| Matter of Scarsdale Shopping Ctr. Assoc., LLC v Board of Appeals onZoning for City of New Rochelle |
| 2009 NY Slip Op 05783 [64 AD3d 604] |
| July 7, 2009 |
| Appellate Division, Second Department |
| In the Matter of Scarsdale Shopping Center Associates, LLC,Respondent, v Board of Appeals on Zoning for the City of New Rochelle,Appellant. |
—[*1] Shamberg Marwell Davis & Hollis, P.C., Mount Kisco, N.Y. (Robert F. Davis and DianaBunin of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofAppeals on Zoning for the City of New Rochelle dated May 22, 2007, which, after a hearing,affirmed the denial, by the Building Official of the City of New Rochelle, of the petitioner'sapplication for a building permit, the appeal is from a judgment of the Supreme Court,Westchester County (Nicolai, J.), entered February 1, 2008, which granted the petition, annulledthe determination, and remitted the matter to the Board of Appeals on Zoning for the City ofRochelle "with the direction that petitioner's proposed building is subject to Planning Board siteplan review and approval without the necessity of an additional use variance."
Ordered that the judgment is modified, on the law, by deleting the provision thereofremitting the matter to the Board of Appeals on Zoning for the City of Rochelle "with thedirection that petitioner's proposed building is subject to Planning Board site plan review andapproval without the necessity of an additional use variance" and substituting therefor aprovision remitting the matter to the Board of Appeals on Zoning for the City of Rochelle forremittal, in turn, to the Building Official for the City of New Rochelle for further proceedingsconsistent herewith; as so modified, the judgment is affirmed, without costs or disbursements.
In this proceeding pursuant to CPLR article 78, the petitioner, Scarsdale Shopping CenterAssociates, LLC, challenges the determination of the Board of Appeals on Zoning of the City ofNew Rochelle (hereinafter the Board of Appeals) affirming the determination of the BuildingOfficial of the City of New Rochelle (hereinafter the Building Official) that the petitioner isrequired to obtain a use variance for the further expansion of its shopping center. The SupremeCourt granted the petition, annulled the Board of Appeals' determination, and remitted the matterto the Board of Appeals "with the direction that petitioner's proposed building is subject toPlanning Board site plan review and approval without the necessity of an additional usevariance." We agree that no [*2]additional use variance isrequired. We do not agree, however, that the petitioner established that its application otherwisecomplied with the applicable zoning restrictions and may therefore proceed directly to the siteplan review phase.
The petitioner owns an 8.29-acre shopping center in the City of New Rochelle, on its borderwith the Village of Scarsdale. The original building in the shopping center was constructed in1956, after the Supreme Court determined that the property owner had a vested right to buildunder the zoning code provisions applicable to the NR-2 neighborhood retail zoning district inwhich the subject property was situated prior to 1956, despite the improper action of the NewRochelle City Council in prohibiting the granting of any approvals for the property and thenrezoning it as part of a residential district (see Matter of Miller v Dassler, 155 NYS2d975 [Sup Ct, Westchester County 1956]). The property owner was permitted to complete theconstruction that had been commenced prior to the City Council's action and, later that year, theBoard of Appeals granted a use variance to permit the construction of additional retail space. Inthe ensuing years, the petitioner was permitted to expand the shopping center on severaloccasions, to its current 28 stores, without any additional use variances.
In December 2006 the Building Official denied the petitioner's application for a buildingpermit for the construction of a 14,243-square-foot addition to the shopping center on the groundthat the 1956 variance did not permit such construction. The petitioner sought review of thedenial before the Board of Appeals. After a public hearing, the Board of Appeals affirmed thedenial, finding that the 1956 use variance was limited to the construction of one 10-storebuilding and, thus, that another use variance was required for the proposed expansion.
Initially, the Supreme Court correctly determined that this matter was ripe for judicial reviewand that the petitioner exhausted its available administrative remedies by appealing to the Boardof Appeals (see Matter of Ward v Bennett, 79 NY2d 394 [1992]; cf. Matter of Brunjes v Nocella, 40AD3d 1088 [2007]; WaterwaysDev. Corp. v Lavalle, 28 AD3d 539 [2006]).
With respect to the merits of the petition, a use for which a use variance has been granted is aconforming use and, as a result, no further use variance is required for its expansion, unlike a usethat is permitted to continue only by virtue of its prior lawful, nonconforming status (seeMatter of Angel Plants v Schoenfeld, 154 AD2d 459, 461 [1989]). Thus, to the extent thatthe Board of Appeals determined that a use variance was required, its determination wasirrational and contrary to law, and was properly annulled by the Supreme Court (see Matter of Brancato v Zoning Bd. ofAppeals of City of Yonkers, N.Y., 30 AD3d 515 [2006]).
The fact that the property may be used for commercial purposes, however, does not leave thedevelopment of the property unrestrained. The use of the property remains subject to the terms ofthe use variance (see Matter of Borer v Vineberg, 213 AD2d 828, 829 [1995]) and,where the Board of Appeals has previously determined that the development is limited only to acertain extent by the terms of the variance, the Board of Appeals is not free to later disregard thatdetermination (see Matter of Kogel vZoning Bd. of Appeals of Town of Huntington, 58 AD3d 630, 632 [2009]).
Here, the resolution granting the use variance was destroyed in a fire and, as a result, theterms of the variance must be gleaned from the available extrinsic evidence (see Matter ofBorer v Vineberg, 213 AD2d at 829). That evidence is equivocal. The original cardmaintained by the Bureau of Buildings of the City of Rochelle with respect to the propertyreflects that the Board of Appeals "granted permission to erect an addition . . . asper plans submitted." This language can be read as reflecting the Board of Appeals'determination to limit the variance to the construction that was then proposed. To do so,however, would be inconsistent with the more compelling evidence derived from the conduct ofthe responsible municipal officials more proximate in time to the granting of the variance. Thatconduct included a course of approvals for additions to the shopping center over many years,none of which required a use variance, and many of which were explicitly referred to as beingpursuant to the 1956 use variance. On this record, therefore, the only reasonable view of the1956 use variance is that it permitted the retail use of the property, but did not limit that use tothe 10 stores referred to on the building card. The Board of Appeals acted arbitrarily, [*3]therefore, in concluding that the variance granted in the 1956 usevariance was so limited.
That the variance is not so limited, however, does not mean that there can be no constraintson the commercial development of the property. It is undisputed in the record that the 1956application sought approval for the use of the property in accordance with the regulationsapplicable to the NR-2 neighborhood retail zoning district that had been in effect prior to theCity Council's action. It would not be unreasonable, therefore, to conclude that the extent of the1956 variance is defined by those regulations. Thus, while a use variance is not necessary, anarea variance may be required, in addition to the site plan approval to which the Supreme Courtreferred, if the proposed expansion of the shopping center exceeds the applicable dimensionalconstraints (see Matter of Concerned Citizens of Westbury v Board of Appeals of Inc. Vil. ofWestbury, 173 AD2d 615, 616 [1991]; Matter of Angel Plants v Schoenfeld, 154AD2d at 461). " '[T]he power to interpret the zoning ordinance is vested in the building inspectorand the Zoning Board of Appeals' " (Figgie Intl. v Town of Huntington, 203 AD2d 416,417-418 [1994], quoting Moriarty v Planning Bd. of Vil. of Sloatsburg, 119 AD2d 188,197 [1986]). Since the Building Official concluded that a use variance was required, and theBoard of Appeals sustained that determination, the Building Official did not reach the issue ofwhether an area variance may be required. Since the record does not conclusively demonstratethat no such area variance is required, the matter must be remitted to the Board of Appeals, forremittal, in turn, to the Building Official for consideration of that issue and a determinationthereafter. Rivera, J.P., Spolzino, Angiolillo and Balkin, JJ., concur.