The Appellate Division Second Department recently ruled that, under the procedure followed by objecting neighbors, the local Zoning Board of Appeals (“ZBA”) lacked jurisdiction to rule on the neighbors’ objection. In Matter of Capetola v. Town of Riverhead, the Petitioners/Plaintiffs (“Petitioners”), who owned a property nearby the property in contention, had raised an issue as to whether the proposed development required a lot area variance, but had failed to follow the proper procedure for raising such an objection.
The owner of the property seeking a building permit, Edward Hocker, received a denial from the Town Building Inspector, indicating that Hocker needed four area variances in order to obtain a building permit. “At the public hearing concerning Hocker’s application, the petitioners…, who own a house close to the subject parcel, complained that, among other things, Hocker needed a lot size area variance to build on the subject parcel. After the hearing, the ZBA granted Hocker’s application for the four variances. The ZBA also determined that Hocker did not need a lot size area variance.”
Despite Petitioners’ objection at the hearing, claiming that a lot area variance was required, Petitioners had never directly appealed the determination of the building inspector, which determination did not include a finding of the need for a lot area variance.
The lower court denied the petition. On appeal, the Appellate Division reviewed the criteria for approving area variances and found that the ZBA had made adequate findings to support the granting of the four variances designated as required by the Building Inspector. As for the issue of Petitioners’ claim that a fifth variance for lot area was required, the Court found as follows:
“Contrary to the petitioners’ contention, any error by the ZBA in determining that Hocker did not require a lot size area variance, and any error in the Supreme Court confirming that determination, does not require remittal of this proceeding to the ZBA for a new determination. Unless otherwise provided for by local law or ordinance, a zoning board of appeals’ jurisdiction is appellate only, and in the absence of an administrative determination to review, a zoning board of appeals is without power to grant a variance or render a de novo determination with respect to an issue not determined by an administrative official (see Town Law § 267-a; Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 169 AD3d 995, 997-998; Matter of McDonald’s Corp. v Kern, 260 AD2d 578; Matter of Brenner v Sniado, 156 AD2d 559; Moriarty v Planning Bd. of Vil. of Sloatsburg, 119 AD2d 188, 196). Here, the only issues to be decided by the ZBA were with respect to the four variances sought by Hocker in his application to the ZBA, upon his appeal from the determination of the building inspector identifying those four requirements of the relevant building code (see Town Law § 267-b[a]). There was no determination of an administrative official regarding the need for a lot size area variance for the ZBA to review, and there was no appeal by the petitioners to the ZBA. Since the ZBA was without jurisdiction to decide the need for a lot size variance, any error by the ZBA in determining that issue does not require remittal of this matter to the ZBA for a new determination.”