Katz v. Bodkin

No. 3312/79 (N.Y. Sup. Ct. May 15, 1979)

The court reverses a municipal zoning board's denial of homeowners' request for a zoning variance to allow installation of a rooftop solar collector. The section of the town zoning ordinance upon which the board relied, when strictly construed, does not apply to the installation of solar collectors. Moreover, the board misread the ordinance when it determined that the restriction on mechanical equipment to 10 percent of roof area refers to the section of the roof supporting the solar panels rather than to the roof as a whole. In addition, the court finds that petitioners have made a sufficient showing of practical difficulty to justify issuance of an area variance. The court also rules that restrictive local zoning action must give way to some extent to the declared national and state policies of encouraging energy conservation and the use of solar energy devices for private dwellings. As a final ground for its decision, the court holds that the board's use of closed sessions to make its decisions regarding petitioners' request violated the town Open Meetings Law. The denial of petitioners' request for a variance was therefore both arbitrary and in violation of the relevant legal requirements, and the board is thus ordered to issue petitioners a building permit.

Counsel for Petitioners
Jay A. Kranis, Arthur A. Katz
Warshaw, Burstein, Cohen, Schlesinger & Kuh
555 Fifth Ave., New York NY 10017
(212) 972-9100

Counsel for Respondents
James J. Johnston, Mamaroneck Town Attorney
1889 Palmer Ave., Larchmont NY 10538
(914) 834-4662

Counsel for Amicus Curiae New York State Common Cause
Stanley H. Lieberstein
Ostrolenk, Faber, Gerb & Soffen
260 Madison Ave., New York NY 10016
(212) 685-8470

[9 ELR 20424]

Wood, J.:

By notice of petition dated February 23, 1979, petitioners seek judgment, pursuant to CIV. PRAC. Article 78, reversing respondents' determination which denied petitioners a variance from Article VIII, § 89-45A of the Zoning Ordinance of the Town of Mamaroneck which sought leave to erect solar panels on the roof of petitioners' house to aid in the use of a domestic hot water system. Petitioners seek an order of the court directing the granting of such variance or, alternatively, a judgment declaring said Zoning section unconstitutional.

By order to show cause dated March 19, 1979 (Ferraro, J.), Common Cause, a national organization, seeks an order, through its counsel, permitting it to file a memorandum of law as Amicus Curiae.

The foregoing applications are hereby consolidated for disposition.

The application by Common Cause for leave to submit a memorandum of law as Amicus Curiae is granted. Intervention, to the extent sought, will not in any way delay determination of this matter nor has any viable prejudice been shown. (3 CAR., WAIT 2D, § 19:142.)

On October 11, 1978 petitioner, Arthur A. Katz, formally applied to the Mamaroneck building department for a permit to construct a solar panel domestic hot water system. The panels were to be placed on the roof of the applicant's home. On October 24, 1978 the building inspector disapproved the application as not in compliance "with Article VIII Section 89-45A 'Height Exceptions' which restricts the total area of mechanical equipment to 10 percent of area of supporting roof. Proposed mechanical equipment will cover 20 percent of supporting roof." (Petitioners' Exhibit A.)

The pertinent section of the zoning ordinance is § 89-45 which states, in pertinent part:

A. The height limitations of this ordinance shall not apply to . . . necessary mechanical or amateur electronic devices and appurtenances usually carried above the roof level. Such features, however, shall be erected only to such heights as are necessary to accomplish the purpose they are intended to serve, and the total area covered by such features shall not exceed ten percent (10%) of the area of the roof on which they are located.

By application dated October 11, 1978, petitioner appealed to the Town Zoning Board of Appeals (ZBA) for a modification of § 89-45A "to allow the installation of 75 sq. ft. of solar collectors at the rear of the dwelling covering 20 percent of the roof area to which they are attached." (Petitioners' Exhibit B.) In substantiation of the appeal, petitioners stated that through such solar collecting a saving of energy would be effected, would be ecologically sound and, in furtherance thereof, the United States Department of HUD had awarded petitioners a $400 grant toward the expense of the installation.

A public hearing was held by the ZBA on November 22, 1978. Petitioner contends that after presentation of his case for modification the ZBA went into closed session and, on its return to the hearing room, advised of a unamimous denial of the application. Petitioner claims this closed session to be a violation of Town Law, § 267(2) and Public Officers Law, § 95(a). The pertinent minutes of the hearing held on November 22, 1978 do not indicate that the vote of the ZBA was effectuated in closed session and this is specifically denied by respondents in their answer.

The denial of the application was followed by the adoption of a resolution by the ZBA wherein it was resolved that the Board denied the application on the following grounds:

1. Applicant failed to show that the solar collectors could not be located elsewhere on his dwelling where the same efficiency would be provided and be more aesthetically pleasing to the neighborhood.

2. Applicant failed to show that energy could be conserved by other construction, methods.

3. Petitioners' land presented no special circumstances or conditions peculiar thereto.

4. Facts and circumstances claimed by petitioner to entitle him to the variance [are] not such as would deprive him of the reasonable use of his land.

5. The granting of the variance would not be in harmony with the general purposes and intent of the zoning ordinance and not aesthetically in keeping with the residential neighborhood.

Petitioners claim these assigned grounds for denial are arbitrary, capricious, and unsupported by the evidence adduced at the public hearing.

In answer to the grounds assigned for denial, petitioner alleges that, as to 1. above, his contractor, Mr. Flohr, testified that due to tree shading, only the higher part of petitioners' roof was adequate for the proper functioning of the solar panels and no contrary evidence on this point was adduced.

Further, as to 1. above, the ZBA stated a failure to show that another location of the solar panels would be more aesthetically pleasing and in 5. above, would not be aesthetically in keeping with the residential neighborhood. Petitioner maintains that at the public meeting not only did not neighbors speak in opposition to his application but several resident spoke in favor thereof.

As to 2. above, it was suggested by the ZBA, that better insulation of the house could better serve to conserve energy. Petitioner contends his house was adequately insulated and, in any event, the ZBA should have no concern with petitioners' method of seeking conservation of energy.

Additionally, as to 5. above, the finding by the ZBA that the granting of the variance would not be in harmony with the general purposes and intent of the zoning ordinance, petitioner contends that Town Law, § 263, in defining the purposes of zoning, states that such regulations:

. . . shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of the buildings and encouraging the most appropriate use of land throughout such municipality.

The minutes of the hearing of November 22, 1978 indicate (at p.3) that the acting chairman of the ZBA advised petitioners' contractor to consider the possible relocation of the solar panels and, if done, "the Board would review the application at the next meeting."

Apparently, in compliance therewith, petitioner, by application dated January 9, 1979 resubmitted his application to the ZBA (Petitioners' Exhibit F, with attachment) wherein the solar panels were physically located in such a position on petitioners' roof as to reduce the covered area from the original 20 percent to approximately 16 percent, and by reducing the angle of the panels from 46 degrees to 35 degrees the visibility thereof from the front of his home was reduced 70 percent from the prior submission.

A new hearing was calendared on petitioners' resubmission for January 24, 1979. Prior to the hearing on the date, petitioners allege (and respondents deny) that the ZBA, in closed session, voted not to hear petitioners' resubmission basing its determination, apparently, on a certain ZBA rule prohibiting a rehearing within six months after denial of an application. Petitioners claim this latter refusal to hear his resubmission upon the merits was arbitrary and capricious since their resubmission of January 9, 1979 was, in effect, a new application and, even if not so considered, it was a submission pursuant to the direction of the Board at its meeting of November 22, 1978 whereat the Board indicated its [9 ELR 20425] willingness to review petitioners' original application "as the next meeting" if relocation of the panels was effectuated.

It must be noted that petitioners' resubmission, based upon a new application for a variance for which a new fee was imposed and paid, was never brought to fruition by way of a public hearing before the ZBA. We are told that it was determined that the resubmission was, in effect, a rehash of the prior application with no substantial changes effectuated. But this determination was not made, apparently, by the entire board sitting as the officially designated ZBA, rather this determination seems to have been the result of a discussion between the chairman of ZBA, E. Robert Wassman and the Town Building Inspector. The conclusion that the resubmitted plans were not materially changed from those originally submitted in November 1978 was not reached in an open, duly constituted sitting by the ZBA. It was reached outside a public hearing and resulted in a denial by the ZBA to consider the resubmission on its merits in open hearing, premised on the ZBA's Regulation Rule #13. Parenthetically, the revised application and the accompanying additional information was accepted by the Building Department after payment of another application fee and no advice was then forthcoming from that Department that the resubmitted plans were inadequate or merely a rehash of the prior plans and, thus, no review hearing would be granted by the ZBA. Of interest too, is the fact that presented with the second submission were consents by 26 of petitioners' neighbors indicating their knowledge of the original plans as well as the resubmitted plans and that no objection thereto was interposed to the granting of the variance.

Petitioners state that the ZBA determination of January 30, 1979, based as it was on the hearing of November 22, 1978, must be amended and reversed for the following reasons:

1. The pertinent section of the zoning ordinance (Article VIII, § 89-45A) does not apply to the construction sought by petitioners and, thus, reliance thereon by the ZBA was misplaced.

2. Even if that section were applicable to petitioners' proposed construction, petitioners have adduced sufficient evidence to justify the granting thereof based on practical difficulties and the refusal of the ZBA to even consider the resubmission was arbitrary, capricious, and an abuse of discretion.

3. Even if that section were applicable the refusal of the ZBA to grant a variance amounts to a restriction of conversions to and utilization of energy saving devices and is, thus, against present public policy.

4. The practice of the ZBA, as demonstrated here, of retiring for deliberations into closed sessions, is violative of the Open Meetings Law (Public Officers Law, Article 7).

Concededly, § 89-45A of the Zoning Ordinance does not apply to petitioners' proposed installation insofar as the latter is not a spire, cupola dome, chimney, ventilator, skylight, water tank, or bulkhead. Nor does this court find that the proposed installation falls within the ordinance prohibition against "necessary mechanical or amateur electronic devices and appurtenances."

It must be remembered "that zoning ordinances, being in derogation of common-law property rights, are to be strictly construed against the municipality and in favor of the landowner (citing authorities)" Matter of Sibarco Stations, Inc. v. Town Board of Vestal, 29 S.D.2d 907(1), 908 (N.Y. App. Div. 1968), reversed on other grounds, 24 N.Y.2d 900, and "unless the intent of the ordinance is clearly to be found in the language used, its provisions should not be extended by implication (citing cases)" Salem Trader Restaurants, Inc. v. Reitfort, 63 Misc. 2d 753, 755 (N.Y. Sup. Ct. 1970). No evidence was adduced before the ZBA to bring petitioners' proposed construction within the specific definitions enunciated in Zoning Ordinance, § 89-45A; rather, the only evidence on this point is the affidavit of March 27, 1979 of one Nicolaysen, a professional engineer and neighbor of petitioners, wherein the clearly gives his professional opinion that the proposed construction does not fall within the ordinance (Katz reply affidavit).

Petitioner contends, further, that the restriction that the "feature" placed on a roof shall not exceed 10 percent of the area of the roof on which located has been misapplied in this instance. Petitioners' roof is made up of eight separate and principle sections and the proposed solar panels are to be located on oneof such sections. The ZBA has determined that the ordinance meaning restricts the feature to no more than 10 percent of the supporting roof — that roof physically supporting the panels. It is felt by this court an so held that such an interpretation by the ZBA is unrealistic and in violation of the specific words of the ordinance which refers merely to "the area of the roof on which . . . located" and not to the "supporting" roof.

Even if § 89-45A were applicable to petitioners' proposed construction, this court finds and so holds that petitioners have shown practical difficulty sufficient to justify an area variance (Matter of Wilcox v. ZBA of the City of Yonkers, 17 N.Y.2d 249, 254 (N.Y. Ct. App. 1966)). Concededly, "practical difficulties are something less than unnecessary hardship." (2 ANDERSON, N.Y. ZONING 2d, § 18.33.) For consideration in the determination of practical difficulties are the following criteria, as enunciated in Wachsberger v. Michalis, 19 Misc. 2d 909 (N.Y. Sup. Ct. 1959):

1. How substantial the variance is in relation to the requirement;

2. The effect, if the variance is allowed, of the increased population density thus produced or availale governmental facilities;

3. Whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created;

4. Whether the difficulty can be obviated by some feasible method other than a variance;

5. Whether in view of the manner in which the difficulty arose and in consideration of all the above factors the interests of justice will be served by allowing the variance. (See: 2 ANDERSON, N.Y. ZONING 2d, § 18.33.)

It is clear, at least to this court, that in the application of the above criteria, petitioners would be entitled to a variance if, indeed, such is necessary in view of the foregoing.

Of even greater import, in this day of what for better expression may be termed the energy crunch, the purposes of restrictive zoning must, to some extent, give way to declared policy of governments to conserve energy in all ways possible yet consistent with environmental standards.

Zoning regulations must be enacted by those to whom such responsibility is assigned in a manner consistent with the promotion of "health and general welfare" and with "reasonable consideration, among other things, as to the character of the district . . . and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality" (Town Law, § 263).

In the accomplishment of the above, it is incumbent upon the zoning agency to adopt an attitude other than an ostrich head-in-the-sand approach, especially when adoption to changing scientific advances follows and complies with national and state interests in energy conservation. It has been said that "our increasing dependence on foreign energy supplies presents, a serious threat to the national security of the United States and to the health, safety and welfare of its citizens" (Department of Energy Organization Act of 1977, 12 U.S.C. § 7111(2)) and that, further, "the mass production and use of equipment utilizing solar energy will . . . promote the national defense. (Solar Energy Research Development and Demonstration Act of 1974, 42 U.S.C. § 5511(a)(7) (1977).) See also: Solar Heating and Cooling Demonstration Act of 1974, 42 U.S.C. § 5501.

In keeping with and in furtherance of this declared public policy, the United States government in its Energy Tax Act of 1978 (§ 101, 92 Stat. 3174, et seq., 26 U.S.C. § 1) has provided a monetary incentive for domestic solar hot water systems for private dwellings which has been followed by similar state expression of public policy and monetary tax relief. (N.Y. State Energy Law, L. 1976, ch. 819.) This latter law (§ 3-105(2)) imposes upon municipalities the duty to review their rules and regulations and to not only make them consistent with the state declared policy for energy conservation but, where inconsistent, to make necessary changes to comply with the Act's stated purposes.

Parenthetically, it must be noted that § 89-45A of respondents' zoning ordinance has been amended, as of February 21, 1979, to except the 10 percent area limitation and provide for [9 ELR 20426] applications for energy conservation devices to be made, not as requests for variances but for special use permits to be granted by the Town Board and not the ZBA.

It is felt by this court and so held that this post application amendment cannot serve to deny the instant application.

Finally, it is the holding of this court that respondents' closed session determinations are violative of applicable statutory law and decisions.

The ZBA is governed by the Town Law and the latter states, in § 267(1) that: "All meetings of such board shall be open to the public."

The Open Meetings Law (Pub. Off. Law Article 7) states, in § 98(a) that: "(a) Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section ninety-five of this article."

Section 100 thereof specifies the conduct of executive sessions and requires, prior thereto, a "majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered." It further limits executive sessions only for enumerated purposes ((a) through (h)) none of which are applicable to the instant case. Also, no majority vote of the total membership appears to have been taken for an executive session, in the first instance.

The exceptions section of Public Officers Law, § 103 which eliminates from the provisions of the Article "judicial or quasi judicial proceedings . . ." does not serve to exonerate the ZBA from the salutary provisions of the Open Meetings Law. (See letter of February 23, 1979 from the Committee on Public Access to Records, Katz Reply Affidavit, sworn to on March 28, 1979, Exhibit 2.) This interdiction is further advanced by Opinions of the Attorney General, 77-259 which discusses the provisions of the Open Meetings Law and Town Law, § 267(1) and concludes that Town Law § 267(1) is not superseded by Public Officers Law, Article 7 and since Town Law § 267 "does not provide for executive sessions or informal private meetings by the members of a zoning board of appeals . . . all meetings of a zoning board of appeals must be open to the public."

In view of the foregoing, this court finds as a matter of law that the actions of the ZBA in refusing to grant the variance sought were arbitrary and capricious and in violation of law and accordingly, the said board is directed to forthwith issue the building permit sought, and petitioners' application therefore is granted, without costs, disbursements, or counsel fees.

Submit judgment on notice.