Matter of Sterling Basin Neighborhood Assn. v Zoning Bd. of Appeals of the Vil. of Greenport

[*1] Matter of Sterling Basin Neighborhood Assn. v Zoning Bd. of Appeals of the Vil. of Greenport 2006 NY Slip Op 51910(U) [13 Misc 3d 1219(A)] Decided on October 6, 2006 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2006
Supreme Court, Suffolk County

In the Matter of the Application of Sterling Basin Neighborhood Association and George Limperis, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

against

Zoning Board of Appeals of the Village of Greenport and 123 Sterling, LLC, Respondents.



2006-9063



Atkinson & Heffron, LLP

Attorneys for Petitioners

9280 Nassau Point Road, PO Box 1103

Cutchogue, New York 11935

Prokop & Prokop, Esqs

Attorneys for Respondent ZBA

175 Route 25A

East Setauket, New York 11733

Esseks, Hefter & Angel, LLP

Attorneys for Respondent 123

108 East Main Street, PO Box 279 Riverhead, New York 11901

Jeffrey Arlen Spinner, J.

UPON the following papers numbered 1 to 189 read on this Petition:

Petitioner's Notice of Petition & Supporting Papers 1-44, & Exhibits 1-7 & 8-13;

Respondent 123 STERLING's' Verified Answer & Supporting Papers 45-84 & one unmarked exhibit;

Respondent GREENPORT's Verified Answer & Supporting Papers 85-164, & Exhibits A-F & A;

Petitioner's Reply Affirmation 62-76, & Exhibit 6 & one unmarked exhibit;

it is,

ORDERED, that the application of Petitioner is hereby denied in all respects.

Petitioner moves this Court for a judgment, pursuant to New York Civil Practice Law and Rules (CPLR) Article 78, granting the relief sought by the Petition, that relief more specifically being an Order of this Court directing:

1.(First Cause of Action): That Respondent ZONING BOARD OF APPEALS' (hereinafter ZBA) interpretation is defective in that it failed to apply Greenport Code § 150-22, under which any non-conforming use on the R-2 section of the parcel in question was terminated by operation of law;

2.(Second Cause of Action): That, absent proof of the posited uses on the date they became [*2]non-conforming, Respondent ZBA's decision is not supported by substantial evidence in the Record, is irrational, and arbitrary and capricious, and should be annulled;

3.(Third Cause of Action): That Respondent ZBA's purported findings in the Resolution in question are defective, and hence its decision should be vacated;

4.(Fourth Cause of Action): That Respondent ZBA's findings of non-conforming use(s) is in violation of the definition thereof in the Greenport Code, and hence its decision should be nullified;

5.(Fifth Cause of Action): That, if the Record showed a prima facie case for establishment of the non-conforming uses sought, then Respondent ZBA's failure to apply Greenport Code § 150-20.A, regulating continuation of non-conforming uses, embodies an error of law, and is arbitrary and capricious, and an abuse of discretion;

6.(Sixth Cause of Action): That the claimed non-conforming uses are too insignificant to warrant protection under the Greenport Code;

7.(Seventh Cause of Action): That, given her manifest prejudgment of the very issue before the Respondent ZBA for decision, Mary Bess Philips' failure to recuse herself constitutes an error of law and an abuse of discretion requiring nullification of Respondent ZBA's interpretation;

8.(Eighth Cause of Action): That Respondent ZBA's handling of this matter manifests gross negligence or bad faith which makes Respondent ZBA responsible for Petitioner's costs.

Petitioner STERLING BASIN NEIGHBORHOOD ASSOCIATION (hereinafter SBNA) is a membership organization of more than 50 households with homes or residences on streets, as well as in a condominium complex, neighboring the parcels that are the subject of the underlying application to Respondent ZBA, being as close as immediately adjacent thereto and as far as 900 feet therefrom. SBNA's stated purpose is to safeguard and promote the quality of life of its members with respect to zoning, planning and environmental concerns. Petitioner LIMPERIS, a member of SBNA, is the owner of a residence at 129-131 Sterling Avenue, in the Village of Greenport, his backyard adjoining one of the two parcels that is the subject matter of the underlying application to Respondent ZBA.

Respondent ZBA is a municipal agency duly organized under Village Law of the Laws of the State of New York and the Code of the Village of Greenport. Respondent 123 STERLING, LLC (hereinafter 123) is a New York limited liability corporation, with offices at 20 Crossways Park North, Woodbury, and the owner of the two parcels that are the subject of the underlying application to Respondent ZBA.

Respondent 123 proposes to develop their contiguous two parcels, totaling an area of approximately 1.72 acres, with a project they have titled "Greenport Marina", consisting of a mix of commercial and residential uses, including a 14,480 square foot renovated structure housing eight artist lofts, a frozen scallop processing operation, various marine-oriented retail and office uses, boat racks and related parking therefore. The property consists of two parcels, identified on the Suffolk County Tax Map as parcels numbered 1001-003-05-16.4 (hereinafter Lot 16.4) and 1001-003-05-16.5 (hereinafter Lot 16.5). Eighty percent of the property is zoned Waterfront Commercial, and twenty percent is zoned R-2 Residential, having been so designated since October 28, 1971, when the Village of Greenport adopted their zoning ordinance. All of the R-2 Residentially zoned property is located within Lot 16.4. [*3]

Respondent 123 first applied to the Greenport Planning Board, which after extensive review adopted a resolution on March 31, 2005, approving the application subject to the approval of Respondent ZBA as to the R-2 portion of Lot 16.4, or an interpretation of the zoning code by said Respondent ZBA that such approval was not required, based on the prior non-conforming use of said property. Thereafter Petitioners, together with another party, filed an action under Index No. 05-10801, against the Planning Board and Respondent 123, seeking to annul said resolution, which relief was denied, and said action was dismissed by the Court, in a decision dated March 20, 2006.

Respondent ZBA previously adopted a resolution on September 28, 2005, finding the existence of prior non-conforming uses on the R-2 portion of Lot 16.4, negating the necessity of a grant of relief. On October 27, 2005 Petitioners herein filed an Article 78 and declaratory judgment action against Respondents herein, under Index No. 05-26023, wherein the Court reversed the decision of Respondent ZBA based on their failure to set forth findings supporting their interpretation. Subsequent thereto, Respondent ZBA adopted a resolution on February 22, 2006, setting forth that the use proposed by Respondent 123 on the R-2 portion of Lot 16.4 was pre-existing and non-conforming, based on the following:

1.The marine-related commercial use of the R-2 portion of the property pre-dated the adoption of the Village Zoning Code, rendering it non-conforming in October, 1971;

2.Said marine-related use of the R-2 portion had continued from then until 123's acquisition of the property, without any significant lapse or interruption, and without a significant change in use;

3.Any lapse in the present use was not an interruption which would affect the existence or legality of the pre-existing, non-conforming use, in that said lapse is not due to an intent or action by the owner, and instead is a result of the necessary period during which said owner has filed an application for necessary approvals in order to continue the use and develop the property consistent with the use.

Petitioners then commenced the within action.

As to Petitioners' First Cause of Action, they argue that Respondent ZBA's interpretation is defective in that it failed to apply Greenport Code § 150-22, under which any non-conforming use on the R-2 section of the parcel in question was terminated by operation of law. They cite said code section as stating:

"In any residence district, any nonconforming use of open land, including such uses as parking lot, house trailer, junkyard, or open storage yard for materials or equipment, may be continued for three (3) years after the effective date of this chapter, provided that after the expiration of that period such nonconforming use shall be terminated."

Respondents proffer that the property that is the subject of the underlying application is not, in fact, open land, a necessary condition precedent for termination of a non-conforming use pursuant to said section of the code. They further argue that their position is supported by the existence of structures or buildings on the property, and this position is, in fact, supported by the site plan attached to Petitioners submissions herein.

It is well settled that zoning restrictions, being in derogation of common-law property rights, [*4]should be strictly construed, and any ambiguity should be resolved in favor of the property owner (Matter of Allen v Adami, 39 NY2d 275, 383 NYS2d 565 [1976]). The Court concurs with the argument of Respondents herein, the intention of the Village of Greenport being clear in their choice of the inclusion of the words open land' to distinguish the specific circumstances they sought to address in the adoption of that section of the Village Code.

As to Petitioners' Second Cause of Action, they argue that, absent proof of the posited uses on the date they became non-conforming, Respondent ZBA's decision is not supported by substantial evidence in the Record, is irrational, and arbitrary and capricious, and should be annulled. Petitioners seem to advocate the position that, specifically, the parking use and the boat storage use with its attendant activities, were not legal when the Village of Greenport adopted its Zoning Code in 1971, and therefore cannot be legal, non-conforming uses now. Petitioners offer no proof in support of their position.

Both sides appear to recite the same language in support of their arguments, stating that a pre-existing non-conforming use is a use which existed as a legal use at the time of the adoption of a zoning code or a change in a zoning code which then made the use an illegal or non-conforming use (Toys R Us v Silva, 89 NY2d 411, 654 NYS2d 100 [1996]; Syracuse Aggregate Corp v Weiss, 51 NY2d 278, 434 NYS2d 150 [1980]).

By design, zoning ordinances operate by setting forth allowed uses, and prohibiting anything not so explicitly permitted. In the absence of a zoning code, there exists no prohibition against uses of property, and therefore, prior to the enactment of such a code, all uses would therefore be legal. The Court finds nothing to support the contentions of Petitioners in the within Cause of Action.

As to Petitioners' Third Cause of Action, they argue that Respondent ZBA's purported findings in the Resolution in question are defective, and hence its decision should be vacated, in that said findings are entirely conclusory and lack any reference to the Record evidence to support the holding that pre-existing non-conforming uses existed on the R-2 section of Lot 16.4.

Respondents counter that Petitioners ignore the voluminous evidence in the Record supporting Respondent ZBA's conclusion, including photographs, eyewitness accounts other evidence of the historical status of the properties. Furthermore, they argue that substantial evidence was presented, in the form of testimony at the public hearing, which supports the interpretation rendered by Respondent ZBA, including several long-time village residents and prior owners of the property in question, who testified that the R-2 portion of Lot 16.4 was always use for waterfront commercial uses, including marine industry commercial and industrial uses, which are the same as those proposed at the site by Respondent 123 herein.

The standard of review should properly be whether there was substantial evidence presented and a rational basis for the interpretation which was rendered by the Respondent ZBA (Human Development Services of Port Chester v Zoning Board of Appeals of the Village of Port Chester, 67 NY2d 702, 499 NYS2d 927, 490 NE2d 846 [1985]). A zoning board's determination will ordinarily be upheld if the determination has a rational basis and is supported by the record (see, Ron Rose Group, Inc v Baum, 275 AD2d 373, 712 NYS2d 174, 2000 NY [*5]SlipOp 07420 {2nd Dept 2000]; Matter of Fuhst v Foley, 45 NY2d 441; Conley v Town of Brookhaven Zoning Board of Appeals, 40 NY2d 309; Gold Mark 35 Assocs v Town of Somers, 263 AD2d 488; Perla v Heller, 251 AD2d 419).

The Court concurs that Petitioners merely state, in conclusory terms, that Respondent ZBA's findings are defective, and hence its decision should be vacated, without providing a factual basis for such a ruling.

As to Petitioners' Fourth Cause of Action, they argue that Respondent ZBA's findings of non-conforming use(s) is in violation of the definition thereof in the Greenport Code, § 150-2, and hence its decision should be nullified. Once again, as in their argument in support their Second Cause of Action, Petitioners take the position that the parking use and the boat storage, use with its attendant activities, were not legally existing uses as of the date of adoption of the Village zoning ordinance, October 28, 1971. And, once again, as set forth in this Court's response to said Second Cause of Action, in the absence of a zoning code, there exists no prohibition against uses of property, and therefore, prior to the enactment of such a code, all uses would therefore be legal. The Court finds nothing to support the contentions of Petitioners in the within Cause of Action, as restated.

As to Petitioners' Fifth Cause of Action, they argue that, if the Record showed a prima facie case for establishment of the non-conforming uses sought, then Respondent ZBA's failure to apply Greenport Code § 150-20.A, regulating continuation of non-conforming uses, embodies an error of law, and is arbitrary and capricious, and an abuse of discretion.

Respondents take the position that the uses proposed by Respondent 123 are not an expansion of the prior marine-related commercial and industrial uses that have been located on the property since prior to adoption of the zoning ordinance in 1971, but are rather an overall reduction of said uses. Respondents further argue that evidence in the Record demonstrates that:

1.The R-2 residentially zoned portion of Lot 16.4 has previously been used for, among other things: manufacturing; storage of bait fish; boat building, design, restoration and maintenance; and storage of boats, nets and fishing equipment;

2.The use proposed by Respondent 123 for the R-2 portion of Lot 16.4 is parking during the summer season and boat storage during the winter season; and

3.This demonstrates an overall reduction in the non-conforming uses on the R-2 portion of Lot 16.4.

As pointed out by Respondent 123, the cases cited in Petitioners' Memorandum of Law fail to support the position espoused by Petitioners, since in each of those cases the Court, recognizing its limited judicial review power, actually upheld those ZBAs' determinations regarding legal non-conforming use of property (See, 550 Halstead Corp v Zoning Board of Appeals of the Town/Village of Harrison, 1 NY3d 561, 772 NYS2d 249 [2003]; Clarkson Realty Holding Corp v Scheyer 172 AD2d 521, 567 NYS2d 865 [2nd Dept 1991]; Smith v Board of Appeals of the Town of Islip, 202 AD2d 674, 609 NYS2d 912 [2nd Dept 1994]). Furthermore, Petitioners' cited cases are distinguishable because none of them concern overall reduction of non-conforming uses on the property that is the subject matter of those applications. [*6]

Once again, the Court finds substantial evidence in the Record to support the determination of the Respondent ZBA and nothing to support the position proffered by Petitioners.

As to Petitioners' Sixth Cause of Action, they argue that the claimed non-conforming uses are too insignificant to warrant protection under the Greenport Code, in that said uses were not principal uses, but rather were ancillary to the business of processing oysters, clams and related food products, again concentrating on the boat storage and parking uses, claiming that same are not valuable economic activities that entail substantial investment built up over years.

In support of their position, Petitioners cite People v Miller (304 NY 105, 106 NE2d 34 [Ct of App 1952]), but Respondents point out that, what was too insignificant to warrant protection of the non-conforming use in that matter was maintenance of pigeons, as a hobby. In fact, in its decision, the Court states it is the law of this state that non-conforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance (See, People ex rel Ortenberg v Bales, 250 NY 598, 166 NE 339; Caponi v Walsh, 228 AD 86, 238 NYS. 438;New York State Investing Co v Brady, 214 AD 592, 212 NYS 605; Pelham View Apartments v Switzer, 130 Misc 545, 224 NYS 56; People v Stanton, 125 Misc 215, 211 NYS 438; cf City of Buffalo v Chadeayne, 134 NY 163, 31 NE 443). The Court then goes on to state that the enforcement of a zoning regulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstantial (See, People v Kesbec, Inc, 281 NY 785, 24 NE2d 476, motion for reargument denied 282 NY 676, 26 NE2d 808; People v Wolfe, 272 NY 608, 5 NE2d 355, motion for reargument denied 273 NY 498, 6 NE2d 422; Rice v Van Vranken, 255 NY 541, 175 NE 304, affirming 225 AD 179, 232 NYS 506; Fox Lane Corp v Mann, 243 NY 550, 154 NE 600, affirming 216 AD 813, 215 NYS 334; People ex rel Rosevale Realty Co v Kleinert, 237 NY 580, 143 NE 750; Caponi v. Walsh, 228 AD 86, 238 NYS 438).

This Court concurs with Respondents that there is nothing insignificant, relatively light or insubstantial about the need for parking and storage of boats in regard to the use (non-conforming or otherwise legal) of property for commercial marine-related activities, and same certainly cannot be classified as a mere hobby.

As to Petitioners' Seventh Cause of Action, they argue that, given her manifest prejudgment of the very issue before the Respondent ZBA for decision, Mary Bess Philips' failure to recuse herself constitutes an error of law and an abuse of discretion requiring nullification of Respondent ZBA's interpretation, in that she made public comments on the record (as a member of the Planning Board, when this matter was before that board, prior to her appointment as Chairman of the Respondent ZBA), and in said capacity, voted in favor of site plan approval for the property in question herein, and voted against making such approval conditioned on an interpretation of Respondent ZBA.

Respondent ZBA Chairman Philips responds in her affidavit that, as a member of the Planning Board she was permitted to speak her opinion, and by doing so did not prejudice the actions of the Respondent ZBA, and that, in fact, she did not cast a vote as a member of Respondent ZBA when the interpretation was voted upon, and that said interpretation was adopted without her [*7]vote.

Respondents proffer the position that Philips vote as a member of the Planning Board was not sufficient to cause her to remove or disqualify herself firm the Respondent ZBA proceeding, and that Petitioners allegations against her are conclusory and do not purport sufficient grounds for the Court to reverse or vacate Respondent ZBA's determination herein.

The law is clear that a complaining party cannot merely allege the conflict, but must demonstrate a factual basis that the actions of the board were prejudiced, and that the determination of the board was affected (See, Willett v Dugan, 161 AD2d 512, 557 NYS2d 465, appeal denied 76 NY2d 708, 560 NYS2d 990 [3rd Dept 1990]). Furthermore, complainant must prove that the action that was alleged to have been improper permeated the board so as to make the decision or action unfair (See, Alexander v State Board of Professional Misconduct, 287 AD2d 918, 731 NYS2d 797 [3rd Dept 2001]; Khan v New York State Department of Health, 794 NYS2d 145 {17 AD3d 938} ; Moore v State Board of Professional Misconduct, 358 AD2d 837, 686 NYS2d 129 [3rd Dept 1994]). Still further, New York Courts have ruled that the fact that a member of a particular appeal level board who previously served on the trial or hearing level board for the same matter is not disqualified from considering or rendering a decision on the appeal board (See, Willett v Dugan, supra , and Agosh v Town of Cicero Board of Assessment Review, 150 Misc 2d 756, 570 NYS2d 876 [NY SupCt, 1991]).

Petitioners have offered nothing beyond conclusory allegations in support of their position, and the Court concurs with Respondents that nothing herein had been alleged that would support the intervention of the Court in the lawful decision of Respondent ZBA.

As to Petitioners' Eighth Cause of Action, they argue that Respondent ZBA's handling of this matter manifests gross negligence or bad faith which makes Respondent ZBA responsible for Petitioner's costs. Given that this Court has not found merit in the other seven causes of action proffered by Petitioner, there is no foundation upon which to grant the relief requested in this final request for relief in the underlying Petition.

It is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (See: Janiak v. Planning Board of the Town of Greenville, 159 AD2d 574, 552 NYS2d 436 [2nd Dept], appeal denied, 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889 [1990]; Mascony Transport and Ferry Service v. Richmond, 71 AD2d 896, 419 NYS2d 628 [2nd Dept 1979], aff'd, 49 NY2d 969, 428 NYS2d 948, 406 NE2d 803 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see, Castle Properties Co. v. Ackerson, 163 AD2d 785, 558 NYS2d 334 [3rd Dept 1990]). Furthermore, the determination of a reviewing board must be sustained if it is rational and supported by substantial evidence, even if the reviewing Court would have reached a different result (See, PMS Assets, Ltd v Zoning Board of Appeals of Village of Pleasantville, 98 NY2d 683, 774 NE2d 204, 746 NYS2d 440, 2002 NY SlipOp 05512 [Ct of App, 2002]).

For all the reasons stated herein above, it is, therefore, [*8]

ORDERED, that the application of Petitioner for a judgment, pursuant to CPLR Article 78, granting the relief sought by the Petition, that relief more specifically being an Order of this Court directing:

1.(First Cause of Action): That Respondent ZONING BOARD OF APPEALS' (hereinafter ZBA) interpretation is defective in that it failed to apply Greenport Code § 150-22, under which any non-conforming use on the R-2 section of the parcel in question was terminated by operation of law;

2.(Second Cause of Action): That, absent proof of the posited uses on the date they became non-conforming, Respondent ZBA's decision is not supported by substantial evidence in the Record, is irrational, and arbitrary and capricious, and should be annulled;

3.(Third Cause of Action): That Respondent ZBA's purported findings in the Resolution in question are defective, and hence its decision should be vacated;

4.(Fourth Cause of Action): That Respondent ZBA's findings of non-conforming use(s) is in violation of the definition thereof in the Greenport Code, and hence its decision should be nullified;

5.(Fifth Cause of Action): That, if the Record showed a prima facie case for establishment of the non-conforming uses sought, then Respondent ZBA's failure to apply Greenport Code § 150-20.A, regulating continuation of non-conforming uses, embodies an error of law, and is arbitrary and capricious, and an abuse of discretion;

6.(Sixth Cause of Action): That the claimed non-conforming uses are too insignificant to warrant protection under the Greenport Code;

7.(Seventh Cause of Action): That, given her manifest prejudgment of the very issue before the Respondent ZBA for decision, Mary Bess Philips' failure to recuse herself constitutes an error of law and an abuse of discretion requiring nullification of Respondent ZBA's interpretation;

8.(Eighth Cause of Action): That Respondent ZBA's handling of this matter manifests gross negligence or bad faith which makes Respondent ZBA responsible for Petitioner's costs;

is hereby denied in all respects, and the Petition herein is hereby dismissed.

Dated:Riverhead, New York

October 6, 2006

______________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.

TO: