| Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Patchogue |
| 2008 NY Slip Op 09601 [57 AD3d 546] |
| December 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Kim Kennedy, Appellant, v Zoning Board ofAppeals of Village of Patchogue et al., Respondents. |
—[*1] Ernest R. Maler, Jr., Patchogue, N.Y., for respondent Zoning Board of Appeals of Village ofPatchogue.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board ofAppeals of Village of Patchogue dated December 6, 2006, made after a hearing, that Chris Peppardcomplied with Village of Patchogue Zoning Code § 93-51 (A), the petitioner appeals from ajudgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 25, 2007, which deniedthe petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
On or about November 3, 2004 the respondent Chris Peppard (hereinafter Peppard) was granteda frontage variance by the respondent Zoning Board of Appeals of Village of Patchogue (hereinafter theZBA) in relation to his construction of a single-family dwelling. The ZBA directed Peppard to complywith Zoning Code of Village of Patchogue § 93-51 (A), which required the "improvement,construction or alteration" that was the subject of the variance to be "substantially commenced" withinone year after the variance was granted. On or about February 15, 2005 Peppard obtained site planapproval for the planned construction. Thereafter, Peppard applied, on or about March 10, 2005, for a"permit to construct a water supply and sewage disposal system." Peppard received a building permit inAugust 2005. He [*2]received renewals for the building permit expiringon January 25, 2007. Site clearing began in June of 2006.
On or about August 24, 2006 the petitioner, who was Peppard's neighbor, applied to the ZBArequesting, inter alia, that it stay all further issuances of permit renewals on the ground that the variancepreviously granted to Peppard had, in effect, expired because he did not comply with Zoning Code ofVillage of Patchogue § 93-51 (A) (hereinafter the zoning code provision). After a hearing, theZBA interpreted the zoning code provision to mean that, "at a minimum, an applicant must obtain aBuilding Permit within the one year period after it grants its approval in order to satisfy the 'substantiallycommenced' requirement." The ZBA determined that Peppard complied with the zoning code provisionbecause he obtained a building permit in August 2005, within one year after he was granted thefrontage variance on or about November 3, 2004. The petitioner commenced this proceeding to reviewthe ZBA's determination. The Supreme Court denied the petition and dismissed the proceeding. Thepetitioner appeals and we affirm.
Under a zoning ordinance which authorizes interpretation of its requirements by a board of appeals,such as Village of Patchogue Code § 93-47 (B), specific application of a term of the ordinanceto a particular property is governed by that body's interpretation, unless unreasonable or irrational(see Matter of Frishman v Schmidt, 61 NY2d 823, 825-826 [1984]; Matter of Conti v Zoning Bd. of Appeals of Vil.of Ardsley, 53 AD3d 545 [2008]). Additionally, "judicial review is generally limited toascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion" (Matter of Brancato v Zoning Bd. of Appeals ofCity of Yonkers, N.Y., 30 AD3d 515, 515 [2006]; see Matter of Falco Realty, Inc. v Town of Poughkeepsie Zoning Bd. of Appeals,40 AD3d 635 [2007]; Matter ofFerraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710 [2004]).
Here, the ZBA's interpretation of the zoning code provision was reasonable and rational, and theZBA's determination that Peppard complied with the zoning code provision was not illegal, arbitraryand capricious, or an abuse of discretion (see Matter of Falco Realty, Inc. v Town of PoughkeepsieZoning Bd. of Appeals, 40 AD3d at 635). Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.