| Matter of Gjerlow v Graap |
| 2007 NY Slip Op 06993 [43 AD3d 1165] |
| September 25, 2007 |
| Appellate Division, Second Department |
| In the Matter of Nancy Gjerlow et al.,Respondents-Appellants, v Robert J. Graap, Respondent, and Leonardo LeBrun et al.,Appellants-Respondents. (Proceeding No. 1.) In the Matter of Leonardo LeBrun et al.,Appellants-Respondents, v Zoning Board of Appeals of Town of Bedford et al., Respondents.(Proceeding No. 2.) |
—[*1] Thacher Proffitt & Wood LLP, White Plains, N.Y. (Kevin J. Plunkett of counsel), forrespondents-appellants. Keane & Beane, P.C., White Plains, N.Y. (Joel H. Sachs of counsel), forrespondents.
In related proceedings, which were joined for disposition, pursuant to CPLR article 78, interalia, to review a determination of the Zoning Board of Appeals of the Town of Bedford datedFebruary 9, 2005, which, after a hearing, in effect, vacated a determination of Robert J. Graap, inhis capacity as Code Enforcement Officer of the Town of Bedford, dated June 16, 2004, directingNancy Gjerlow and Robert Gjerlow to apply for a building permit within 90 days to construct amain dwelling on certain real property owned by them, and instead determined that NancyGjerlow and [*2]Robert Gjerlow shall be permitted to continue toreside on the real property in an accessory dwelling without applying for a building permit toconstruct a main dwelling, and that any successor owner shall have a period of two years to applyfor and receive a building permit to construct a main dwelling and thereafter diligently pursuesuch construction to completion, Leonardo LeBrun and Lara LeBrun appeal, as limited by theirbrief, from so much of a judgment of the Supreme Court, Westchester County (Lefkowitz, J.),dated October 24, 2005, as, upon so much of an order of the same court dated September 30,2005, as denied the petition in proceeding No. 2, dismissed that proceeding, and Nancy Gjerlowand Robert Gjerlow cross-appeal from so much of the same judgment as, upon so much of theorder as denied the petition in proceeding No. 1, dismissed that proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof denyingthose branches of the petition of Leonardo LeBrun and Lara LeBrun in proceeding No. 2 whichwere to annul so much of the determination dated February 9, 2005 as determined that NancyGjerlow and Robert Gjerlow shall be permitted to continue to reside on the real property in anaccessory dwelling without applying for a building permit to construct a main dwelling and thatany successor owner shall have a period of two years to apply for and receive a building permit toconstruct a main dwelling and thereafter diligently pursue such construction to completion, anddismissing that proceeding, and substituting therefor a provision granting those branches of thepetition of Leonardo LeBrun and Lara LeBrun in proceeding No. 2 and annulling those portionsof the determination dated February 9, 2005; as so modified, the judgment is affirmed insofar asappealed and cross-appealed from, without costs or disbursements, the order dated September 30,2005 is modified accordingly, and the matter is remitted to the Zoning Board of Appeals of theTown of Bedford for further proceedings consistent herewith.
In 1980 Nancy Gjerlow and Robert Gjerlow purchased a 17.756-acre horse farm located inan area within the Town of Bedford that is zoned for single-family residences on minimumfour-acre lots. The zoning ordinance defines a "cottage" as a "dwelling unit within an accessorybuilding which is incidental and subordinate to a principal one-family residence . . .where either unit is occupied by the owner of the premises" (Town of Bedford Code §125-3).
The Gjerlows applied for a variance permitting them to build a "cottage," which they wouldlive in prior to and while building a main residence, and the Zoning Board of Appeals of theTown of Bedford (hereinafter the ZBA) adopted a resolution granting them a variance "to permitconstruction of a 1711 square foot caretaker's cottage prior to construction of the main building"(hereinafter the 1982 variance). The 1982 variance did not set any period of time within whichthe property owners were required to construct the main building. The Gjerlows built the"cottage" and have resided there to the present, without ever having built a main residence.
In 2003 Leonardo LeBrun and Lara LeBrun acquired the 20-acre property adjoining theGjerlow property, and thereafter complained to the Building Inspector of the Town of Bedfordthat the Gjerlows had not complied with the 1982 variance and were illegally continuing to livein the cottage located within 17 feet of their property. Robert J. Graap, in his capacity as CodeEnforcement Officer of the Town of Bedford, determined that the Gjerlows were in violation ofthe 1982 variance because they resided in the cottage since its construction without building amain dwelling. The Code Enforcement Officer therefore directed the Gjerlows to apply for abuilding permit to construct a main dwelling within 90 days, and the Gjerlows appealed to theZBA. [*3]Following a hearing, the ZBA determined that the CodeEnforcement Officer had correctly interpreted the 1982 variance as requiring construction of amain dwelling within a reasonable period of time, a requirement the Gjerlows failed to meet.However, upon consideration of the particular facts and equities of the situation, the ZBA, ineffect, vacated so much of the Code Enforcement Officer's determination as directed theGjerlows to apply for a building permit within 90 days to construct a main dwelling, and insteaddetermined that the Gjerlows shall be permitted to continue to reside on their property in thecottage without applying to construct a main dwelling. However, the ZBA directed that when theGjerlows cease to own the property the successor owner shall have a period of two years to applyfor and receive a building permit to construct a main dwelling and diligently pursue suchconstruction to completion.
The Gjerlows commenced a CPLR article 78 proceeding to review the ZBA's determination,contending that the 1982 variance did not require a main residence to be built at all. The LeBrunscommenced a separate article 78 proceeding to review the ZBA's determination, contending, interalia, that the ZBA abused its discretion in permitting the Gjerlows to reside on their property in acottage without being obligated to apply for a building permit and construct a main dwelling. TheLeBruns were granted leave to intervene in the Gjerlow proceeding, and the two proceedingswere joined for disposition. The Supreme Court denied both petitions and dismissed theproceedings. The LeBruns appeal and the Gjerlows cross-appeal from the judgment.
Judicial review of administrative agency determinations is limited to whether the actiontaken by the agency was illegal, arbitrary and capricious, or an abuse of discretion (see Matterof Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771[2005]). Further, "a zoning board's interpretation of its zoning ordinance is entitled to greatdeference, and will not be overturned by a court unless unreasonable or irrational" (Matter of Ferraris v Zoning Bd. of Appealsof Vil. of Southampton, 7 AD3d 710, 711 [2004]; see Matter of Toys "R" Us vSilva, 89 NY2d 411, 418-419 [1996]).
Contrary to the Gjerlows' contention, the Code Enforcement Officer and the ZBA rationallyinterpreted the 1982 variance as granting the Gjerlows exactly what they requested, which waspermission to construct an accessory building prior to constructing a main dwelling. In effect, acondition of the 1982 variance was that the Gjerlows were required to build a main dwelling onthe property. The Gjerlows did not request and were not granted a variance permitting them toconstruct only an accessory building with an open-ended option to construct a main dwelling.Although the 1982 variance did not specify a time for compliance with the condition that a maindwelling be built, it is a "well-recognized principle of law that where no time for action isspecified, the law will imply a reasonable time" (Village of Sands Point v Sands PointCountry Day School, 2 Misc 2d 885, 888 [1955], affd 2 AD2d 769 [1956]; seeMatter of Rebhan v Zoning Bd. of Appeals of Town of Milan, 163 AD2d 728, 730 [1990];Mocca Lounge v Misak, 94 AD2d 761 [1983]).
In this respect, the ZBA also rationally determined that under all of the circumstances, it wasunreasonable for the Code Enforcement Officer to direct the Gjerlows to apply for a buildingpermit to constuct a main dwelling within 90 days. However, the ZBA acted arbitrarily andcapriciously in permitting the Gjerlows to have an open-ended exemption from constructing amain dwelling while directing that any successor owner comply with such condition within twoyears of the property's transfer. Such a determination violates the "fundamental rule that zoningdeals basically with land use and not with the person who owns or occupies it" (Village ofValatie v Smith, 83 NY2d 396, 403 [1994] [internal quotation marks omitted]; Matter ofSt. Onge v Donovan, 71 NY2d 507, 511 [1988]; see Matter of Holthaus v [*4]Zoning Bd. of Appeals of Town of Kent, 209 AD2d 698, 699[1994]). Regardless of who owns the subject property, enforcement of the 1982 variance requiresthat an application for a building permit and construction of a main dwelling take place within areasonable period of time. Accordingly, the Supreme Court should have granted those branchesof the LeBruns' petition which were to annul so much of the ZBA's determination as permittedthe Gjerlows to continue to reside on the property without applying for a building permit toconstruct a main dwelling and directed that any successor owner shall make such application anddiligently pursue such construction to completion within two years of the property's transfer. Wetherefore modify the judgment accordingly and remit the proceeding to the ZBA to fix areasonable time for compliance with the condition of the 1982 variance that a main dwelling beconstructed on the subject property. Crane, J.P., Skelos, Covello and Dickerson, JJ., concur.