                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    518831
________________________________

In the Matter of THE FUND FOR
   LAKE GEORGE, INC., et al.,
                    Petitioners,
      and

EVELYN JAEGER et al.,
                    Appellants,             MEMORANDUM AND ORDER
      v

TOWN OF QUEENSBURY ZONING BOARD
   OF APPEALS et al.,
                    Respondents.
________________________________


Calendar Date:   January 8, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


      Lavelle & Finn, LLP, Latham (Robert M. Cohen, Ballston
Lake, of counsel), for appellants.

      Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah
Everhart of counsel), for Town of Queensbury Zoning Board of
Appeals, respondent.

      Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls
(John D. Wright of counsel), for Steven Kitchen and another,
respondents.

                             __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (Muller, J.),
entered January 7, 2014 in Warren County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
                              -2-                518831

article 78, to, among other things, review a determination of
respondent Town of Queensbury Zoning Board of Appeals granting
the request of respondents Steven Kitchen and Jennifer Kitchen
for area variances.

      Respondents Steven Kitchen and Jennifer Kitchen own real
property near Lake George in the Town of Queensbury, Warren
County. To facilitate the construction of a residence on the
property, the Kitchens applied to respondent Town of Queensbury
Zoning Board of Appeals (hereinafter the ZBA) for area variances
requesting relief from requirements of the Code of the Town of
Queensbury regarding removal of vegetation and setback
requirements for stormwater infiltration devices. No variances
were necessary for the residence itself. After an extensive
public hearing conducted on numerous days over the course of
several months, and modifications of the application, the ZBA
granted the Kitchens' variance requests.

      During these administrative proceedings, petitioner David
M. Klein, a professional engineer who claimed to be representing
a number of neighbors opposed to the Kitchens' project, requested
determinations from the Town's zoning administrator on a number
of issues concerning the project. Dissatisfied with the zoning
administrator's interpretation of the Town Code, Klein appealed
to the ZBA, which dismissed the appeal for lack of standing.
Petitioners commenced this proceeding seeking review of the ZBA's
determinations to grant the area variances and of the dismissal
of Klein's appeal. Supreme Court dismissed the petition.
Petitioners appeal.1

      The ZBA did not err in finding that Klein lacked standing
to prosecute an administrative appeal. The Town Code permits
appeals by "any person aggrieved" by, among other things, the
zoning administrator's decisions (Code of the Town of Queensbury
§ 179-14-040 [C]). As the Town Code does not define the quoted


    1
        Although the notice of appeal was filed on behalf of all
petitioners, petitioners The Fund for Lake George, Inc. and Lake
George Waterkeeper have not filed a brief and are therefore not
parties to this appeal.
                              -3-                518831

phrase, it must be interpreted according to its plain meaning
(see Matter of Albany Basketball & Sports Corp. v City of Albany,
116 AD3d 1135, 1137-1138 [2014], lv denied 23 NY3d 907 [2014]).
This language seems to be taken directly from Town Law § 267-a
(4). This same phrase in that statute has been consistently
interpreted to mean a person who "has sustained special damage,
different in kind and degree from the community generally"
(Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town
of N. Hempstead, 69 NY2d 406, 413 [1987]; see Matter of
Association for a Better Long Is., Inc. v New York State Dept. of
Envtl. Conservation, 23 NY3d 1, 6 [2014]). Even without
establishing an injury in fact, a person is presumed to have
standing if he or she falls within the statute's zone of
interests and his or her property is sufficiently proximite to
the property at issue (see Matter of Sun-Brite Car Wash v Board
of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 413-414;
Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning
Appeals, 9 AD3d 651, 652 [2004]).

      The notice of appeal to the ZBA listed Klein's engineering
firm as the appellant and Klein as the appellant's agent. Klein
and his firm did not exhibit any specialized harm and do not own
property near the Kitchens' property. Thus, Klein does not have
standing in his individual capacity or as an agent for his firm.
Klein asserts that at the public hearings and in letters he
identified himself as appearing on behalf of neighbors. While
this is true, at no point up until the day before the hearing on
his appeal did he identify who his clients were. The other
petitioners involved in this appeal, who later claimed that Klein
was their agent, were not listed on the notice of appeal and did
not file a formal designation form naming him as their agent – as
the Town generally requires – prior to the expiration of the
statute of limitations for appealing an administrative
determination. Under the circumstances, the ZBA did not err in
finding that Klein was not a duly authorized agent of an
aggrieved party during the requisite limitations period for the
appeal and was not himself aggrieved, so he had no standing
(compare Matter of Madonia v Board of Zoning Appeals of Inc. Vil.
of Lindenhurst, 300 AD2d 588, 589 [2002], with Matter of Amodeo v
Town Bd. of Town of Marlborough, 249 AD2d 882, 884 [1998]).
                              -4-                518831

      The ZBA's decision to grant the area variances had a
rational basis. The statutorily prescribed balancing test for
area variances requires zoning boards of appeals to consider "the
benefit to the applicant if the variance is granted, as weighed
against the detriment to the health, safety and welfare of the
neighborhood or community by such grant" (Town Law § 267-b [3]
[b]). While the statute contains five factors that boards must
consider (see Town Law § 267-b [3] [b]), zoning boards have
discretion in deciding area variance applications and courts will
only disturb a board's decision if it is "illegal, arbitrary or
an abuse of discretion" (Matter of Ifrah v Utschig, 98 NY2d 304,
308 [2002]; accord Matter of Russo v City of Albany Zoning Bd.,
78 AD3d 1277, 1279 [2010]). The hearing minutes and resolution
itself show that the ZBA considered the five statutory factors,
even if the resolution failed to set forth specific factual
findings. Despite that failing in the resolution, we need not
annul the determination or remit the matter if the record,
including the ZBA's formal return in the CPLR article 78
proceeding, "demonstrates that the ZBA did make specific factual
findings supporting its determination" (Matter of Ohrenstein v
Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1043
[2007]; see Matter of Iwan v Zoning Bd. of Appeals of Town of
Amsterdam, 252 AD2d 913, 914 [1998]).

      The requested variances dealt with removal of vegetation
and setback and depth requirements for proposed stormwater
mitigation devices. Members of the ZBA acknowledged the
potential problems from clearing so much vegetation from the
property, but were impressed by the Kitchens' extensive efforts
to mitigate the impact by including stormwater mitigation
measures that do not exist on other neighboring properties.2
Although the evidence as to the statutory factors seems somewhat
evenly split, courts do not engage in their own balancing of the
factors, but must yield to the ZBA's discretion and weighing of
the evidence. Considering the various information presented at
the extensive hearing that was continued over the course of


    2
        The Town's stormwater mitigation regulations were
relatively new and did not exist when most of the neighboring
properties were developed.
                              -5-                  518831

several months, and giving due deference to the ZBA, the record
contains sufficient evidence to find that the ZBA's determination
to grant the area variances was rational and not arbitrary (see
Matter of Ohrenstein v Zoning Bd. of Appeals of Town of Canaan,
39 AD3d at 1043).

     Peters, P.J., Lahtinen and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
