| Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals,Town of Mount Pleasant |
| 2015 NY Slip Op 04125 [128 AD3d 817] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Bradhurst Site Construction Corp.,Appellant, v Zoning Board of Appeals, Town of Mount Pleasant, et al.,Respondents. |
Keane & Beane, P.C., White Plains, N.Y. (Joel H. Sachs of counsel), forappellant.
Harris Beach PLLC, White Plains, N.Y. (Kristen Wilson and Darius Chafizadeh,Town Attorney, of counsel), for respondents.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review adetermination of the Zoning Board of Appeals, Town of Mount Pleasant, dated July 14,2011, which, after a hearing, denied the petitioner's appeal of a Code EnforcementAppearance Ticket dated September 17, 2010, issued by the respondent BuildingInspector, Town of Mount Pleasant, and action for declaratory relief, the petitionerappeals from a judgment of the Supreme Court, Westchester County (Zambelli, J.),entered July 16, 2012, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Contrary to the contention of the petitioner/plaintiff (hereinafter the petitioner), itfailed to establish that its use of the subject property as a maintenance garage and truckstorage facility was a preexisting nonconforming use which existed at the time of theenactment of the Town of Mount Pleasant Zoning Code (hereinafter the Zoning Code) in1928, and that it continued uninterrupted thereafter except for a period of one year or less(see Zoning Code § 218-78; Jones v Town of Carroll, 15 NY3d 139, 143 [2010]; Glacial Aggregates LLC v Town ofYorkshire, 14 NY3d 127 [2010]; Matter of Syracuse Aggregate Corp. vWeise, 51 NY2d 278 [1980]). The Zoning Board of Appeals of the Town of MountPleasant (hereinafter the ZBA) determined that a use variance issued in 1931 to a priorowner limited the subject property to a specific use, i.e., a sand and gravel operation,which use was discontinued in or around 1950, and that the petitioner's subsequent use ofthe subject lot as a maintenance garage and truck storage facility was a change to adifferent nonconforming use, rather than a continuation of an existing nonconforminguse. The ZBA's determination was not irrational and is supported by evidence in therecord (cf. Matter of ScarsdaleShopping Ctr. Assoc., LLC v Board of Appeals on Zoning for City of New Rochelle,64 AD3d 604, 606 [2009]; Matter of Borer v Vineberg, 213 AD2d 828,829-830 [1995]). Furthermore, the petitioner's contention that therespondents/defendants (hereinafter the respondents) are equitably estopped fromprohibiting it from operating a maintenance garage and truck storage facility on thesubject lot is without merit, as the evidence submitted by the petitioner did not establishthat there were "exceptional circumstances" here involving wrongful or negligentconduct of a governmental subdivision, or misleading [*2]nonfeasance by that governmental subdivision (see Agress v Clarkstown Cent.School Dist., 69 AD3d 769, 771 [2010]; cf. Landmark Colony at Oyster Bayv Board of Supervisors of County of Nassau, 113 AD2d 741, 744 [1985]).
There is no merit to the petitioner's contention that the ZBA's determination shouldbe annulled because the respondents failed to produce certain information pertaining tothe subject property in response to its request pursuant to the Freedom of InformationLaw (Public Officers Law art 6 [hereinafter FOIL]). Pursuant to Public Officers Law§ 89 (4) (a), a person denied access to information requested under FOILmust appeal the denial in writing to the head of the entity or other designated personwithin 30 days (see Matter of Tinker St. Cinema v State of N.Y. Dept. of Transp.,254 AD2d 293, 294 [1998]). As the record does not establish that the petitioner appealedthe denial in writing, the Supreme Court correctly determined that the petitioner failed toexhaust its administrative remedies and, thus, could not resort to a judicial forum to gainrelief (see Doe v Lake GroveSch., 107 AD3d 841, 842-843 [2013]; Matter of Jamison v Tesler, 300AD2d 194 [2002]; Matter of McGriff v Bratton, 293 AD2d 401 [2002];Matter of Newton v Police Dept. of City of N.Y., 183 AD2d 621, 623 [1992];Matter of Kurland v McLaughlin, 122 AD2d 947 [1986]).
Accordingly, the Supreme Court properly denied the petition and dismissed theproceeding on the merits. Chambers, J.P., Hall, Cohen and Miller, JJ., concur.