Matter of Sforza v Modelewski
2012 NY Slip Op 31065(U)
April 18, 2012
Supreme Court, Suffolk County
Docket Number: 22446/2011
Judge: Paul J. Baisley
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publication.
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MEMORANnUM
SUPREME COURT - SUFFOLK COUNTY
PRESENT:
HON. PAUL.I. BAISLEY, .IR., .I.S.c.
lAS.
PART 36
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In the Matter of the Application of
ALFRED V. SFORZA,
By: Baisley, lS.C.
Dated: April IB, 2012
Petitioner,
INDE)( NO.: 22446/201 I
MOT. NO.: 001 MOT D
-againsl-
CHRISTOPHER MODELEWSKI, SCO'lT M.
FRAYLER, CAROL GAUGHRAN, JEFFREY N.
NANESS, ED PEREZ, JAMES ROGERS and
ROBERT F. SLWGO, constituting the Zoning
Board of Appeals of the Town of Huntington, Suffolk
County, New York,
Respondents.
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PI':TITIONER'S ATTORNEY:
HERBERT L. HAAS, ESQ.
34 Dewey Street, P.O. Box 1850
Huntington, New York 11743
RESPONDENTS' ATTORNEY:
LAW OFFICES OF
JAMES F. MATTHEWS
191 New York Avenue
Huntington, New York 11743
Petitioner conunenccd this Article 78 proceeding for ajudgment vacating, annulling and
setting aside the determination of the respondent Zoning Board of Appeals (the "Board") of the Town
of Huntington (the "Town") dated June 30. 2011 and filed June 22, 2011 which conditionally 6rranted
petitioners' application to legalize an existing two-family dwelling, garage and shed, and directing the
respondent Board to issue a decision granting the relief sought in the application of petitioner.
Petitioner Alfred V. Sforza is the owner of residential premises at 32 Barrow Court, which he
acquired by deed dated March 2],2003 from his parents, Alfred A. Sforza and Lena Sforza, subject to
his parents' retarned lilc estate. The property, which is located in the R-7 Residence District of the Town
of Huntington, is improved with a non-conforming hNo-stOry, two-family dwelling where only onefamily dwellings are pennitted, a detached garage, and a shed that is located too close to the propeny
line. Lena Sforza died on September 5, 2008, and Alfred A. Sform (the "senior Mr. Sforza") is the
surviving life tenant. After attempting to rent the second-floor apartment in 2010 and subsequently
receiving notices or violation in May and July 2010 for maintaining an illcgal two-family house, and
after his request for a Letter in Lieu ora Certificate of Occupancy was denied by the Town of Huntington
Building Department on August 25, 20 10, petitioner applied to the Board to legalize the nonconforming
two-family dwelling, garage and shed.
A public hearing was held on March 17,2011 and continued on June 9, 20 11. Various witnesses,
including the 71-year-old petitioner and petitioner's 96-year-old father, testified that the premises had
been continuously used and occupied as a two· family dwelling by various family members and/or
umelated tenants from the time of its construction, prior to the enactment of the Town of Huntington
Zoning Code (the "Code") in 1934, to the present. Petitioner's father testified that the property was
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hl,{.,.y
No. 12-1--I-6/2iJl!
purchased by his \vife's mother in 1916 and that she continuously occupied the tirst-Iloor apartment from
1916 until she died in 1970 and that the second-floor apartment was continuously occupied by a
succession of lamily members (including the witness and his wife): and that in 1966 he and his wife
purchased the property from her family, and thercaner lived in the lirst-noor apartment until his wilc's
death in 2008 while a succession of family member and/or tenants continuously occupied the seeondfloor apartment. Petitioner and his father both testified that the senior Mr. Sforza continues to live in
the first-t-1oor up<lrtment, and that Sharon Sforza, petitioner's daughter and the senior Mr. Sforza's
granddaughter, lived in the second-floor apartment from 1988 to 20 10, when the apartment was vacated
in order to make necessary repairs. Petitioner confirmed his father's testimony or the history of the
property based on his own personal knowledge starting from the 1940s. f-Iefurther testified that after
receiving notices or violation in May and July 2010 he was told by a Tovvn of Huntington Code
enforcement onicer that he was not permitted lO rent the second-Ooor apartment until he obtained a
permit legalizing the apartment.
Affidavits dated May 8, 1992 by two individuals attesting to their personal knowledge that the
house had been a two-family house continually occupied as such since 1919 or 1920 were cntered into
evidence bclore the Board. Evidence was also presented establishing that there are separate cntrances
to the first- and second-floor apartments and separate electric and gas meters for the two apartments. The
Board also heard expert testimony from a real estate appraiser that the property is located in an older
section of the Village of Huntington containing homes that were for the most part developed prior to the
enactment of the Code in 1934, many of which were constructed as two-family homes. The expert
testified that upon the enactment of the Code, the subject premises were located in an R-7 Residence
district where two-family homes arc not permitted, although a small portion of the property is located
in an R-5 Residence district where two-family homes are permitted. The expert testified that based upon
his inspection orthe property, the house appeared to have been set up as a two-family home lor many,
many years, and further testified that the two apartments are completely separate from one another, and
that there is no common doorway connecting the two units. The expert testified that granting the
application to legalize the non-conforming two-family dwelling, garage and shed would not result in a
detriment to neighboring properties, an undesirable change in the character or pattern of development
of the neighborhood, and that the relief sought by petitioner could not be achieved by pursuing some
other feasible method.
Three: witnesses, all residenls of Barrow Court, testilied in opposition to the application. Kay
Smith testilied that the subject house had been vacant lor at least a year and a hall'. She testified that the
senIor Mr. Storza had moved Ollt shortly atter his wife died. Ms. Smlth testified that there were
'·relatives from Northport'· living there within the last year while their house was being reconstmcted,
but testified that no one had lived in the upstairs apartment within the last year. Susan Tully testified
that the subject house has been vacant ·'well over a year and a haIr' and denied that the senior Mr. Sforza
has been living there. Victoria Bruno also testi1ied that the house has been vacant for a year and a hall~
and stated that she has --not seen a tenant in there for over eight years.·'
In light or the conflicting tcstimony, the Board elicited further testimony from petitioner's
attorney and thcn il·om petitioner himself. Upon further questioning, petitioner admitted that alter
suffering a heart attack shorlly after his wi I'cdied in 2008, his fi.lther had actually been staying wtth
petitioner in his home on nearby Oakwood Road because "he has to be taken care of." Petitioner
testified that the senior Mr. Sforza still visits the subject house, wherc his apartment on the first !lour
is still maintained together with all of its furnishings, and that --he likes 10 stay there mainly because the
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..I!li·"d
Index No. 22-/.16/201 I
I'. Sj,)r:(I v Chrislo{Jhcr illm/dew.I'k! "111/,
memories are in this house.'" lIe testitied that his father's ear is still in the garage, and that he "Iell
everything the way it is so he can walk back there any time he wants to." Although there was testimony
that the senior Mr. SforLa occasionally stays there overnight, petitioner admitted that his father has not
spent two consecutive nights in the house since his heart attack. Petitioner conceded that it has been
approximately
three years since his father lived there continuously.
Petitioner also contimlcd Ms.
Smith's testimony that relalives from Northport used the lirst-Ooor apartment from August 2010 through
December 2010 while their house was being buill.
Also 011 lollow-up questioning from Board members, petitioner admitted that his daughter Sharon
had actually moved to California in 2000, but testified that the family continues to maintain the secondIloor apartment so that she has a place to stay when she comes to visit, which he testified she does three
or four times a year for a week at a time. He testified that his daughter was there most recently in
October 2010. Petitioner's follow-up testimony further reflects that at the time he received the first
notice of violation in May 20 I0, he was preparing the second-floor apartment for rental.
In light of the petitioner's after-the-fact revision of his initial testimony regarding the nature of
the occupancy orthe two apartments, the Board directed petitioner's attorney to submit a memorandum
of law addressing the legal issues regarding a nonconfonning
two-family use in the context of
intermittent utilization of the premises, and with respect to the senior Mr. Sforza's intent regarding the
utili;wtion or the premises.
Pelitioner submitted the requested memorandum
of law dated April 19,
2011, and on June 30, 2011 the Board issued its decision which was thereafter filed 011 July 22, 2011.
The Board's decision provides, in relevant part, as follows:
"The applicant submitted testimony and evidence to support a linding that the subject property
had prcviously bcen used as a two-family dwelling. However, it is clear that due to a change in
fami Iycircumstances, largely health-related, that serious questions exist regarding whether such
use has lapsed. Applicant, however, testified that his father continues to occasionally visit thc
property and that there remains an attachment to the dwelling in which he resided for many
years. The Board finds that continued permission to use the property as it currently is being used
subjcclto the: conditions notcd herein will not have any adverse impacts upon arCfl properties
and will be consistent with tht: currcnt usc ol'the propeliy.
"This gl"<1I1t subject to compliance with thc following condition:
is
"c r:mt will lapse upon any tnmsfcr of an ownership interest in the propcrt'y,dcath
of the fathel', Alfred V. Sforza [sicl, or if he ceases to OCCUP)'
dwelling, on the occurrence
of any of these events.
"As
exhihits, the
devaluation
community.
to the dwelling and the shed, after hearing all of the cvidence and cxtllnining the
Board finds that the structures have existed on the subject property without causing
of surrounding property values or altering the pattcrn of development of the
As such. no undesirable change will result by a grant of the requested variancc.
"Accordingly, Ihis application is grantcd and we dlrccllhe applicant/owner to apply to
the: Depart men! (1f Engineering Services to issue the neccssary bu i Iding perm its and eerti l"jc~lte
ofoccupnncy to legalize the dwelling and condllional use as two f"mnilyand 10 legalize shed as
more fully described on the: survey annexed hereto and made a pari hereof as Exhibit #3 at the
puhlic hcal"lng.··
Petitioner
timely commenced
the instant Article 78 proceeding
on August
12,2011.
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..JIFed 1-.
S)()I"":;a
I'
Cliri.I'(opha M"dd,'lI'ski
!luk'x No. J]-I-/61]fJll
1.'1 111.
A nonconfoolling use is defined in the Code as '-[aJny building, structure or use ofland lawfully
existing at the time of enactment of this chapter or any amendment thereto which does not conform to
the zoning regulations of the district in which it is located by reason of the enactment of this chapter or
subsequent 3mendmenr...:' (Code § 198-2(B). A lawful nonconfonning use of a building, structure or
land that pred<ltesthe enactmcnt of the zoning regulations may be continued (Code § J 98- 102)_but ··lill'
active and continuous operation of a nonconforming use is not carried on for a period of one (1) year,
the budding or land on which such use was conducted shall thereafter bc used only in conformance with
the regulations 01" the district in which the prcmises is situated·' (Code § 193-1 05». The Code docs not
define the terms "active and continuous operation" or "carried on," but provides, with respect to the use
of land, that "casual or intennittent use ...shall not establish the existence ora lawful nonconfonnmg use"
(Code § 198-1 OS)).
The Board found that the evidence presented by petitioner established the existence of a non·
confonning use of the dwelling as a two-family house that predated the enactment of the Code. Thus,
petitioner was presumptively entitled, as of right, to the issuance of the requested letter in lieu of a
certificate of occupancy for a two-family dwelling (Code § J 98-1 02) unless the "active and continuous
operation" orthe two-family use had lapsed for a period of one year (Code § 198-1 05). The Board, citing
a "largely health-related" "change in famIly circumstances," noted the existence of "serious· questions
regarding whether such use has lapsed," but did not make any explicit finding as to whether such lapse
had in fact occurred or the duration of any such lapse. It did not determine, as a matter of fact or law,
that "active and continuous operation" of the two-family use had not been carried on for a period orone
year (Code § 198-1 OS).
Rather, the Board cited petitioner's follow-up testimony regarding the senior Mr. Sforza's
occasional visits to the property and his continued "attachment to the dwelling in which he resided for
many years" In support of its conditional grant of "continued permission to use the property as il
wrrently is heing lIsecf' (emphasis added). The Board authorized petitioner to apply for and the
Department of Engineering Services to issue necessary building permits and certificate of occupancy to
legalize the conditional use of the dwelling as two family, thus implicitly finding that the property is
currently bcing used as a two-Camily housc. Moreover, in so finding, the Hoard also implicitly
determined that there had no! been a lapse in the two-family use for a period of one year (Code § 198105).
This determination is supported by the evidence in the record. The record of the hearing rcl1ects
that the conflicting testimony, not only between the petitioner and the objecting witnesses, but between
petitioner" s initial and follow-up testimony, was fully explored by the Board, which appears to have fully
credited petitioner"s "clarificalion" regarding the use of the property since 2008. as evidenced by its
decision granting petitioner permission to -'use the property as it currently is being used" (Squire I'
('ol1l1'ay, 2561\1)2d 771 I.3d Dcpt [998 J). The nxord further reflects that the physical condition orthe
property continues to be that ora two-family house. There continue to be two separate apartments with
scparate cntrnnccs and separate gas and electric mcters. There is no doorway connecting the two
Dpartments, and no one occupies the entire house. The furnishings continue to be maintained as they
wcre when the sel1lor Mr. Sfol"/.<l as living with hIS wife in thc downstairs apartment. which his
w
testimony indicates he still regards as his residence.
Unless a ·'lapse" ordinance on its face demonstrates a clear intent to equate '·something less than
discontinuation orthe entire nOJlCOnfOnlling
use" forthe prescribed period \-vithabandonment of the use,
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[* 5]
.-l/jr('d J '. Vor::lI v CfI,-islop/I<!I' Modelf'lI'ski
f'f
a/.
/ndf'x No. 12N6J201/
courts have generally required proof that the entire nonconforming use was discontinued (Toys "R" U~
\' Silva. supra, 89 NY2d 411 [19961; MaHer of Mar zelia v Munroe, 69 NY2d 967 f1987]; Town o{lslip
\I P.B.S. Marina, 133 AD2d 81 f2d Dcpt 1987]). The "current usc" of the property as found by the Board
obviously represents something less than the complete abandonment of the two-family use, and, in
providing for termination of the grant jf. among other things, the senior Mr. Sforza "ceases to occupy
dwelling," the Board implicitly acknowledged that the senior Mr. Sforza is presently "occupying" the
dwelling. Moreover, the lact that the current two-family use may be '"casual" or "intermittent" does not
disqualify il as a lawful non-conforming use, as that qualifying language in the lapse provision of the
Code is applicable only to the nonconforming use of land and does no1 apply on its face to the
nonconlonning use of a building (Code §198-1 05).
In reviewing the Board's determination, the Court is required to determine whether it has a
rational basis supported by substantial evidence in the record or whether it is arbitrary and capricious
(lji-ah v (jtschig, 98 NY2d 304 [2002]; Matter ojSteiert Enlers., fnc. v City oj"G/en Cove, 90 AD3d 764
[2d Dcpt 2011"]). Since the Board found that petitioner established a nonconforming use, but failed to
determine as a matter offict or as a matter of law that the non-conforming use had lapsed for failure to
carry on the operations of such use actively and continuously for one year, and the evidence in the record
docs not conclusively establish such a lapse, the Court finds that the imposition of the condition under
which the right to continue the two-family use will terminate upon transfer of the property, death of the
life tenant, or ifhe "ceases to occupy the dwelling," is arbitrary and capricious and not supported by the
record (Maffer of McQuade v Zoning Board ofAppeal.~<
of/he Town off fuming/on. 248 AD2d 386 12d
Ocpt 1998)). In light oCthe foregoing, the petition is granted to the extent that the matter is remitted to
the Board for the issuance of a decision granting the application without conditions.
Settle judgment.
PAtA. J. BAlSI£(, JR.
J.S.c.
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