For a judgment pursuant to Article 78 of the Civil Practice Law an Rules.Relief Requested The petitioner seeks an order vacating and annulling the decision of the respondent, North Hempstead Board of Zoning Appeals (hereinafter referred to as “BZA”), which granted the application of respondent Northwell Health and issued a negative determination regarding environmental impacts of the subject project (hereinafter referred to as “Northwell”). The petitioner additionally seeks an order granting leave to amend its petition (Motion Sequence No. 2). The respondent submits a memorandum of law in opposition to the petition and to petitioner’s motion to amend. The petitioner submits a reply affirmation.BackgroundThe determination being challenged here, dated December 28, 2018, granted Northwell’s application for variances in order to build an addition to its existing hospital as use for an Advanced Surgical Pavillion (hereinafter referred to as “ASP”). The petitioner claims various violations of the State Environmental Quality Review Act (hereinafter referred to as “SEQRA”) review process and that the BZA failed to properly assess Northwell’s application.Initially, the Town of North Hempstead’s Department of Building Safety issued a notice of disapproval, denying Northwell’s application for the proposed ASP on July 24, 2017. It then issued a revised notice of disapproval on June 18, 2018, due to issues concerning height, setbacks, parking, and landscaping. Northwell Health thereafter appealed to the BZA.Pursuant to the BZA’s review, an Environmental Assessment Form was completed on October 31, 2016. Revised EAFs were completed on January 25, 2017, May 25, 2017, and June 1, 2018. Public hearings were held on October 11, 2017 and again on July 18, 2018 with regard to Northwell’s appeal.Following the July 18, 2018 public hearing, documents were provided to, and considered by, the BZA. These documents include a response to the petitioner’s testimony as well as letters and additional information regarding various topics including sewer availability, traffic, and sun shading devices. Further, the Town of North Hempstead Department of Planning & Environmental Protection requested “additional information in order to assist in formulating a Determination of Significance pursuant to the State Environmental Quality Review Act,” to which Northwell responded with detailed explanations.On November 28, 2018, the BZA issued a determination of significance, making a negative declaration that the project would result in no significant adverse impact on the environment, and therefore, an Environmental Impact Statement need not be prepared with regard to the subject project. The November 28, 2018 determination cited the June 1, 2018 Environmental Assessment Form and supporting documentation, as well as letters of availability from the Great Neck Water Pollution Control District and the Manhasset-Lakeville Water District.On December 28, 2018, the BZA issued an amended determination of significance which is the subject of the instant petition.Applicable LawThe instant proceeding challenges the determination of the BZA respondent. The determination of the BZA, an agency, is reviewed under the “arbitrary and capricious” standard of CPLR §7803(3) (see Matter of Sasso v. Osgood, 86 N.Y.2d 374). In applying this standard, a determination will not be disturbed unless the record shows that the agency’s action was “arbitrary, unreasonable, irrational or indicative of bad faith” (Matter of Cowan v. Kern, 41 N.Y.2d 591). “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts” (Matter of Pell v. Board of Education, 34 N.Y.2d 222). A determination of a zoning board will be sustained if it has a rational basis and is supported by substantial evidence (Efraim v. Trotta, 17 A.D.3d 463).“The Court of Appeals has held that a [BZA] performs a quasi-judicial function, and as such, all parties, including applicants and opponents alike, must be given the opportunity to present evidence or facts for [BZA] members to consider in rendering a determination” (Matter of 600 South Ocean Realty Corp. v. Fucillo, 2012 NY Slip Op 32099). Where evidence has been received under circumstances which would deny a party the opportunity to appraise or rebut it, the courts have expressed disapproval of the practice (see Matter of Stein v. Board of Appeals of Town of Islip, 100 A.D.2d 590; see also Cilla v. Mansi, 2002 NY Slip Op 50208[U]). Reliance on evidence received after the close of a hearing or on materials outside the record has resulted in the annulment of a municipal board’s action (Id.; see also Matter of Hampshire Management Co. v. Nadel, 241 A.D.2d 496).DiscussionAs a preliminary matter, the petitioner’s argument, in support of its motion to amend the petition (Motion Sequence No. 2), that the BZA was misled regarding the size of the proposed ASP by the square footage listed by Northwell is meritless. In the December 28, 2018 amended determination of significance, the BZA clearly attributes the square footage to the ASP, separately adding to the discussion that “a two level parking structure is also proposed as part of the building.” As square footage is typically applied only to the habitable space, and as the BZA additionally considered a variance regarding the height of the proposed project, it cannot be said that the BZA was in any way unaware of the proposed project’s dimensions.With regard to the petition (Motion Sequence No. 1), the BZA acknowledges that it accepted and relied upon documents which were submitted after the public hearing and not provided to the petitioner. Specifically, by requesting, inter alia, “additional information in order to assist in formulating a Determination of Significance pursuant to the State Environmental Quality Review Act,” the record is clear that the BZA improperly relied on such post-hearing submissions, which were substantial in nature rather than de minimis, in making its determination (Matter of Stein v. Board of Appeals of Town of Islip, supra; see also Cilla v. Mansi, supra). Accordingly, even if the public hearing had remained open, a contention which is not supported by the record here, fairness requires that petitioner be given the opportunity to rebut such evidence (see Matter of Hampshire Management Co. v. Nadel, supra; see also In Re An Article 78 Proceeding Capitol Real Estate v. Town Bd. of Charlton, 2003 NY Slip Op 51282[U]). Further, contrary to the respondents’ contentions, petitioner must be given the opportunity to present and rebut evidence even though petitioner was not the applicant in this matter, as petitioner’s standing has not been challenged (see Matter of 600 South Ocean Realty Corp. v. Fucillo, supra; see also Cilla v. Mansi, supra).In light of the foregoing, it is herebyORDERED that the petitioner’s motion for leave to amend is denied, and it is furtherORDERED that the petition is granted, and therefore, the determinations of the BZA dated November 28, 2018 and December 28, 2018 are hereby annulled, and this matter is hereby remanded to the BZA for proper consideration and determination, pursuant to a public hearing wherein petitioner is granted the proper opportunity to submit and rebut evidence upon which the board members can render a proper determination based upon the evidence, and it is furtherDated: June 17, 2019
