| Matter of Hejna v Board of Appeals of Vil. ofAmityville |
| 2013 NY Slip Op 02395 [105 AD3d 843] |
| April 10, 2013 |
| Appellate Division, Second Department |
| In the Matter of Angelika Hejna et al.,Appellants, v Board of Appeals of Village of Amityville et al.,Respondents. |
—[*1] Buzzell, Blanda & Visconti, LLP, Melville, N.Y. (Joseph F. Buzzell and NicoleBlanda of counsel), for respondent JAMM Holding, Inc., doing business as RichmondAutobody.
In a proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the Village of Amityville dated August 27, 2007, which, after ahearing, granted the application of the respondent JAMM Holding, Inc., doing businessas Richmond Autobody, for special exceptions and use variances, the petitioners appealfrom a judgment of the Supreme Court, Suffolk County (Spinner, J.), dated June 6, 2011,which denied the petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdenying that branch of the petition which sought to annul so much of the determinationof the Zoning Board of Appeals of the Village of Amityville dated August 27, 2007, asgranted JAMM Holding, Inc., doing business as Richmond Autobody, a use variancepermitting it to add a 7,500-square-foot addition to the existing building on the premises,and which granted JAMM Holding, Inc., doing business as Richmond Autobody, aspecial exception and a use variance that allowed it to provide for parking in the portionof its property which is zoned for residential use, and substituting therefor a provisiongranting that branch of the petition; as so modified, the judgment is affirmed, withoutcosts or disbursements.
JAMM Holding, Inc., doing business as Richmond Autobody (hereinafter JAMM),owns a parcel of property in the Village of Amityville, which is split zoned between theB-2 Business District and the BB Residence District. It operates an autobody repair shopon the portion of the property located in the business district, pursuant to a previouslygranted special exception. JAMM applied to the Village of Amityville Zoning Board ofAppeals (hereinafter the ZBA) for modification of its special exception, allowing it toconstruct a 7,500-square-foot addition to the existing building on the premises,approving the proposed buffers on the southerly and easterly borders of the property, andpermitting it to provide parking in the portion of its property zoned for residential use.Moreover, since the Village of Amityville Board of Trustees (hereinafter the Board ofTrustees) had recently amended the Village Code to eliminate "public garage" usespermitted by special exception in the B-2 Business District, JAMM also sought, as analternative to its request for [*2]a special exception, a usevariance seeking the same relief. The ZBA found that JAMM was entitled to approval ofits application, both as a special exception and as a use variance, and the petitionerscommenced this action pursuant to CPLR article 78 seeking to annul that determination.
In a proceeding pursuant to CPLR article 78 to review a determination of a zoningboard of appeals, judicial review is limited to ascertaining whether the action taken isillegal, arbitrary and capricious, or an abuse of discretion (see Matter of Mejias vTown of Shelter Is. Zoning Bd. of Appeals, 298 AD2d 458 [2002]). Here, the ZBA'sdetermination to grant a modification of the special exception previously granted toJAMM, so as to allow JAMM to build the proposed 7,500-square-foot addition to theexisting building on the premises and approving the proposed buffers on the southerlyand easterly borders of the property, was not arbitrary and capricious. Specifically, therewas a rational basis for the ZBA's determination that the Board of Trustees' 2006amendment to the Zoning Code eliminating "public garage" uses as those authorized byspecial exception in the B-2 Business District was not intended to prohibit themodification of an existing special exception to permit the expansion of an existingautobody operation (see id.). As the ZBA noted in its determination, the sameBoard of Trustees that enacted the amendment thereafter approved JAMM's applicationto expand its existing autobody use.
The ZBA properly declined to consider the petitioners' arguments concerningJAMM's right to use a particular private right-of-way. The ZBA was not presented withan issue regarding adequate access to the premises, since access was provided by twocurb cuts on an abutting public street (cf. Village Law § 7-736 [2]; Matter of Morando v Town ofCarmel Zoning Bd. of Appeals, 81 AD3d 959, 960 [2011]; Matter of Josephv Romano, 208 AD2d 926, 926-927 [1994]). Thus, the issues raised by thepetitioners regarding the right-of-way concerned only enforcement of private propertyrights, which is not within the ZBA's jurisdiction (see Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424[2004]; Matter of Shuttle Contr.Corp. v Planning Bd. of the Inc. Vil. of Great Neck, 73 AD3d 789, 789-790[2010]; Matter of Gersten v Cullen, 203 AD2d 744, 747 [1994]).
However, we agree with the petitioners that the ZBA's determination to grantJAMM's application for a special exception to allow it to provide parking in the portionof the property located in the residential district was illegal, and must be annulled. TheVillage Code only allows the ZBA to grant such a special exception for the purpose ofproviding parking areas required by the Village Code (see Code of the Village ofAmityville § 183-127). As the petitioners assert, and JAMM does not dispute,JAMM does not require the parking for which it seeks a special exception in order tocomply with the Village Code's parking requirements. Thus, that branch of the petitionwhich sought to annul so much of the ZBA's determination as granted a specialexception allowing JAMM to provide parking in the portion of its property which iszoned for residential use should have been granted.
As JAMM was entitled to a special exception authorizing it to, inter alia, build the7,500 square foot addition to the existing building on the premises, it was not required toestablish entitlement to a use variance for such relief. However, inasmuch as JAMM wasnot entitled to a special exception for parking in the portion of its property which iszoned for residential use and the ZBA found, in the alternative, that JAMM was entitledto a use variance for such parking as a component of the larger use variance involvingthe 7,500 square-foot addition to the premises, we address the propriety of the ZBA'sdetermination that JAMM established entitlement to a use variance.
"[A] landowner who seeks a use variance must demonstrate factually, by dollars andcents proof, an inability to realize a reasonable return under existing permissible uses"(Matter of Village Bd. of Vil. of Fayetteville v Jarrold, 53 NY2d 254, 256[1981]; see Matter of Dreikausen v Zoning Bd. of Appeals of City of LongBeach, 287 AD2d 453, 456 [2001]). Here, JAMM failed to show, based oncompetent financial evidence, that it cannot yield a reasonable rate of return absent therequested variance. Therefore, the ZBA's determination to grant a use variance forparking in the BB residence district must be annulled.
The petitioners' remaining contentions either need not be reached or are without[*3]merit. Skelos, J.P., Hall, Austin and Hinds-Radix, JJ.,concur.
Motion by the respondent JAMM Holding, Inc., doing business as RichmondAutobody, to dismiss an appeal from a judgment of the Supreme Court, Suffolk County,dated June 6, 2011, on the ground that it has been rendered academic. By decision andorder of this Court dated October 15, 2012, the motion was held in abeyance and referredto the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is,
Ordered that the motion is denied. Skelos, J.P., Hall, Austin and Hinds-Radix, JJ.,concur.