| Matter of Steiert Enters., Inc. v City of Glen Cove, |
| 2011 NY Slip Op 09134 [90 AD3d 764] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Steiert Enterprises, Inc., Appellant, v Cityof Glen Cove, et al., Respondents. |
—[*1] Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Michael H. Sahn and JasonHorowitz of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the City of Glen Cove dated January 21, 2010, which, after a hearing, and upongranting the petitioner's application to amend a certificate of occupancy referable to a conformingone-family residence structure on a certain parcel of real property so as to permit a preexistingnonconforming commercial use, denied so much of the petitioner's application as was for (a)permission to use that structure for mixed-use commercial and residential purposes by restrictingthe residential use of that structure, (b) permission to operate a landscape design and maintenancebusiness as part of the preexisting nonconforming use of the parcel as a nursery, and (c) areavariances necessary to erect an accessory building on the subject parcel, the petitioner appealsfrom a judgment of the Supreme Court, Nassau County (Woodard, J.), entered September 14,2010, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner owns an approximately 1.2-acre parcel of real property in the City of GlenCove, situated in an R-3A residential zoning district. For more than 60 years, a licensed andregistered business, formerly known as Buchtenkirch's, operated a nonconforming nursery on theproperty, although a certificate of occupancy had never been issued for that use. The propertywas improved by several buildings, including a one-family dwelling on the northern part of theproperty (hereinafter the North Building). In 1971 the North Building ceased to be used as aresidential dwelling, and has since been used solely in connection with the property's preexistingnonconforming use as a nursery. Prior to the petitioner's closing of title on the property, the Cityissued a certificate of occupancy, which recited that the North Building was restricted to use as aone-family dwelling, and that the rear of the property consisted of a commercial florist's shop onthe first floor of a building, with a residential apartment above, an attached two-car garage, adetached shed, and greenhouses.
Subsequently, the petitioner submitted an application to the Zoning Board of Appeals [*2]of the City of Glen Cove (hereinafter the ZBA) requesting, interalia, that the ZBA amend the certificate of occupancy both to recognize the preexisting, historicalnonconforming use of the property as a garden center, nursery, and wholesale grower and reflectthe modern aspects of running such a business, which, according to the petitioner, should alsoallow the operation of a landscape maintenance and design business on the property. In addition,the petitioner applied for area variances to erect a prefabricated accessory storage building on theproperty. The petitioner further requested that the ZBA allow use of the North Building forcommercial purposes consistent with its prior nonconforming use.
Following a hearing, the ZBA, inter alia, denied the petitioner's request to operate alandscaping design and maintenance business on the subject property, as well as the requestedarea variances to erect the accessory building. The ZBA also determined that the North Buildingcould, in accordance with the petitioner's request, be used in its entirety for commercial purposesconsistent with its prior nonconforming use, but that the petitioner could not introduce a mixedresidential and commercial use, since mixed uses were not permitted in the R-3A residencedistrict and the residential component of the North Building had been discontinued in 1971. Thepetitioner then commenced this CPLR article 78 proceeding to review the ZBA's determination.The Supreme Court denied the petition and dismissed the proceeding. We affirm.
Local zoning boards have broad discretion, and "judicial review is limited to determiningwhether the action taken by the board was illegal, arbitrary or an abuse of discretion" (Matterof Ifrah v Utschig, 98 NY2d 304, 308 [2002]). Accordingly, " '[c]ourts may set aside azoning board determination only where the record reveals that the board acted illegally orarbitrarily, or abused its discretion, or that it merely succumbed to generalized communitypressure' " (Matter of Haberman vZoning Bd. of Appeals of Town of E. Hampton, 85 AD3d 1170, 1171 [2011], quotingMatter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; see Matter of Ifrah v Utschig,98 NY2d at 308).
In determining whether to grant an area variance, a zoning board must consider "the benefitto the applicant if the variance is granted, as weighed against the detriment to the health, safetyand welfare of the neighborhood or community by such grant" (General City Law § 81-b[4] [b]; see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Genser v Board of Zoning &Appeals of Town of N. Hempstead, 65 AD3d 1144, 1146-1147 [2009]; Matter of Pasceri v Gabriele, 29 AD3d805, 805-806 [2006]; Matter ofHalperin v City of New Rochelle, 24 AD3d 768, 770-771 [2005]). The zoning boardshould also consider "(i) whether an undesirable change will be produced in the character of theneighborhood or a detriment to nearby properties will be created by the granting of the areavariance; (ii) whether the benefit sought by the applicant can be achieved by some methodfeasible for the applicant to pursue, other than an area variance; (iii) whether the requested areavariance is substantial; (iv) whether the proposed variance will have an adverse effect or impacton the physical or environmental conditions in the neighborhood or district; and (v) whether thealleged difficulty was self-created, which consideration shall be relevant to the decision of theboard of appeals, but shall not necessarily preclude the granting of the area variance" (GeneralCity Law § 81-b [4] [b]). In applying the statutory balancing test for granting areavariances, a zoning board is "not required to justify its determination with supporting evidencewith respect to each of the five factors, so long as its ultimate determination balancing therelevant considerations was rational" (Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43AD3d 926, 929 [2007]; see Matter of Genser v Board of Zoning & Appeals of Town ofN. Hempstead, 65 AD3d at 1147).
Here, the ZBA engaged in the required balancing test and considered the relevant statutoryfactors. Contrary to the petitioner's contentions, the denial of its application had a rational basisand was not arbitrary and capricious. The evidence before the ZBA supported its conclusion thatgranting the proposed variances to erect an accessory building for commercial purposes wouldproduce an undesirable change to the character of the neighborhood. Additionally, the ZBArationally concluded that the requested variances were substantial in nature and that the petitionerhad a feasible alternative to erecting the proposed accessory building since it owned otherbusinesses in the vicinity that could be used for storage. The petitioner's hardship was alsoself-created in that the certificate of occupancy it sought to amend was issued prior to itspurchase of the property. [*3]Likewise, the petitioner purchasedthe property subject to the zoning restriction from which it sought relief in order to erect theproposed accessory building (see Matter of Eung Lim-Kim v Zoning Bd. of Appeals of Vil.of Irvington, 185 AD2d 346, 347 [1992]).
Furthermore, the ZBA properly determined that the operation of a landscaping design andmaintenance business on the subject property was not merely a permissible continuation of theprior nonconforming use of the property as a nursery. "Because nonconforming uses are viewedas detrimental to zoning schemes, public policy favors their reasonable restriction and eventualelimination" (Matter of 550 HalsteadCorp. v Zoning Bd. of Appeals of Town/Vil. of Harrison, 1 NY3d 561, 562 [2003];see Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d683, 685 [2002]). "Further, in keeping with the sound public policy of eventually extinguishingall nonconforming uses, the courts will enforce a municipality's reasonable circumscription of theright to expand the volume or intensity of a prior nonconforming use" (Matter of McDonald vZoning Bd. of Appeals of Town of Islip, 31 AD3d 642, 643 [2006] [internal quotation marksomitted]). Here, the ZBA rationally determined that a landscape design and maintenancebusiness, as conceived of by the petitioner, was an impermissible expansion of the priornonconforming use of the property and, therefore, the ZBA properly denied that portion of thepetitioner's application.
Finally, the ZBA properly determined that, while the petitioner could use the North Buildingexclusively for commercial purposes as it had been used for many years, the petitioner could notuse the North Building for mixed residential and commercial use under the applicable zoningcodes, which prohibit such use (see Code of City of Glen Cove § 280-30 [C];§ 280-43 [F]). Contrary to the petitioner's contentions, the ZBA did not place restrictionson the use of the North Building strictly as a residence, but merely explained that, in the contextof the proposed mixed use of the North Building for both commercial and residential purposes,the applicable zoning code provides that, once a nonconforming use is discontinued for one yearor longer, there is no right to resume such a nonconforming use (see Code of City of GlenCove § 280-30 [C]).
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.Mastro, A.P.J., Chambers, Austin and Miller, JJ., concur.