Matter of Jacobsen v Town of Bedford Zoning Bd. of Appeals

[*1] Matter of Jacobsen v Town of Bedford Zoning Bd. of Appeals 2007 NY Slip Op 52600(U) [24 Misc 3d 1217(A)] Decided on July 31, 2007 Supreme Court, Westchester County Zambelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2007
Supreme Court, Westchester County

In the matter of the Application of Alfred L. Jacobsen, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

Town of Bedford Zoning Board of Appeals, MRS. HAZEL NOURSE, MR. PHILIP MCGOVERN, MS. LISA SPANO, MR. PETER MICHAELIS, MR. DAVID MENKEN, and GHP BEDFORD LLC a/k/a GHP REALTY, Respondents.



06/023894



Alfred L. Jacobsen III

Petitioner Pro Se

A.L. Jacobsen & Associates LLP

15 Court Road

Bedford, New York 10506

Shamberg Marwell Davis & Hollis, P.C.

Attorneys for the Respondent GHP Bedford LLC 55 Smith Avenue

Mount Kisco, New York 10549

Attn: John S. Marwell, Esq.

Keane & Beane, P.C.

Attorneys for Respondent Town of Bedford, Zoning Board of Appeals

445 Hamilton Avenue - Suite 1500

White Plains, New York 10601

Attn: Joel H. Sachs, Esq.

Barbara G. Zambelli, J.

Upon the foregoing papers [FN1] it is ordered and adjudged that this petition is disposed of as follows:

The petitioner is the owner of property located at 15 Court Road, Bedford, New York. Respondent GHP Bedford LLC a/k/a GHP Realty ("GHP") is the owner of property located at 633-747 Old Post Road, Bedford Village, New York and which is designated on the Town of Bedford Tax Map as one tax parcel known as Section 84.07, Block 2, Lot 5 ("the Property"). A portion of the Property borders Court Road, and the remainder of the parcel borders Route 22. The Property is located in two zoning areas - Residence Two-Acre ("R-2A") and Neighborhood Business ("NB"). On GHP's Property is the Bedford Playhouse / movie theater, retail stores and a residential apartment complex. Also on GHP's Property are two lots, one of which is the subject of this proceeding, which [*2]have been designated by the parties as "Lot A" and "Lot B" for convenience of reference. Lot A is accessed via Court Road and is on that part of GHP's Property zoned NB. Lot B, which is in the area zoned R-2A, is accessed via Route 22.

Petitioner brings this proceeding as an attorney appearing pro se to challenge the November 9, 2006 determination of the Respondent Town of Bedford Zoning Board of Appeals ("ZBA") which found that the use of Lot B as a parking lot was a prior, legal nonconforming use and may continue to operate as a commercial parking lot within the R-2A district. By Decision, Order and Judgment dated March 30, 2007, this Court denied Respondents' Motions to Dismiss the Petition on the basis that petitioner lacked standing to challenge the decision of the ZBA as to the status of Lot B.

This matter originally came before the ZBA as a result of the Town Building Inspector issuing a Stop Work Order to GHP for constructing a parking gate at Lot A in the Town right of way on Court Road. The Stop Work Order alleged that such construction was a "parking lot expansion without site plan approval" and therefore a violation of Section 125.86 of the Town Bedford Zoning Code (the "Code")[FN2]. On December 27, 2005, GHP appealed the Building Inspector's determination and sought an interpretation that site plan approval was not required. At the first ZBA hearing on February 1, 2006, the Building Inspector, in response to an inquiry by the ZBA chairperson, indicated that he interpreted the Stop Work Order to apply to both Lots A and B. (CR, Exhibit 43, p. 14). The ZBA addressed whether an expansion of an existing use occurred by charging for parking which was once free on those Lots. After further public hearings on March 8, 2006 and September 6, 2006, at a public hearing on October 11, 2006, the ZBA severed the application so that Lot A and Lot B would be considered separately. The ZBA indicated that the October 11, 2006 meeting would discuss Lot B and that Lot A would be discussed at the next ZBA meeting. After the severance, GHP began negotiations with the Town of Bedford regarding Lot A and subsequently entered into a lease with the Town to use of Lot A as a municipal parking lot. As to Lot B, the ZBA focused its inquiry as to whether the use of that lot as a parking lot was a prior, legal non-conforming use in a residential zone and if so, whether charging therefore was a change of use. After public hearings, the ZBA ultimately determined on November 9, 2006 in Resolution No.11-06 that Lot B has been "continually utilized as a parking lot which supports commercial uses in the Village" and that its use as a commercial parking lot could continue as a prior, legal non-conforming use in a residential zone (Certified Record ("CR"), Exhibit 39).

Petitioner challenges this determination on the basis that it is arbitrary, capricious and illegal and not supported by substantial evidence. Petitioner argues that the current use of Lot B is not a pre-existing non-conforming use which pre-dates the 1929 enactment of the Code and that the use of the Lot for paid parking constitutes a change of use requiring site plan approval by the town planning board.[FN3] [*3]

Respondents argue that the ZBA decision in regard to Lot B was legal, rational and based upon documents demonstrating that the use of the Lot as a parking lot was a prior legal non-conforming use and that charging for parking does not constitute a change of use. Respondents point to an August 29, 2006 letter to the ZBA from GHP, which attaches several documents that GHP submits supports the finding that the use of Lot B as a parking lot is a prior legal nonconforming use in a residential district (CR, Exhibit 29). In this letter, GHP points to 1) a 1947 Certificate of Occupancy issued for "Apartments, Stores, Motion Picture Theatre" located on the Property and which identifies the zoning district at the time as being NB; 2) a survey of the property from the 1960's depicting the Lot B parking area that was attached as an exhibit to a 1987 building permit application by the Bedford Village Playhouse Associates; 3) a 1983 building permit application granted by the Bedford Building Inspector and a certificate of compliance for the "Division of Existing Theatre into Two Theatres"; 4) a building permit application granted by the Building Inspector in 1998 and a certificate of compliance for the Meeting House Restaurant on the Property; 5) a building permit application granted by the Building Inspector in 1999 on the property for an "ice cream parlor" use, and 6) Town tax assessment records for the property which GHP contends is evidence that sufficient off-site parking existed to satisfy the parking requirements for these establishments. GHP submits that these six documents demonstrate that Lot B had existed on the Property since at least 1947 providing necessary off-street accessory parking to the other business and residences, and thus establishes a prior, legal nonconforming use.

Respondents note that building permits and certificates of occupancy could not have been issued unless the Property complied with all laws and ordinances pertaining thereto, including the off-street parking requirements set forth at §125-100 of the Code, which provides that "[n]o certificate of occupancy or certificate of compliance shall be issued for any structure or land use until the required off-street parking and loading spaces have been established." The ZBA also notes that §125-124(B) of the Code requires that "[n]o building permit or certificate of occupancy shall be issued by the Building Inspector except where the provisions of this chapter and all other laws and ordinances affecting the property involved are complied with." Respondents thus conclude that because various building permits and certificates of occupancy were issued for the Property since 1947, it was rational for the ZBA to determine that the Property must have had the necessary accessory parking as required by the Code, and thus, that the use of Lot B as a parking lot is a prior, legal nonconforming use. The ZBA also noted that in reaching its decision, it conducted a "thorough [*4]examination" as to the historic uses of Lot B, which examination existed of all members of the ZBA visiting the subject site, holding multiple meetings on the application and considering comments made by both GHP and members of the public, including petitioner. For these reasons, the ZBA submits that its decision regarding Lot B was rational and not arbitrary or capricious.

As an initial matter, it is black letter law that judicial review of administrative action is limited to the record made before the administrative agency (see Montalbano v. Silva, 204 AD2d 457, 458 (2d Dept. 1994); Citizens Against Illegal Zoning v. Zoning Bd. of Appeals fo the Town of Rochester, 276 AD2d 897, 899 (3d Dept. 2000)). In support of his motion, petitioner cites to documents and other information (including hearsay conversations with various town officials) not contained in the certified record submitted to the Court. As these documents and information to which petitioner refers were not before the ZBA and are not contained in the certified record, this Court will not consider them in the review of the ZBA action at issue here.

The scope of judicial review of a zoning board determination is limited to an examination of whether the determination has a rational basis and is supported by substantial evidence (Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers, 238 AD2d 417, 418 (2d Dept. 1997)). If substantial evidence exists to support the determination, a reviewing court may not substitute its judgment for that of the ZBA even if the court might have decided the matter differently (Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, 5 AD3d 779, 780 (2d Dept. 2004); Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra). It is not for the reviewing court to weigh the evidence or reject the choice made by the zoning board where the evidence conflicts and room for choice exists (Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra, citing Matter of Toys "R" Us v. Silva, 89 NY2d 411, 424 (1996)).

It is within the province of the zoning board to determine the specific application of a term of a zoning ordinance to a particular property (Matter of Carrier v. Town of Palmyra Zoning Bd. of Appeals, 30 AD3d 1036, 1038 (4th Dept. 2006). Thus, the determination of whether a particular use is a continuation of or a change in non-conforming use is a factual determination for the ZBA, and the determination must be upheld if it is neither irrational nor unreasonable (Matter of Aboud v. Wallace, 94 AD2d 874, 875 (3d Dept. 2001)). A zoning board's interpretation of a zoning ordinance must be given "great weight and judicial deference so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute" (Assoc. of Friends of Sagaponack v. Zoning Bd. of Appeals of the Town of Southampton, 287 AD2d 620, 621 (2d Dept. 2001), citing Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 62 NY2d 539, 545 (1984)).

A nonconforming use is a use of land which lawfully existed before a zoning ordinance was enacted and which is maintained after the effective date of the ordinance even though it does not comply with use restrictions which apply to the area where it exists (City of New York v. Bilynn Realty Corp., 118 AD2d 511, 513 (1st Dept. 1986)). Nonconforming uses which are in existence when a zoning ordinance is enacted will be permitted to continue, notwithstanding the contrary provisions of the ordinance (Matter of Keller v. Haller, 226 AD2d 639, 640 (2d Dept. 1996) citing People v. Miller, 304 NY 105, 107 (1952); Spilka v. Town of Inlet, 8 AD3d 812, 814 (3d Dept. 2004)). The burden is on the property owner to establish that the allegedly pre-existing use was legal prior to the enactment of the prohibitive zoning ordinance which purportedly rendered it nonconforming [*5](Matter of McQuade v. Zoning Bd. of Appeals of the Town of Huntington, 248 AD2d 386 (2d Dept. 1998); Matter of Keller v. Haller, supra; Incorporated Village of Old Westbury v. Alljay Farms, Inc., 100 AD2d 574 (2d Dept. 1984).

This Court finds that the decision of the ZBA finding that use of Lot B as a commercial parking lot to be a prior, legal non-conforming use to be rational and supported by substantial evidence in the record. Contrary to petitioner's contentions, GHP did not have to establish that Lot B was used as a parking lot at the time the Town of Bedford first enacted its zoning code in 1929. Rather, this Court agrees with respondents that the burden was on GHP to establish that the use of Lot B as a commercial parking lot was a prior, legal non-conforming use as of the time that portion of the property was zoned R2-A. While petitioner claims that the property was always zoned R-2A, there is no evidence in the record in support of that contention. In contrast, GHP, who as the owner of the property bears the burden of establishing the prior non-conforming use, submitted documentation to the ZBA in support of its position that Lot B was once zoned NB and served as an accessory use providing off-street parking for the various other businesses and residences on the Property. Specifically, respondent points to the 1947 Certificate of Occupancy attached as Exhibit 1 to the August 29, 2006 letter of John Marwell (CR, Exhibit 1). As this document refers to the Property as being zoned NB, respondents contend that this establishes that at least as of 1947, Lot B was zoned NB, and therefore that the zoning was not changed to R2-A until sometime thereafter. While petitioner attacks the 1947 certificate of occupancy for having a tax map designation that does not correspond to the existing designation, the ZBA's decision to accept it as applying to the Property in question cannot be said to be arbitrary and capricious when the record is viewed as a whole. The document contains other identifying information on it, such as the description of the subject property as having "Apartments, Stores [and a] Motion Picture Theatre" which comports with the general description of the Property at issue here. This information, coupled with the ZBA members' personal familiarity with the Property over a number of years, as set forth in the hearing minutes of the meetings held on GHP's application (CR, Exhibit 48), provides a rational basis for the ZBA's decision to accept the document as proof that Lot B was once zoned NB prior to being re-zoned R-2A.

The remainder of the documentation set forth in the August 29, 2006 letter submitted by GHP to the ZBA (CR, Exhibit 29) provides a rational basis for the ZBA's decision that Lot B's operation as a parking lot that supported commercial uses in the Village was a prior, legal non-conforming use in an R2-A zone and that the use of Lot B as such was continuous since at least 1947. Since 1947, several certificates of occupancy and building permits have been issued for the Property which includes Lot B (CR, Exhibit 29 - August 29, 2006 letter of John Marwell, with Exhibits 1-6). Under §125-124(B) of the Code, no certificates of occupancy could have been issued for the Property unless sufficient accessory off-street parking was provided as required by Sections 125-100 and 125-101.[FN4] [*6]

While petitioner notes that some of the documents referred to by GHP in its August 29, 2006 letter refer to tax map lot designations other than that currently assigned to the Property, for the reasons noted above, this Court cannot say that it was arbitrary and capricious for the ZBA to accept them as evidence of the status of Lot B. Despite petitioner's contentions, both Exhibits 4 and 5 to that letter contain the proper current tax map designation for the Property, so it is clear that those documents are for the entirety of the Property, including Lot B. Also contained within Exhibit 2 of that letter is a map which respondent GHP contends is from a survey taken in the 1960's which depicts Lot B as a parking area. Even documentation submitted by petitioner to the ZBA shows a car parked on Lot B in 1982 (CR, Exhibit 24 - aerial photograph of Property). This documentation, when considered with the record as a whole, provides a rational basis for the ZBA's determination.

Petitioner further argues that, aside from the question of parking in general, charging for parking which was once free constitutes a change of use requiring site plan approval. Respondents assert that "parking is parking"; thus, so long as Lot B has a prior, legal nonconforming use as a parking lot providing parking for other business and residences on the Property, it is, for ZBA purposes in determining the issue of prior nonconforming use, irrelevant whether parking is offered for free or for a fee. As whether a change of use has occurred is a factual determination for the ZBA (Matter of Aboud v. Wallace, supra), it cannot be said that, based upon the information in the record, the decision here was arbitrary and capricious. After reviewing GHP's submissions, it was reasonable for the ZBA to determine that to now charge for parking which had once been free did not change the essential character of Lot B as a parking lot. Thus, the decision of the ZBA in finding that charging for parking was not a change in use was not irrational or arbitrary and capricious.

In sum, petitioner largely attacks the weight and quality of the evidence relied upon by the ZBA in finding that GHP's use of Lot B as a commercial parking lot was a prior, legal non-conforming use in a residential zone. However, in this Article 78 action, this Court may not weigh the evidence and substitute its own judgment for that of the ZBA (Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, supra); Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra). Based upon a review of the record as a whole, this Court finds that the ZBA's determination that GHP's use of Lot B as a commercial parking lot in a residential district was a prior, legal non-conforming use was rational.

Petitioner's remaining contentions are without merit. Petitioner further alleges that the ZBA inappropriately shifted the burden of proof to the town to demonstrate that the use of Lot B as a commercial parking was not a prior, legal nonconforming use. Petitioner bases this allegation on a comment made at the October 11, 2006 hearing by ZBA Chairwoman Nourse wherein she stated that there was "no evidence to prove that [using Lot B as a parking lot] was not a pre-existing nonconforming use." (CR, Exhibit 48). However, the transcript of the February 1, 2006 hearing contains a statement by Chairwoman Nourse that "the burden of proof is on [GHP]'s shoulders." (CR, Exhibit 43, [*7]p. 22). Merely stating that there is no evidence in support of petitioner's proposition is not the same as shifting the burden of proof, particularly given that there is proof in the record that the ZBA appropriately indicated that the burden of proof was on GHP. Indeed, the wording of the Resolution itself demonstrates that the ZBA did not place the burden of proof on anyone but GHP, noting that GHP had provided the ZBA with "extensive materials indicating that since 1947, Lot B had been continually used as a parking lot which supports commercial uses in the Village." (CR Exhibit 39).

Lastly, petitioner contends in his Reply to Respondents' Answers that the ZBA and the Town failed to produce documents pursuant to his Freedom of Information Act ("FOIL") request of December 4, 2006. He also requests, in the "Wherefore" clause of that Reply, that the Court provide him with various forms of relief not previously requested in his original petition [FN5]. As these issues were improperly raised by petitioner for the first time in his reply papers, this Court declines address petitioner's arguments here (see Town of Pleasant Valley v. Town of Poughkeepsie Planning Board, 289 AD2d 583, 584 (2d Dept. 2001); Crawmer v. Mills, 239 AD2d 844, 845 (3d Dept. 1997)).

For the reasons stated above, the petition is dismissed.

This decision constitutes the Order and Judgment of the Court.

Dated:White Plains, New York

July, 2007

______________________________

Barbara G. Zambelli

A.J.S.C.

Donna Minort,

Chief Clerk

Elizabeth Pace,

Deputy Chief Clerk

Footnotes

Footnote 1:Both respondents submitted "Sur-Reply" affidavits and petitioner submitted a "Sur-sur Reply" affidavit; however, as such papers are not provided for in the CPLR, the Court permitted the parties to submit them, but advised that they might not be considered. In fact, none of the parties' "sur-replies" or "sur-sur-replies" were ultimately read by the Court.

Footnote 2:Section 125-86(1)(A) provides, in relevant part, that "[a]pproval of a final site plan by the Planning Board is required for the development or redevelopment of any property or structure for a new use, the expansion or relocation of any existing use or any change of use of a property or structure."

Footnote 3:Petitioner also attempts to challenge the ZBA's determination to divide the GHP application into two as to Lot A and Lot B and to address each Lot separately, and the Town of Bedford's subsequent decision to lease Lot A from GHP and operate it as a municipal parking lot, thereby exempting Lot A from site plan approval (see Town of Bedford Zoning Code (hereinafter "the Code"), §125-86 (1)(A) (exempting municipal uses from site plan approval)). However, the only decision of the ZBA that is before this Court in this action is the November 9, 2006 resolution which deals solely with Lot B (see Petition, ¶2 (describing Property and stating "which parcel was the subject of Resolution #11 by the [ZBA] . . filed November 9, 2006, hereinafter referred to as "the Decision", is hereby appealed"); "Wherefore" clause of Petition ("Petitioner prays that the decision of the Board of Appeals of the Town of Bedford, State of New York, be reviewed, and that said determination and decision of said Board be annulled")). In any event, before the ZBA was able to address Lot A, GHP decided to enter into a lease with the Town for Lot A, which rendered moot ZBA action in regard to that lot by virtue of §125-86(1)(A) of the Code. Moreover, petitioner's action here is against GHP and the ZBA, not the Town itself, which was the party who entered into the lease with GHP (see first paragraph of Petition stating "in this proceeding under and pursuant to Article 78 of the Civil Practice Law and Rules, to review the determination of the respondents herein, constituting the Zoning Board of Appeals of the Town of Bedford"). This Court therefore only addresses the ZBA resolution in regard to Lot B in this action.

Footnote 4:Article X, Section 125-100 of the Code provides, in relevant part, that "[a]ll structures and land uses shall be provided with a sufficient amount of off street parking to meet the needs of persons employed at or making use of such structures or land uses . . .but not less than the minimum standards of this Article." As the respondents established that Article X of the Code was enacted in 1983, and as the evidence presented to the ZBA established a reasonable basis for the conclusion that Lot B existed as a parking lot since 1947, the Property would not have to conform to the minimum standards of Article X, but rather would fall under Section 125-101, which exempts pre-existing property from the parking space requirements of the Article, but states, in relevant part, that "any parking facilities ... now existing to serve such structures or uses shall not be reduced ...."

Footnote 5:Specifically, petitioner requests in the "Wherefore" clause of his Reply that documents not contained in the certified record and not before the ZBA be made part of the record; that "this Court determine that the Town Attorney and members of the Zoning Board and other Town Officials and employees did not fulfil their duties and obligations as public employees as mandated by law"; that "this Court determine that the Respondent's [sic] GHP Realty and Town of Bedford acted and conducted a course of conduct which violates the law of the Town of Bedford and State of New York" and that "this Court determine that the failure to provide documents and Memorandum pursuant to the Freedom of Information Ace it [sic] illegal and a violation of law."