| Matter of Mar-Vera Corp. v Zoning Bd. of Appeals of the Vil. ofIrvington |
| 2011 NY Slip Op 04470 [84 AD3d 1238] |
| May 24, 2011 |
| Appellate Division, Second Department |
| In the Matter of Mar-Vera Corporation,Appellant, v Zoning Board of Appeals of the Village of Irvington,Respondent. |
—[*1] Stecich Murphy & Lammers, LLP, Tarrytown, N.Y. (Marianne Stecich of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Village of Irvington, dated June 23, 2009, which, after a hearing, confirmed theVillage Building Inspector's denial of the petitioner's application for a building permit, thepetitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.),entered February 23, 2010, which denied the petition and, in effect, dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
In 1979, the Village of Irvington approved a subdivision plan, allowing the petitioner toconstruct 27 single family houses and 14 attached townhouses on its 37-acre parcel of property.As a condition of the approval, the petitioner was required to dedicate 12 acres to the Village forpublic park use. The petitioner built the single family houses, but not the townhouses. In 2000,the petitioner sought a permit to construct the townhouses, but the Village Building Inspectordenied the application for a building permit, referencing new zoning ordinances which had beenpassed since approval of the original site plan with which the petitioner had to comply, includingan ordinance requiring site plan approval.
The petitioner appealed the denial to the Village Zoning Board of Appeals (hereinafter theZBA), which conducted a hearing and thereafter confirmed the Building Inspector's denial of thepetitioner's application for a building permit. The Supreme Court denied the petitioner's CPLRarticle 78 petition to annul that determination and, in effect, dismissed the proceeding. Weaffirm.
Contrary to the petitioner's contention, it did not establish that its plans were exempt from thenew zoning regulations because the lot on which the townhouses were to be built was a legalnonconforming use. "As a general rule, a nonconforming use of real property that exists at thetime a restrictive zoning ordinance is enacted is constitutionally protected and will be permittedto continue, notwithstanding the contrary provisions of the ordinance. A party seeking toovercome a restrictive zoning [*2]ordinance must demonstratethat the property was indeed used for the nonconforming purpose, as distinguished from a merecontemplated use, at the time the zoning ordinance became effective. Where only part of a parcelhas been used for a nonconforming use, a landowner may seek protection for the remainingportion by demonstrating that the use is unique and adaptable to the entire parcel and showingthat the landowner took specific actions constituting an overt manifestation of its intent to utilizethe property for the ascribed purpose" (Jones v Town of Carroll, 15 NY3d 139, 143-144[2010] [citations and internal quotation marks omitted]; see Glacial Aggregates LLC v Townof Yorkshire, 14 NY3d 127, 135 [2010]; Matter of Syracuse Aggregate Corp. vWeise, 51 NY2d 278, 284-285 [1980]; Buffalo Crushed Stone, Inc. v Town ofCheektowaga, 13 NY3d 88, 98 [2009]). Here, the townhouse lot was never developed orused for 14 townhouses as approved in 1979. Rather, that use and construction were merelycontemplated.
The petitioner also failed to establish that it had acquired a vested right to build thetownhouses as approved in 1979 (see generally Matter of Ellington Constr. Corp. v ZoningBd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]). "[T]here is nofixed formula which measures the content of all the circumstances whereby a party is said topossess 'a vested right.' Rather, it is a term which sums up a determination that the facts of thecase render it inequitable that the State impede the individual from taking certain action. Eachcase must be determined according to its own circumstances" (Matter of Estate of Kadin vBennett, 163 AD2d 308, 309 [1990] [citations and internal quotation marks omitted]). Therecord supports the ZBA's finding that the dedication of the parkland to the Village at the time ofthe subdivision approval in 1979 conferred a benefit on the petitioner as well as on the Village,and the ZBA reasonably concluded that the dedication of the parkland, standing alone, under thecircumstances presented, did not confer vested rights on the petitioner to develop the townhouselot in accordance with the 1979 approval. Further, although a developer who improves hisproperty pursuant to original subdivision approval may acquire a vested right in continuedapproval despite subsequent zoning changes, "where the amended zoning ordinance relates onlyto lot size or other restrictions with respect to development, and the site improvements madeunder the original subdivision plat would be equally useful or valuable, a vested right in thesubdivision as approved could not be claimed on the basis of those improvements" (Matter ofEllington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 152 AD2d365, 373 [1989], affd 77 NY2d 114 [1990]; see Ramapo 287 Ltd. Partnership vVillage of Montebello, 165 AD2d 544 [1991]). Here, the majority of the improvements tothe townhouse lot were used for the entire subdivision, and will be useable if the townhouse lot isdeveloped in accordance with the current zoning ordinances.
Accordingly, the ZBA's determination had a rational basis, and was not arbitrary andcapricious (see CPLR 7803 [3]; Matter of Pecoraro v Board of Appeals of Town ofHempstead, 2 NY3d 608, 613 [2004]).
Since the ZBA's finding that the petitioner did not have vested rights to develop thetownhouse lot in accordance with the 1979 approval was rational and not arbitrary, capricious, orcontrary to law, we need not reach the alternative argument of the ZBA and the Village that thepetitioner's vested rights were divested by abandonment and/or by an overriding benefit to thepublic.
The petitioner's remaining contentions are without merit. Covello, J.P., Chambers, Lott andMiller, JJ., concur.