| Matter of Emrey Props., Inc. v Baranello |
| 2010 NY Slip Op 06792 [76 AD3d 1064] |
| September 28, 2010 |
| Appellate Division, Second Department |
| In the Matter of Emrey Properties, Inc.,Appellant, v Patricia A. Baranello et al., Respondents. |
—[*1] Sinnreich & Kosakoff, LLP, Central Islip, N.Y. (Vincent J. Messina, Jr., and Sandra G.Torget of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town of OysterBay Zoning Board of Appeals, dated February 15, 2007, which, after a hearing, denied thepetitioner's application for a building permit, the petitioner appeals from a judgment of theSupreme Court, Nassau County (Adams, J.), entered October 23, 2007, which denied the petitionand, in effect, dismissed the proceeding. By decision and order of this Court dated April 21,2009, the judgment of the Supreme Court was reversed, the petition was granted, thedetermination of the Town of Oyster Bay Zoning Board of Appeals was annulled, and the matterwas remitted to the Town of Oyster Bay Town Board to issue an appropriate building permit tothe petitioner (see Matter of EmreyProps., Inc. v Baranello, 61 AD3d 866 [2009]). By opinion dated January 12, 2010, theCourt of Appeals reversed the decision and order of this Court and remitted the matter to thisCourt "for consideration of issues raised but not considered on appeal to [this] court" (Matter of Emrey Props., Inc. vBaranello, 13 NY3d 915, 916 [2010]).
Ordered that, upon remittitur from the Court of Appeals, the judgment of the Supreme Court,Nassau County, entered October 23, 2007, which denied the petition and, in effect, dismissed theproceeding, is affirmed, with costs.
In 2003, the petitioner, Emrey Properties, Inc. (hereinafter Emrey), purchased propertylocated in Massapequa, upon which a gas station and a former auto repair shop are located. In1993, the previous owner secured a special use permit from the Town of Oyster Bay Town Board(hereinafter the Town Board) for construction of a new gas station and convenience store on theproperty, subject to certain voluntary covenants and restrictions. At some point prior to the timewhen Emrey purchased the property, the previous owner closed the auto repair shop and beganconversion to a convenience store, but this work was left unfinished. In June 2003, Emrey beganwork to complete the conversion of the auto repair shop to a convenience store. On July 10,2003, the Town of Oyster Bay Department of Planning and Development (hereinafter thePlanning Department) issued a stop-work order. In April 2005, Emrey submitted to the PlanningDepartment an "application for permit to build or install," seeking to "convert 850 square feet ofthe existing auto repair shop to retail use." In May 2005, the Planning Department issued a noticeof rejection, which stated "Section 246-5.2[—]Conversion of auto repair shop at a gasstation located in an 'NB' [*2]Neighborhood Business districtrequires change of zone and special use permit" (emphasis added). In June 2005, Emreyappealed this rejection to the Town of Oyster Bay Zoning Board of Appeals (hereinafter theZBA).
In February 2007, following a public hearing, the ZBA denied the appeal based upon, interalia, its conclusion that the proposed convenience store would constitute an impermissibleintensification of the property. Emrey then commenced this CPLR article 78 proceeding to annulthe ZBA's determination, arguing, among other things, that the determination was arbitrary,capricious, and unsupported by the evidence in the record. The Supreme Court denied thepetition and, in effect, dismissed the proceeding, finding that "while a retail store is a conforminguse within [an] NB district, it is only permissible as a principle [sic] use and not as anaccessory use to a nonconforming use," and that the ZBA's determinations that there had been anabandonment of one of the legal nonconforming uses of the property (i.e., the auto repair shopportion), and that the addition of the convenience store would create an intensification of thelegal nonconforming use of the property (i.e., the gas station), were supported by the record, andnot arbitrary or capricious.
Emrey then appealed to this Court, arguing that the Supreme Court erred in sustaining theZBA's determination. More specifically, Emrey contended that, by virtue of a use variancegranted to a prior owner of the property in 1949, the gas station/auto repair shop was a use of theproperty authorized by the variance and, thus, was not a nonconforming use within the meaningof the Town Code. Accordingly, Emrey contended that it was not required to comply with thoseprovisions of the Town Code which govern changes to nonconforming uses of property,including that which addresses intensification (see Town of Code of Town of Oyster Bay§ 246-4.2.2.1), and that it was entitled to convert the repair shop to a convenience store (apermitted use of the property under the current zoning) as of right. In any event, Emrey arguedthat it had not abandoned the auto repair use portion of the property, and that the conversion to aconvenience store would not intensify the use of the property. On appeal, this Court concludedthat the ZBA had not demonstrated that the conversion to a convenience store would intensifyuse of the subject property, and directed the Town Board to issue an appropriate building permitto Emrey (see Matter of Emrey Props.,Inc. v Baranello, 61 AD3d 866 [2009]).
The Court of Appeals reversed this Court's decision and order, specifically stating "[t]heZoning Board's determination, upholding the Planning Board's denial of a building permit forpetitioner to intensify an existing nonconforming use, was not arbitrary, capricious, orcontrary to the Town Code" (Matter ofEmrey Props., Inc. v Baranello, 13 NY3d 915, 916 [2010] [emphasis added]). The Courtof Appeals also remitted the case to this Court for "consideration of issues raised but notconsidered on appeal to [the Appellate Division]" (id. at 916). Inasmuch as the decisionspecifically stated that the existing use of the property is nonconforming, it has, in effect,rendered academic the remaining issues that were based upon Emrey's contention that the presentuse of the property was not nonconforming. To the extent the question of whether the existinguse of the property was, indeed, nonconforming was not decided by the Court of Appeals, thatcontention "is precluded from judicial review as [it] was not raised at the administrative level"(Matter of Trident Realty v Planning Bd. of Inc. Vil. of E. Hampton, Suffolk County, 248AD2d 545 [1998]; see Matter of Klapak v Blum, 65 NY2d 670, 672 [1985]; Matter ofBuffolino v Board of Zoning & Appeals of Inc. Vil. of Westbury, 230 AD2d 794, 795[1996]; see also Matter of Alfano vZoning Bd. of Appeals of Vil. of Farmingdale, 74 AD3d 961 [2010]; Matter of Icahnv Board of Zoning Appeals of Vil. of E. Hampton, 268 AD2d 475, 476 [2000]).
Further, the record demonstrates that the legal nonconforming repair shop use of the propertywas abandoned or discontinued. First, there is evidence that the repair shop use of the propertyhad been discontinued even before Emrey purchased the property. In fact, Emrey concedes thatthe prior owner had begun conversion of the repair shop before Emrey bought the property.Although it is unclear when the prior owner ceased the repair shop operation and began itsconversion, the prior owner was issued a special use permit to "utilize the premises as and for aconvenience store and gasoline filling station" in 1993, 10 years before Emrey purchased theproperty. Moreover, at the ZBA hearing conducted as a result of Emrey's appeal from thePlanning Department's rejection of its application for a building permit, a witness who lived inclose proximity to the subject property testified, "[t]he gas station has been there for a while. Theservice station has been closed. There was work started on it a few years ago, and then apparentlyit was [*3]stopped for whatever reason." Thus, there is evidencein the record to support the conclusion that the repair use of the property had been abandoned formore than one year even before Emrey purchased the property. Consequently, Emrey wasrequired to comply with the Town Code provisions regarding abandonment of a legalnonconforming use in order to construct the convenience store in place of the auto repair shop.
Accordingly, since the issues not considered by this Court on the prior appeal have beenrendered academic by the Court of Appeals' opinion or are without merit, the judgment of theSupreme Court must be affirmed. Skelos, J.P., Fisher, Santucci and Balkin, JJ., concur.