| Matter of J & M Harriman Holding Corp. v Zoning Bd. of Appeals ofVil. of Harriman |
| 2009 NY Slip Op 03731 [62 AD3d 705] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of J & M Harriman Holding Corp.,Appellant, v Zoning Board of Appeals of Village of Harriman et al., Respondents, et al.,Respondent. |
—[*1] Lisa J. Felicissimo, Monroe, N.Y., for respondent-respondent Zoning Board of Appeals ofthe Village of Harriman. Fabricant Lipman & Frishberg, PLLC, Goshen, N.Y. (Alan S. Lipman of counsel), forrespondents-respondents Gregory Epsaro and Harriman Auto.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Village of Harriman dated August 2, 2006, which, after a hearing, upheld theissuance of a building permit by the Village Building Inspector to Harriman Auto, to install a48-foot-by-20-foot fence, the petitioner J&M Harriman Holding Corp., appeals from a judgmentof the Supreme Court, Orange County (Owen, J.), entered October 10, 2007, which dismissedthe proceeding based on lack of standing.
Ordered that the judgment is reversed, on the law, with costs, the petition is granted, thedetermination is annulled, and the application for a building permit to install a48-foot-by-20-foot fence is denied.
The Supreme Court found that the petitioner lacked standing to challenge the determinationof the Zoning Board of Appeals of the Village of Harriman (hereinafter ZBA) upholding theissuance of a building [*2]permit to install a fence for anautomobile holding area to the respondents Gregory Epsaro and Harriman Auto. We reverse.
The petitioner established that its property was in close proximity to the subject property,that the installation of the fence to create an impound lot would change the character of theneighborhood, and that the value of its property would be affected (see Matter of Sun-BriteCar Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 410,413-414 [1987]; Zupa v Paradise PointAssn., Inc., 22 AD3d 843 [2005]; Matter of John John, LLC v Planning Bd. of Town of Brookhaven, 15AD3d 486 [2005]). Thus, the Supreme Court erred in dismissing the petition based on lackof standing, and we will reach the merits (see Matter of Nicklin-McKay v Town of Marlborough Planning Bd., 14AD3d 858 [2005]).
The ZBA erroneously determined that the Village Building Inspector had the authority toissue a building permit for the construction of a fence on commercial property without site planapproval by the Planning Board of the Village of Harriman (hereinafter the Planning Board). Asa general rule, a zoning board's interpretation of its zoning ordinance is entitled to greatdeference (see Matter of Toys "R" Us v Silva, 89 NY2d 411, 418-419 [1996]; Matter of Louchheim v Zoning Bd. ofAppeals of Town of Southampton, 44 AD3d 771 [2007]; Matter of 151 Rte. 17M Assoc., LLC vZoning Bd. of Appeals of Vil. of Harriman, 19 AD3d 422 [2005]). Where, however, ashere, the question is one of purely legal interpretation of statutory terms, deference to the zoningboard's interpretation of its zoning ordinance is not required (see Matter of New YorkBotanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 419 [1998]; Matter of Brancato v Zoning Bd. ofAppeals of City of Yonkers, N.Y., 30 AD3d 515 [2006]; Matter of Jansen Ct. Homeowners Assn. vCity of New York, 17 AD3d 588 [2005]).
The plain language of the Village of Harriman Zoning Code § 140-45 (A) clearlystates that site plan approval by the Planning Board for all special permitted uses shall berequired prior to the issuance of a building permit for the construction of a structure. As thesubject property operates an auto repair shop pursuant to a special permitted use, and a fence isdefined as a structure (see Zoning Code § 140-4), the Planning Board was requiredto approve a site plan indicating the fence prior to the issuance of the building permit.
The parties' remaining contentions are without merit. Miller, J.P., Angiolillo, Eng andAustin, JJ., concur.