| Matter of Henderson v Zoning Bd. of Appeals |
| 2010 NY Slip Op 02951 [72 AD3d 684] |
| April 6, 2010 |
| Appellate Division, Second Department |
| In the Matter of George Henderson et al.,Appellants, v Zoning Board of Appeals et al., Respondents, et al.,Respondents. |
—[*1] Silverberg Zalantis, LLP, Tarrytown, N.Y. (Katherine Zalantis and Steven M. Silverberg ofcounsel), for respondents-respondents Zoning Board of Appeals and Richard Carroll, as ZoningEnforcement Officer of the Village of Mamaroneck, New York. Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael Belohlavek and Ann P.Zybert of counsel), for respondent-respondent Commissioner of General Services of the State ofNew York. McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia W. Gurahian ofcounsel), for respondents-respondents Richard Ottinger and June Ottinger.
In a proceeding pursuant to CPLR article 78 to review a determination of the Village ofMamaroneck Zoning Board of Appeals dated June 7, 2007, made after a hearing, that, inter alia,property designated as 818 The Crescent in the Village of Mamaroneck complied with the squarefootage requirement of the R-15 zoning district and the gross floor ratio requirement of theapplicable zoning code, the petitioners appeal (1), as limited by their brief, from so much of anorder and judgment (one paper) of the Supreme Court, Westchester County (Adler, J.), enteredAugust 15, 2008, as granted those branches of the separate motions of the respondents RichardOttinger and June Ottinger and the respondent Zoning Board of Appeals which were pursuant toCPLR 3211 (a) and 7804 (f) to dismiss the fourth and fifth causes of action insofar as assertedagainst those respondents and the entire petition insofar as asserted against those respondents bythe petitioners Suzanne McCrory, Leonard Weiss, and Eleanor Weiss, dismissed the fourth andfifth causes of action insofar as asserted against those respondents, and dismissed the proceedinginsofar as asserted by the petitioners Suzanne McCrory, Leonard Weiss, and Eleanor Weissagainst those respondents, and (2) from a judgment of the same court entered March 17, 2009,which denied the petition and dismissed the proceeding insofar as asserted by the petitionersGeorge Henderson and Irene Henderson.
Ordered that the order and judgment entered August 15, 2008, is affirmed insofar [*2]as appealed from; and it is further,
Ordered that the judgment entered March 17, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The petitioners commenced this proceeding seeking to annul a determination of the Villageof Mamaroneck Zoning Board of Appeals (hereinafter the ZBA), set forth in portions of aresolution dated June 7, 2007, which upheld the issuance of a building permit issued to therespondents Richard Ottinger and June Ottinger (hereinafter together the Ottingers), based uponits findings that both the proposed construction and the subject property complied withapplicable zoning code provisions. "[O]ne who objects to the act of an administrative agencymust exhaust available administrative remedies before being permitted to litigate in a court oflaw" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; see Matter of Lucas v Village ofMamaroneck, 57 AD3d 786, 787 [2008]; Matter of Brunjes v Nocella, 40 AD3d 1088, 1088-1089 [2007]).Here, it is undisputed that the petitioners Suzanne McCrory, Leonard Weiss, and Eleanor Weissfailed to pursue an available administrative remedy pursuant to Code of Village of Mamaroneck§ 342-90, which authorizes an appeal to the ZBA from the issuance of a building permit.Contrary to the contentions of these petitioners, they were required to challenge the issuance ofthe building permit before the ZBA prior to commencing this proceeding. Since they did not, theSupreme Court properly granted those branches of the separate motions of the Ottingers and theZBA which were to dismiss the proceeding insofar as asserted against them by those petitionersfor failure to exhaust administrative remedies. The Supreme Court also properly granted thosebranches of the separate motions of the Ottingers and the ZBA pursuant to CPLR 3211 (a) and7804 (f) to dismiss the fourth and fifth causes of action insofar as asserted against them, althoughit should have done so on a ground other than that upon which it relied. The Supreme Courtshould have dismissed those causes of action insofar as asserted against those respondents forfailure to state a cause of action, since even if the allegations set forth therein were true, thepetitioners would not thereby be entitled to the relief they seek here, specifically, the annulmentof the ZBA's determination (see CPLR 3211 [a] [7]; Matter of Wilson v Board of Educ. Harborfields Cent. School Dist., 65AD3d 1158 [2009]).
Additionally, under a zoning ordinance which authorizes interpretation of its requirementsby a board of appeals, such as Code of Village of Mamaroneck § 342-91, "a zoningboard's interpretation of its zoning ordinance is entitled to great deference . . . andjudicial review is generally limited to ascertaining whether the action was illegal, arbitrary andcapricious, or an abuse of discretion" (Matter of Brancato v Zoning Bd. of Appeals of City of Yonkers, N.Y.,30 AD3d 515, 515 [2006]; seeMatter of 1215 N. Blvd., LLC v Board of Zoning Appeals of Town of N. Hempstead, 63AD3d 1071, 1072 [2009]; Matterof Conti v Zoning Bd. of Appeals of Vil. of Ardsley, 53 AD3d 545, 547 [2008]). Here,the ZBA's interpretation of the zoning code provision in dispute was reasonable, not arbitraryand capricious, and rational. Accordingly, the ZBA's determination that both the proposedconstruction and the subject property complied with both the square footage and the gross floorarea ratio requirements of the zoning code that were applicable at the time that the buildingpermit application was submitted, was not illegal, not arbitrary and capricious, and not an abuseof discretion.
The petitioners' remaining contentions are without merit. Skelos, J.P., Santucci, Angiolilloand Chambers, JJ., concur.