HISTORIC APPELLATE DECISION in FIRE ISLAND
ZONING BOARD CASE
In a landmark decision last week four Appellate Court Judges sitting in Brooklyn ruled in favor of Long Island's environment and the future preservation of the landscape of Fire Island National Seashore.
The case involved the Town of Brookhaven Zoning Board's approval of building variances for a Fire Island resident which were granted even though they violated federal and town codes and were opposed by the Town DEP, the Fire Island National Seashore and environmental groups as well as his next door neighbors who filed an Article 78, (originally as pro se litigants) objecting to the variances.
In the Decision and Order of the Court, the Justices called the Board's decision “arbitrary and capricious and an abuse of power”. “The Board failed to engage in the requisite balancing test” the Court wrote, adding that the Brookhaven Town Zoning Board “disregarded evidence that granting the variances would have an adverse impact upon the physical and environmental conditions in the neighborhood, which is part of the Fire Island National Seashore.” The Judges also decided the changes were self-created hardships, that the Board didn’t give any weight to the consequences of granting these variances and the Court told Mr. Lewis in their decision he could “…fully enjoy the property without building an addition to the residence or building additional decks and fences.”
Matthew Atkinson, the successful attorney in the case said "From now on people seeking variances on Fire Island National Seashore are going to have to have a reason beyond personal greed to get them passed."
Richard Scheyer, the Chairman of the Islip Town Zoning Board (Scheyer and Jellenik, Nesconset) and the counsel of record for Mr. Edward S. Lewis the respondent in this Brookhaven case, had actually warned the Appellate Court Judges during his oral argument on October 15, of the “far reaching ramifications for zoning boards all across Long Island” if they ruled to overturn the lower court decision.
In what proved to be a prophetic statement of the magnitude of the win for his opponents,
Mr. Scheyer, one of the losing attorneys told the Court, “It’s going to have a massive impact on zoning boards all across Long Island. It will change the entire landscape.”
Mr. Scheyer, one of the losing attorneys told the Court, “It’s going to have a massive impact on zoning boards all across Long Island. It will change the entire landscape.”
The Judges ruled against his client, Mr. Lewis and in favor of Meg Switzgable and her husband Thomas Brown, who brought the Article 78 to the 2nd Department against the Town of Brookhaven Board of Zoning Appeals, The Town of Brookhaven and Mr. Edward S. Lewis, their next door neighbor on Fire Island Pines.
They learned on Friday they were successful and the lower court decision to allow seven variances was overturned.
They learned on Friday they were successful and the lower court decision to allow seven variances was overturned.
Matthew Atkinson, (Atkinson and Heffron/Jackson Heights) the Switzgable/Brown attorney, told the Appellate Court in his oral presentation that the State’s balancing test was ignored. Lewis and the Town had argued that the federal zoning standards for the Seashore are not compulsory. The Petitioners argued that Town Law compels the BZA to give weight to these standards when applying the mandated balancing test.
Federal standards limit lot coverage to 35% (35% Rule) and the BZA should consider “the physical or environmental conditions in the [Seashore] and they must also consider the detriment to the community."
Mr. Atkinson pointed out to the Court.
The Court agreed with Mr. Atkinson that the Zoning Boards’ decision granting eight variances to Mr. Lewis may indeed have been arbitrary and capricious and did not appear to strike a balance between the interests of the community and Mr. Lewis’ requests which the Plaintiff’s argued were well in excess of the 35% allowable. The original variance request by Mr. Lewis was for lot coverage of 41.5%, according to court documents.
The Second Judicial Department Justices; William F. Mastro, J.P., Steven W. Fisher, John M. Leventhal and Ariel E. Belen, JJ. unanimously reversed the order granting Mr. Lewis the variances he had obtained from the Towns’ Zoning Board of Appeals. Mr. Lewis had originally requested what he called “minimum and total side variances” for: a one story residence addition, a new deck and an existing deck, stairs and a shed as well as a 10 ft’ high privacy fence and 5’ to 9.7’ high fencing forward of principal structure. He also wanted permission for 41.5 % lot occupancy.
Representatives from the Department of Interior, Fire Island National Seashore (FINS) and local environmental groups were supportive of the Switzgable/Brown Article 78 Motion to reverse the Town of Brookhaven Zoning Boards' approval of the Lewis variance requests.
“The earth is in my blood”, announced Ms. Switzgable who grew up on Fire Island and may just have protecting Fire Island- in her DNA. Her mom, Yota Switzgable, was part of a group of ladies in the 1960’s who fought Robert Moses’ plan to build a road through all of the Islands. Thanks to their grassroots movement back then, to this day no cars are allowed on Fire Island and the proposed road stops at his namesake; the Robert Moses Causeway Bridge.
After several public hearings during which both opposition and pro opinions were added to the record, on April 1, 2009, Mr. Lewis was unanimously granted all variances he requested for changes on his property located on Fire Island Pines.
FINS and ABCO defend FIRE ISLAND
In June, 2009 Karl Christopher Soller, the Superintendent for the National Park Service under the United States Department of the Interior, wrote to State Supreme Court Justice, Honorable Peter H. Mayer, regarding the Switzgable vs. the Zoning Board of Appeals case (Index # 09 19095):
When Public Law 88-587, the enabling legislation for Fire Island National Seashore (FINS) was passed on September 11, 1964, the intent of Congress was to allow the 17 communities on Fire Island to continue in such a manner that supports the purpose of the Act that enabled the “Seashore”. Per that Act, Congress established the Fire Island National Seashore “for the purposes of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes and other natural features within Suffolk County, New York, which possesses high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population…”
They also provide for “the protection of the Seashore’s resources through local zoning limitations on use, location and size of structures on public and private property.”
Additionally, in Section 3 of this law; “the Secretary [of the interior] shall issue regulations, which may be amended from time to time, specifying standards that are consistent with the purposes of this Act for zoning ordinances which must meet his approval.”The communities on Fire Island have a maximum lot occupancy development of 35% of the lot area, which applies to all four zoning authorities with jurisdiction of the Seashore on Fire Island, including the Town of Brookhaven.
On June 1, 2009 Paul DeChance, Chairman of the Board of Zoning Appeals for the Town of Brookhaven released the Board's “Findings and Conclusions" in the Lewis case:
That the relief requested will not create an undesirable change in the nature and character of the neighborhood or detriment to nearby properties to require denial of the subject application.
That the benefit sought by the applicant cannot be achieved by method, feasible for the applicant to pursue, other than an area variance.
That the requested variances are not substantial in nature.
That the requested variance will not have an adverse effect on the impact on the physical or environmental conditions in the neighborhood.
While the hardship appears self-created, the Board concludes that such determination is insufficient to warrant a denial of the requested relief.”
Mr. Brown added, “These findings contained information that was not discussed at any of the public hearings.”
On June 4, 2010 K. Christopher Soller, (FINS) wrote to John L. Turner (Director of the Town of Brookhaven, DEP) regarding the Lewis Wetlands Permit, outlining findings by FINS:
The property in question appears to have been developed without any permits over a number of years, resulting in aggregate development that is inconsistent with both the Town of Brookhaven Zoning Codes and the Federal Zoning Codes for Fire Island National Seashore. The property as currently developed has a 41.5% lot occupancy, Federal and Town regulations limit lot occupancy to 35%. Additionally the development did not comply with Town’s regulations regarding setbacks and fence heights. As a result, the applicant had to apply for variances undertaken without appropriate permits from Brookhaven’s Board of Zoning Appeals (BZA). Although the BZA granted the variances for all but the fence along the side yard of the property, the Seashore continues to object to this overdevelopment.”
This was not totally accurate as the Zoning Board had granted all of the variances and it was Supreme Court Justice Mayer who upheld all the variances, except the 10 ft. fence.
Mr. Soller focused on the fact that safety requires setbacks- which are intended as buffers for fires- a critical issue due to the common type of construction on Fire Island (wooden frame structures elevated on pilings), according to him.
Calling the property “subject to condemnation” by the authority of the Secretary of the Interior and citing chapter and verse of Town Codes he was concerned because the BZA are consistently ignoring, Mr. Soller finished by saying “According to Town Code Chapter 20, Article VIII…the DEP is “to be responsible for complying with all federal, state and county laws, rules and regulations pertaining to the environment and to be responsible for ensuring such compliance by other parties.”
Ms. Switzgable and Mr. Brown wanted to express their sincere gratitude to Ms. MaryAnn Johnston President of the Affiliated Brookhaven Civic Organization (ABCO) for all her help. “Her inspiration, education and humor kept us going along the way. With her help and support our win was possible.”
With regard to the Decision she said, "This is new law. Now the Town is compelled to order the removal of non-permitted structures.”
Ms. Johnston was involved in the case all along the way, according to Ms. Switzgable and Mr. Brown.
Ms. Johnston, wrote a letter to Mr. Turner, (DEP) asking the Town to deny the Lewis application for a Wetlands and Waterway Permit for his property.
It is without regard for the existing Code, rules, regulations character of the community, neighbor rights or the fragile eco-system of the wetland seashore and its’ critical environment…not one summons or fine has been issued or paid for any of the numerous transgressions all clearly visible on the parcel…Among all our concerns are fire safety, habitat protection, wetland degradation and blatant disregard of the Federal and Town rules which clearly do not permit such abuse.” (June 4, 2010)
Ms. Johnston also decried the fact that Mr. Lewis appeared impervious to the rules and was apparently treated differently than other property owners with what she called “less obnoxious violations.”
Mr. Turner also received a letter from Senator Brian Foley (3rd District) requesting that the DEP reject the 606A Shorewalk Wetland Applications for the Lewis property:
It has been brought to my attention that federal rules intended to protect Fire Island may have been violated by the local Zoning Advisory Board in granting some recent variances. Allegedly the Fire Island National Seashore was not notified by Brookhaven, as required by law, and they were thus unable to register their objections.
There are Town statutes unique for the Seashore district. They are intended to work in cooperation with the federal rules to limit overdevelopment and protect the Seashore. Realizing that variances are dependent upon the approval of a Wetlands Application, I ask you closely examine this particular application, and if you find that federal rules were violated, I believe it is within your authority and duty to reject this application.(July 1, 2010)
At the oral arguments in Appellate Court both the Town Attorney, Mr. James J. Kevans and Mr. Lewis’ attorney, Mr. Scheyer, argued that these variances were common practice and not just favoritism for Mr. Lewis.
Mr. Scheyer had argued that letters from the Seashore all claiming that the granting of the variances was deleterious to the environment were “commonplace” and brushed them off saying they were irrelevant. “They always say that. I have hundreds of those letters.”
Strangely, Mr. Scheyer made the case for Ms. Switgable and Mr. Brown as he insisted “The environmentalists in their Amicus Brief say the Board failed to give compelling weight to the occupancy limitations of the Federal Law. Well that is not a compelling argument because they don’t have to. I personally have written hundreds of decisions with regard to National Seashore’s objections and local government. If you take their position, you can’t do anything.”
The Court then asked, “Should I just disregard that? What is their function then?”
Mr. Scheyer answered, “Advisory.”
Mr. Scheyer was forced to capitulate saying “They do have the power to condemn.”
The Court countered, “So how is that consistent with your opinion that it is advisory?”
Scheyer conceded it was more than advisory but added that he had never known of any instance where they had condemned a property that wasn’t a vacant lot.
Ms. Switzgable and Mr. Brown said, “That is the point. The BZA has been consistently flouting Federal and Town regulations to the degree that the Federal regulations have been ignored for years by them in granting these variances for building on more than 35% of the lots.”
This was confirmed by a 40 year study conducted by FINS called the “Kaufman Report”.
CONFLICT FOR CHAIRMAN DECHANCE?
In documents and in oral arguments heard in Brooklyn the Judges discussed whether there was a true conflict of interest when Mr. DeChance, the Chairman of the Zoning Board did not recuse himself even though he continued to personally employ Mr. Thomas Cramer (Cramer Consulting/Miller Place). Mr. Cramer was an expeditor hired by Mr. Lewis and Chairman DeChance had also hired Mr. Cramer as an expediter for a case of his own. He continued to employ Mr. Cramer for as long as two hearings into the Lewis case documents show.
The Court noted Mr. DeChance recognized Mr. Cramer as an “expert witness” for Mr. Lewis and never recused himself or left the room during deliberations and actually voted, something the Appellate Court noted was “curious” since he had consistently recused himself in the past when Mr. Cramer was before him.
Mr. Scheyer insisted there wasn’t a conflict when asked by the Court, “So doesn’t that leave a bad appearance of impropriety, since he had always recused himself before?’
Two hearings into the case, and Mr. DeChance had already appointed Mr. Cramer as an expert witness, he also deliberated and voted on the matter, one Justice remarked "We have a two year rule with regard to things like this.”
Mr. Scheyer argued that because the vote was unanimous, even if Mr. DeChance had recused himself it would have passed anyway.
Mr. Atkinson disagreed with that assessment in his final argument, saying there was no way to know if and how a recusal could have affected things.
Mr. Kevins, the Assistant Town Attorney who told the Appellate Court he was counsel to the Town’s Ethics Board was also grilled about the DeChance conflict when he stepped up to the podium. The Court noted that Mr. Lewis was on the Pines Zoning Advisory Board and asked Mr. Kevins if he thought Mr. DeChance should have recused himself.
Earlier, Mr. Scheyer had alluded to the Court that Chairman DeChance had gotten an ethics opinion that said it was ok for him to stay on and vote.
Questioned by the Court if one actually existed, Mr. Kevins said he knew of no such opinion, but when pressed to make a decision as to whether he felt it was a conflict, Mr. Kevins voiced softened to a whisper, so low the Judge had to repeat his answer, “That he did not have to recuse himself.” in his opinion.
To which the Justice replied, “Even though he always recused himself in the past?…Isn’t it curious when he doesn’t recuse himself in this one?…You can see why we’re concerned, when he doesn’t recuse himself on this one and Mr. Lewis is on a Board as well.” (Pine Island Zoning Advisory Board).
THE CHARACTER OF THE NEIGHBORHOOD
Mr. Scheyer had argued and the Zoning Board had agreed the variances Mr. Lewis requested made no change to the character of the neighborhood.
When the Court asked him “Weren’t these changes made after the code changes were enacted?”
“Not exactly”, Mr. Scheyer responded. To which the Judge interjected, “There’s a lot of not entirely, not exactly, not all in your argument.”
Not phased by the rebuke, Mr. Scheyer uttered the words that again seemed to make the case for the other side, “These properties were modified many times since they were originally built.”
The Court asked about the code changes that had taken effect to which Mr. Scheyer replied, “The Board is aware of all those changes, this is something they are particularly familiar with, something they do all the time, they handle hundreds of cases on Fire Island.”
The real issue for him was to make sure that FINS would not be the controlling statutory body that controls land use and zoning on Fire Island. “The 1964 law that gave that power to the local municipalities” Scheyer insisted "Most of the zoning boards don’t follow it. Almost none of them do.”
Mr. Kevins, assistant Town Attorney, for the Town of Brookhaven BZA, argued U.S. Department of Interior Laws don’t transcend Town Code. Kevins agreed some of the FINS Rules have been adopted by the Town; including the 35% lot occupancy and the 28 ft. height requirement rule have been adopted.
In adopting the federal regulations the Town made the definition of a structure to be anything constructed or erected in or on the land. In other words if God didn’t put it there it is a structure.
Differences between the standards for the Town zoning codes and FINS are the issue, Scheyer tried to convince the Court.
“For example, the Town would not count the pond and slates on the ground as structures.” Mr. Scheyer told the Court. He also insisted the pond was not man made and therefore not a structure, yet Mr. Brown pointed out that an article in the Fire Island News about Ken Ruzicka, the president of Ruzicka Design, says he is the man behind dozens of ponds in the Pines, “including that of Ed Lewis and Glen Wieglus at their bay front home.”
AND THE SURVEY SAYS… THE HOUSE and DECK
ARE DISAPPEARING?
Ms. Switzgable and Mr. Brown insisted that Mr. Lewis built for eight years without permits, the hardships were self-created and added that the survey of his property was found to be inaccurate more than once.
The Court agreed with their assessments when they wrote, “In light of the fact that Mr. Lewis was a member of the Pines Zoning Advisory Committee and did not deny that he built illegally on his property with complete disregard for the zoning laws, his hardship was self-created and supported denial of the variances.”
The Court declined to address the issue of inaccurate surveys submitted by Mr. Lewis and documented in the record.
Ms. Switzgable and Mr. Brown had asked why 246 square feet disappeared from one survey to another. In the survey dated August 8, 2007 labeled “the house and decks as currently calculated" equaled 5,518 S.F.
In the survey labeled “BZA--January 27, 2009 the “house and decks as currently calculated” equaled 5,272 S.F.
In the survey labeled “BZA--January 27, 2009 the “house and decks as currently calculated” equaled 5,272 S.F.
John McGoldrick of the Office of Professional Discipline, which handles 48 licensed professions, including issues with licensed surveyors was notified of this and other discrepancies in the survey by Switzgable/Brown. Mr. McGoldrick said "Under Education Law they are confidential until a disposition is made and results are published. If the case is closed without action, it will remain confidential."
Ms. Switzgable and Mr. Brown had also argued that the BZA failed to give weight to the “self-created hardship” factor which they contend “must be accorded some weight within the Seashore, such that wholly non-necessary variances are not granted solely for private gain at the expense of a protected National Seashore. “
The findings of the Court were that for Mr. Lewis this was a self-created hardship even though Mr. Cramer, had testified as the expert witness, accepted earlier by Mr. DeChance that it was not a self-created hardship. The Town argued that the BZA has discretion in these matters. Ms. Switzgable and Mr. Brown said while that may be true, that it should be balanced against the ecological harm that ignoring the 35% Rule could do to Fire Island. The Court agreed.
Ms. Switzgable and Mr. Brown learned the hard way they claim that expert witness testimony trumps generalized community opposition almost all the time. The BZA argued that they only needed to consider “what’s on the ground”.
The only variance the Supreme Court denied was the 10 ft. fence that Mr. Lewis had requested to build using another fence he had built on his property (also without permits) as his example of an “on the ground” similar structure in the area. “It would be contrary to public policy to allow Lewis to use his illegal wall as the basis to define the character of the neighborhood so he could erect more walls.” according to Mr. Atkinson, the Switzgable/Brown attorney.
Ms. Johnston asked, "In these tough fiscal times I'd like to know how much the Town spent to defend this 10 ft fence for a private individual? Why wouldn't they let him spend his own money to appeal?"
An “Amicus Brief” or (Friend of the Court) was submitted by several environmental groups including the Citizens Campaign for the Environment, the Peconic Baykeeper, Group for the East End and the Seatuck Environmental Association in support of the Article 78 motion.
Karl Christopher Soller wrote on behalf of the Department of the Interior, the National Park Service and in his capacity as the Superintendent of the Fire Island National Seashore in support of the Amicus Brief:
(No reason was given as to why the Amicus Brief was not accepted by the Court)
“I was personally involved in writing the federal zoning regulations for Fire Island National Seashore and believe the Federal regulations and the subsequently adopted Town rules intended to protect Fire Island are regularly overridden by the local zoning board of appeals even when the National Park Service has filed an objection to a variance application. We agree the cumulative effect of the continuous granting of variances by the local zoning authorities in opposition to the Federal regulations and subsequently adopted Town ordinances is having a detrimental impact on the environmental quality of Fire Island and a detrimental impact on the character of Fire Island’s communities which the Federal regulations and subsequently the adopted Town ordinances were designed to protect.”
Mr. Soller added that Federal regulations requiring the local zoning authority to notify the Fire Island National Seashore of all variance applications on Fire Island, were not followed. In this instance FINS had no record of notification, according to Mr. Soller.
Mr. Kevins agreed with Mr. Scheyer in admitting that it had been the Zoning Boards’ practice over the last six years not to send the actual zoning applications to FINS as required by law, but instead they sent a calendar of dates of zoning board meetings and names and addresses of anyone requesting variances.
Ms. Switzgable and Mr. Brown said the Board sends so much information it is difficult to wade through to find what is an issue for FINS. Mr. Kevins said no one had complained about the process until now.
Prompting the Judge to ask why it would take someone complaining for them to follow the law.
The question still remains if the Town will compel Mr. Lewis to remove all the things he did not deny he built illegally, without permits, for the eight years prior to this case.
Calls for comments on the story were made to Mr. Kevins, Mr. Cramer, Mr Scheyer and the Town of Brookhaven.
No one desired to comment to date.
