in the record to support its decision. Freihofer and the ZBA oppose, both arguing that the ZBA's decision is supported by a rational basis in the record. While the Court does not have to defer to a purely legal interpretation made by a zoning board, a zoning board's " ‘fact-based interpretation of a zoning ordinance that determines its application to a particular use or property is entitled to great deference’ " ( Matter of Northwood School, Inc. v. Joint Zoning Board of Appeals for the Town of North Elba and Village of Lake Placid , 171 AD3d 1292, 1293-94 [3d Dept. 2019] quoting Matter of Erin Estates, Inc. v. McCracken , 84 AD3d 1487, 1489 [3d Dept. 2011] ). When "the record as a whole provides a rational basis for [a ZBA's] decision[,]" it will not be disturbed ( Matter of Edscott Realty Co. v. Town of Lake George Planning Board , 134 AD3d 1288, 1290 [3d Dept. 2015] ).
In support of their arguments, proceeding no. 2 petitioners rely on the property descriptions in the deeds and the two surveys, all of which they provided to the ZBA for consideration. They also point to comments made at public hearing on the appeal. The minutes from the ZBA public hearing on April 17, 2019, indicate that the members reviewed the papers presented by proceeding no. 2 petitioners, their comments at the hearing, and the zoning administrator's explanation for his decision that the project lot was a separate buildable lot. The ZBA then tabled the matter to give all members time to read proceeding no. 2 petitioners' and Freihofer's papers before their next meeting. In the interim, Freihofer submitted the letter from former APA counsel in which she interpreted the Act as merging the project lot and Dark Bay lot as a matter of law. The ZBA continued the public hearing on the appeal on May 22, 2019. The meeting minutes show that Teresi offered comment, arguing that the Act did not define a date by which the adjoining parcels would merge, and that the relevant time to determine merger is, pursuant to Executive Law § 811, at "project review" which did not occur until Teresi and Davis submitted the site plan approval application. When public comment was closed, the members were polled and a majority stated that the parcels merged and voted to uphold the appeal.
The Court will first dispense with proceeding no. 2 petitioners' claim that because the ZBA did not make specific findings of fact in the record, it must vacate the determination. Specific factual findings notwithstanding, the members did indicate that they read the relevant submissions and heard the arguments of counsel, all of which are contained in the record and provide support for the decision. "The record ‘contain[s] sufficient facts to permit intelligent judicial review of the ... determination’ " ( Matter of Livingston Parkway Assn. v. Town of Amherst Zoning Bd. of Appeals , 114 AD3d 1219, 1220 [4th Dept. 2014] quoting Matter of Iwan v. Zoning Bd. of Appeals of the Town of Amsterdam , 252 AD2d 913, 914 [3d Dept. 1998] ). Next, based on the evidence in the record, the ZBA rationally determined that the survey map showing a driveway and house and aerial study were not proof of a preexisting subdivision as contemplated by the Act, despite the separate lot lines (see Executive Law § 802 [49], [63], see Crater Club, Inc. v. Adirondack Park Agency , 86 AD2d 714, 714 [3d Dept. 1982] ). It is undisputed that the project lot and the Dark Bay lot had a common owner on May 22, 1973, the date the Act became effective. The appeal called on the ZBA to decide whether the project lot was a preexisting subdivision and whether the merger date was the effective date of the statute or the date of project review. Looking at the regulatory criteria for finding a preexisting subdivision, the ZBA could reasonably conclude that the house, which apparently no longer exists, depicted on the project lot in the 1948 survey is not a "structure and improvement directly related to the subdivision" ( 9 NYCRR 573.4 [f][4] ). Neither does the record show proof of any efforts to sell the project lot, or any other lots sold in the supposed subdivision between the Dark Bay lot and the project lot before 1973 (see Id. ). "[W]hile the record may well have supported a finding that [the previous owner] had a general intention to develop the property sometime in the future, it does not support a finding of actual subdivision prior to August 1, 1973" ( Crater Club, Inc. v. Adirondack Park Agency , 86 AD2d at 714-15 ). Although proceeding no. 2 petitioners pointed to the property deed descriptions, which include the word subdivision, as proof of a preexisting subdivision, the ZBA could rationally conclude that such descriptions did not signify a preexisting subdivision as required by the Act.
The record also supports the ZBA's disregard for proceeding no. 2 petitioners' claim that the time to consider merger is at project review. Proceeding no. 2 petitioners relied on Executive Law § 811, which is entitled "Special provisions relating to project review jurisdiction and the shoreline restrictions." Proceeding no. 2 petitioners pulled the phrase "project review" out of context to support its argument and in an attempt to create ambiguity where there is none. The ZBA read the statutory framework as a whole to make its determination, which is appropriate. " ‘[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ " ( Kuzmich v. 50 Murray Street Acquisition LLC , 34 NY3d 84, 91 [2019] quoting Majewski v. Broadalbin-Perth Central School District , 91 NY2d 577, 583 [1998] ). "Agency project review refers to a detailed study performed by [the APA] prior to issuing a permit for development in certain areas" ( Crater Club, Inc. v. Adirondack Park Agency , 86 AD2d at 715 ) and that provision of the statute applies the shoreline width restrictions to any project review within the jurisdiction of the APA. It does not refer to the review of a single proposed project. Moreover, as the former APA counsel pointed out in her letter considered by the ZBA, all of the implementing regulations refer to merger taking effect as of the effective date of the statute in 1973. The Court finds that the ZBA's decision that the project lot and Dark Bay lot merged and that the project lot is not a legal buildable lot "is a reasonable interpretation of the [Town's] Zoning Law and is amply supported by evidence in the record" ( Matter of Committee to Protect Overlook, Inc. v. Town of Woodstock Zoning Board of Appeals , 24 AD3d 1103, 1105 [3d Dept. 2005] ) and declines to disturb it. Furthermore, in light of the foregoing, the Court denies proceeding no. 2 petitioners' request for judgment that the proposed use of the project lot, as a separate lot for a single family residence, is permissible as a matter of law.
Accordingly, it is hereby
ORDERED and ADJUDGED that the petition in proceeding no. 1 is granted and the determination of the Planning Board is annulled and vacated; and it is
ORDERED and ADJUDGED that the petition in proceeding no. 2 is denied, the determination of the ZBA is confirmed, and the proceeding is dismissed.
The within constitutes the Decision, Order and Judgment of this Court. Signed this 7th day of May, 2020, at Lake George, New York.