| Matter of Lucas v Board of Appeals of Vil. of Mamaroneck |
| 2012 NY Slip Op 02303 [93 AD3d 844] |
| March 27, 2012 |
| Appellate Division, Second Department |
| In the Matter of Nora Lucas et al., Respondents, v Board ofAppeals of Village of Mamaroneck et al., Appellants, et al.,Respondents. |
—[*1] Frederick J. Salanitro, Bronx, N.Y., and Shamberg Marwell Davis & Hollis, P.C., MountKisco, N.Y. (Robert F. Davis and Diana Bunin Kolev of counsel), for appellant BenmarProperties, LLC (one brief filed). Nora Lucas, Mamaroneck, N.Y., Anthony Weiner, Mamaroneck, N.Y., MarthaMcCarthy-Falk, Mamaroneck, N.Y., Jeffrey Falk, Mamaroneck, N.Y., and Stuart Tiekert,Mamaroneck, N.Y., petitioners-respondents pro se (one brief filed).
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of theBoard of Appeals of the Village of Mamaroneck dated January 3, 2008, which denied, byoperation of law, the petitioners' administrative appeal from the issuance of a building permitdated July 6, 2007, for the construction of a single-family dwelling on a lot designated as 609Brook Street, and the issuance of a certificate of occupancy issued for the same dwelling datedJuly 28, 2008, and, in the nature of mandamus to compel the revocation of the building permitand the certificate of occupancy, the Board of Appeals of the Village of Mamaroneck, ClarkNeuringer, George Mgrditchian, Mauro Gabriele, Gregory Sullivan, and Peter Jackson appeal, aslimited by their notice of appeal and brief, from so much of an order and judgment (one paper) ofthe Supreme Court, Westchester County (Cohen, J.), entered October 6, 2009, as, in effect,granted those branches of the petition which were to annul the denial of the petitioners'administrative appeal from the issuance of the building permit and the certificate of occupancyand to compel the revocation of the building permit and the certificate of occupancy, and BenmarProperties, LLC, separately appeals, as limited by its brief, from so much of the same order andjudgment as, in effect, granted those branches of the petition which were to annul the denial ofthe petitioners' administrative appeal from the issuance of the building permit and the certificateof occupancy and to compel the revocation of the building permit and the certificate ofoccupancy, and granted the petitioners' motion pursuant to CPLR 7805 to stay enforcement of thebuilding permit and certificate of occupancy to the extent of prohibiting it, its agents, attorneys,employees, representatives, and all persons acting in concert with them, from conveying the lot toanyone other than Benedict A. Salanitro or Franca Salanitro.[*2]
Ordered that the order and judgment is modified, on thelaw, (1) by deleting the provision thereof granting the petitioners' motion pursuant to CPLR 7805to stay enforcement of the building permit and the certificate of occupancy to the extent ofprohibiting Benmar Properties, LLC, its agents, attorneys, employees, representatives, and allpersons acting in concert with them, from conveying the lot to anyone other than Benedict A.Salanitro or Franca Salanitro, and substituting therefor a provision denying the motion, and (2)by deleting the provision thereof granting that branch of the petition which was to compel therevocation of the building permit and the certificate of occupancy and substituting therefor aprovision denying that branch of the petition, without prejudice to renewal upon the properjoinder of the Director of Buildings of the Village of Mamaroneck as a party respondent; as somodified, the order and judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Westchester County, for thejoinder of the Director of Buildings of the Village of Mamaroneck as a party respondent, shouldthe petitioners be so advised, and a new determination thereafter on that branch of the petitionwhich was to compel the revocation of the building permit and the certificate of occupancy.
The petitioners, who reside near or adjacent to the parcel of real property that is the subject ofthis proceeding, allege that the Director of Buildings of the Village of Mamaroneck (hereinafterthe Director) improperly issued a building permit and a certificate of occupancy to BenmarProperties, LLC (hereinafter Benmar), in connection with the construction of a single-familydwelling on the portion of the subject premises designated as 609 Brook Street. By Resolutiondated January 3, 2008, the Board of Appeals of the Village of Mamaroneck (hereinafter theBOA) denied, by operation of law, the petitioners' administrative appeal from the issuance of thebuilding permit and the certificate of occupancy issued in connection therewith. The petitionersthen commenced the instant proceeding pursuant to CPLR article 78, inter alia, to review theBOA's determination, and to compel the revocation of the building permit and the certificate ofoccupancy. The Supreme Court, among other things, in effect, granted those branches of thepetition which were to annul the BOA's denial of the administrative appeal and to compelrevocation of the building permit and the certificate of occupancy.
Contrary to the petitioners' contention, Benmar, the BOA, and the individual members of theBOA (hereinafter collectively the appellants) are aggrieved by the order and judgment (see Mixon v TBV, Inc., 76 AD3d144 [2010]).
There is no merit to the appellants' contentions that the petition should be dismissed astime-barred, barred by collateral estoppel, or as academic in light of the completion of theconstruction at issue.
Benmar owns a large parcel of real property located at 601 Brook Street (hereinafter theparent parcel), in the Tompkins Farm community, which is situated in an R-5 residential district,and improved by a single-family dwelling. Benmar sought to subdivide the parent parcel in orderto create two separate buildable lots pursuant to Code of the Village of Mamaroneck (hereinafterVillage Code) § 342-11 (D). The proposed resultant lot on which the existing dwelling wassituated continued to be designated as 601 Brook Street, while the proposed unimprovedresultant lot was designated as 609 Brook Street.
Pursuant to Village Code § 342-11 (D), "[w]here a lot is formed hereafter from part ofa lot already occupied by a building, such separation shall be effected in such manner as not toimpair conformity with any of the requirements of this chapter with respect to the existingbuilding and all yards and other required spaces in connection therewith; and no permit shall beissued for the establishment of a land use or the erection of a building on the new lot thus createdunless all the requirements of this chapter are complied with by such new lot." Since theproposed unimproved lot designated as 609 Brook Street failed to comply with the schedule ofminimum zoning requirements for lots in an R-5 district pursuant to Village Code §342-27, Benmar sought an area variance in order to permit the subdivision. In a resolution datedMay 9, 2006, the BOA granted this variance. However, in an order and judgment (one paper)dated January 10, 2007, the Supreme Court annulled the resolution dated May 9, 2006, in itsentirety, including the BOA's finding that the proposed resultant lot designated as 601 BrookStreet was a fully conforming lot under Village [*3]Code §342-27. Specifically, the Supreme Court concluded that the BOA's determination that theproposed resultant lot at 601 Brook Street was a fully conforming lot was in direct contradictionto a 1991 determination of the BOA (hereinafter the 1991 determination) that denied applicationsfor area variances sought by the prior owners of the parent parcel necessary to permit subdivisionof that parcel that were virtually identical to the variances sought by Benmar. Moreover, althoughBenmar sought to remedy the zoning deficiencies with respect to the proposed unimprovedresultant lot designated as 609 Brook Street, absent the grant of variances for the deficienciesremaining with respect to the proposed improved resultant lot designated as 601 Brook Street, nosubdivision could be permitted. The Supreme Court also concluded that, without a validsubdivision of the parcel into two separate zoning-compliant lots, it was error for the Director toissue a building permit to erect a structure at 609 Brook Street, since only one dwelling may besituated on any given parcel, the parent parcel had not been subdivided, and upon the judicialannulment of the area variance, the proposed unimproved resultant lot was not in compliancewith applicable zoning requirements (see Village Code § 342-21 [A]).
"A court reviewing a CPLR article 78 petition may not disturb the decision of a municipalbody charged with determining land use questions unless that body's decision is arbitrary andcapricious, lacks a rational basis, or is an abuse of discretion" (Matter of Fuentes v Planning Bd. of theVil. of Woodbury, 82 AD3d 883, 883 [2011]). The BOA's denial of the petitioners'administrative appeal from the issuance of the building permit and the certificate of occupancywas arbitrary and capricious in light of the 2007 order and judgment annulling the grant of thearea variance, as well as the BOA's failure to provide a rational explanation for reaching a resultdifferent from the 1991 determination on virtually identical facts (see generally Matter of Hurley v ZoningBd. of Appeals of Vil. of Amityville, 69 AD3d 940, 942 [2010]).
Moreover, it is undisputed that the proposed resultant parcel designated as 601 Brook Streetis a corner lot, abutting both Brook Street and Beach Avenue (see Village Code §342-3), and that it has front-yard setback and lot-depth deficiencies when measured from theBrook Street side (see Village Code § 342-27). The appellants erroneously contendthat this parcel, when measured from Beach Avenue, conforms to the applicable setbackrequirements, since a corner lot is deemed to have two front yards, two side yards, and no rearyard (see Village Code § 342-3). Village Code § 342-27 mandates, however,that both front yards must be conforming. Here, only the front yard on Beach Avenue isconforming. Alternatively, although Benmar could have elected either Brook Street or BeachAvenue as the front-lot line (see Village Code § 342-3), the resultant lot designatedas 609 Brook Street, which, as proposed, has one front yard at Beach Avenue, two side yards,and one rear yard, has rear-yard setback deficiencies as well (see Village Code §342-27). Thus, absent the grant of valid variances for the two resultant parcels, no validsubdivision of the parcel can be effected. As no such valid variances have been granted, theBOA's denial of the petitioners' administrative appeal from the issuance of the building permitand the certificate of occupancy was error. Accordingly, the Supreme Court correctly granted thatbranch of the petition which was to annul that determination.
Nonetheless, in a proceeding pursuant to CPLR article 78 which seeks to compel a body orofficer to perform a duty imposed by law, the proceeding must be commenced against the bodyor officer whose performance is sought (see CPLR 7803). The petitioners sought tocompel the BOA to revoke the building permit and the certificate of occupancy. However, onlythe Director is empowered to do so (see Village Code §§ 126-7, 126-12,126-15). Thus, the petitioners should have named and joined the Director as a party to thisproceeding (see Ferrick v State of New York, 198 AD2d 822 [1993]; D.B.C.G., Inc. vTown of Ramapo, 97 AD2d 533 [1983]). As such, the Supreme Court should have deniedthat branch of the petition which was to compel the revocation of the building permit and thecertificate of occupancy, albeit without prejudice to the proper joinder of the Director, should thepetitioners be so advised (see D.B.C.G., Inc. v Town of Ramapo, 97 AD2d 533 [1983]).
Finally, the Supreme Court granted the petitioners' motion pursuant to CPLR 7805 to stayenforcement of the building permit and certificate of occupancy to the extent of temporarilyrestraining Benmar, its agents, attorneys, employees, representatives, and all persons acting inconcert with them, from conveying the proposed resultant lot designated as 609 Brook Street toanyone other than Benedict A. Salanitro or Franca Salanitro. This was error, as the petitionersfailed [*4]to show that they would suffer an irreparable injury inthe absence of the temporary restraint (see Tesone v Hoffman, 84 AD3d 1219 [2011]; see generally Dover Gourmet Corp. vNassau Health Care Corp., 89 AD3d 979 [2011]). Angiolillo, J.P., Leventhal, Austinand Roman, JJ., concur.
[Recalled and vacated, see 109 AD3d 925.]