Cohen v Village of Irvington, Zoning Bd. of Appeals
Annotate this CaseDecided on November 30, 2010
Supreme Court, Westchester County
Barbara Cohen and H. RODING COHEN, Petitioners, In a proceeding pursuant to ARTICLE 78 of the CPLR
against
Village of Irvington, Zoning Board of Appeals AND RENATO RANCIC, Respondents.
14474/10
John P. Colangelo, J.
Petitioners Barbara Cohen and H. Roding Cohen ("Petitioners" or "the Cohens") bring this Article 78 Proceeding against respondents Village of Irvington and Renato Rancic ("Respondents") pursuant to CPLR 7801 and 7803 and New York Village Law § 7-712 C. Petitioners seek to vacate and annul the decision of the Respondent the Village of Irvington Zoning Board of Appeals (the "Zoning Board") dated May 3, 2010 (the "Decision"). This Decision granted the applicant, Respondent Renato Rancic ("Rancic"), a one-year extension of a frontage variance that was first issued in 1986 (the "1986 Variance"). Generally, a frontage variance is a part of the property that abuts a street or highway, and is necessary in order for building construction to take place on that site. (See Town Law § 267-b). As both parties concede, a frontage variance is required in the Village of Irvington in order for a resident to erect a house under the circumstances present in the instant case. Rancic purchased the instant parcel of land located in the Village of Irvington ("Irvington" or the "Village") with the intention of building a house on it. Rancic's application for the frontage variance extension was initially denied, then later granted by the Zoning Board.
Respondents oppose the Petition which would, in effect, reverse the Zoning Board's decision,
and seek a judgment dismissing the Petition. In essence, Respondents maintain that an easement
granted in or about 1986 to permit access to the property that is now Rancic's (the "Bridge Street
Easement") remains valid and is the only way to access their landlocked property. They seek to
affirm the decision of the Zoning Board. The frontage variance that Rancic seeks faces the "road"
that is the Bridge Street Easement; in other words, the front of the house which he intends to
build would face the Bridge Street Easement, the sole means of ingress and egress [*2]from his land to a Village street.
Factual and Procedural Background
The fulcrum of this proceeding is the parcel of land now owned by Respondent Rancic that
was once part of a common piece of property formerly owned by Bernard Kayden. In or about
1986, Kayden sold his land in four parcels, one of which was originally conveyed to a
predecessor in interest of Rancic. Upon the initial conveyance, Kayden retained an easement - -
now called the Bridge Street Easement and previously called the "Traveled Way" - - over a
roadway running through all four parcels, to be used by their owners for access to their respective
properties should any house be built on those parcels. Rancic, as the current owner of one of
those parcels, maintains that in order to build a house on his property, he requires both a valid
easement and frontage variance.
Petitioners concede that a frontage variance was granted on June 10, 1986 to
Rancic's predecessor in interest. However, Petitioner contends that pursuant to the Village of
Irvington Code § 224.97(B)(4), the variance expired on June 10, 1987. Village Code §
224.97(B)(4) states that "unless construction or use is commenced within one calendar year from
the date of granting the variance, such variance shall become null and void without further
hearing or action by the Board of Appeals." (Emphasis added). Section 224-98 (H) of the
Village Code further states that "[a]ll provisions of this chapter related to the Board of Appeals
shall be strictly construed". Therefore, Petitioners contend, the Zoning Board acted beyond the
scope of its authority in granting the extension of the frontage variance. However, Respondents
argue that the recent extension of the frontage variance was in accordance with the portion of §
294.97(B)(4) that allows for "further . . . action by the Board of Appeals" and therefore the
Zoning Board had the authority under the Code to extend the variance.
The Bridge Street Easement and the Frontage Variance
On November 9, 2009, Rancic petitioned the Zoning Board for an interpretation of the original frontage variance. Petitioners opposed this application at the Zoning Board meeting on November 24, 2009. The Zoning Board adjourned the matter until the validity of the Bridge Street Easement could be determined. Rancic made a second application on March 1, 2010, which was timely opposed by Petitioners on March 23. The matter was once again adjourned. A final hearing was held on April 27, 2010, at which time a decision was finally rendered: the Zoning Board extended the frontage variance based upon Town Attorney Patrick J. Gilmartin's letter stating that the Bridge Street Easement was a valid and existing easement.
The Zoning Board thus correctly reasoned that the decision of whether to extend the frontage variance turned first upon the question of whether the Bridge Street Easement is valid and existing. As the Zoning Board recognized, the Second Department previously decided, in the context of an adjoining landowner who sought to take the advantage of it, that the Bridge Street Easement was valid and ran with the land. In Mackie v. Martucci, 39 AD3d 820, 821 (2d Dept. 2007), defendant Martucci owned one of four parcels originally conveyed by the common owner, Bernard Kayden. Martucci was granted summary judgment on his counterclaim declaring that he had an express easement, granted by Kayden to Martucci's predecessor in interest, along [*3]the same private way at issue here. In its decision, the Second Department referred to all four parcels conveyed by Kayden - - including the parcel now owned by Rancic - - and stated that an easement "for the benefit of any house that was or might be built on those parcels of land" remained for Kayden and subsequent owners of the parcels to enjoy. As the Court held,
"On that branch of their motion which was for summary judgment on their counterclaim for a judgment declaring that Katherine Martucci had an easement created by express grant over the portion of the Traveled Way that was on the Mackies' property, Frank Martucci and Katherine Martucci demonstrated their entitlement to judgment as a matter of law by providing evidence establishing that when Kayden conveyed the abovementioned parcels of land, he retained an easement over all of the Traveled Way [the Bridge Street Easement] for the benefit of any house that was or might be built on those parcels of land, and that Katherine Martucci shared that easement (see Green v. Mann, 237 AD2d 566, 566-567, 655 NYS2d 627 [1997]). Since, in response, the Mackies failed to raise a triable issue of fact, the court correctly granted that branch of the Martucci's motion."
The Court thus found that the Martuccis were not committing a trespass on the Mackie land whenever they utilized the Bridge Street Easement because they were entitled to do so. The intentions of the previous landowner, Kayden, were made clear and thus verified in this Second Department decision: the Bridge Street Easement remains valid for anyone who lives on the parcels and has a house or one day might build a house on any of the parcels. Since Rancic, as the current owner of one of those "parcels of land" stands in the same position as Martucci with respect to the same easement, the same result must perforce obtain as far as the validity of the Bridge Street Easement is concerned.
Indeed, even assuming arguendo that no express easement had been granted, an easement by necessity might well arise, since absent an easement, access to Rancic's land would prove impossible.In Meyer v. Stout, 45 AD3d 1445, 1447 (4th Dept. 2007), the court held that an "easement by necessity arises where a parcel of land is divided and either the land conveyed or the land retained is landlocked." Rancic's parcel would be landlocked if the Bridge Street Easement were to be deemed invalid. Moreover, the Rancics purchased their property for 1.5 million dollars at an auction at the County Courthouse and the deed contained language of the easement in which the Rencics relied when they purchased the property. The Bridge Street Easement stated that "[t]here is hereby reserved and granted to Kayden, heirs, executors, administrators, successors, and assigns a perpetual easement . . ." The original landlowner, Kayden, thus intended that further landowners would be able to access their property via the Bridge Street Easement. If there were no easement, then the landlowners would not be able to gain entry to their property, or erect a structure on it. (See Antononopoulous v. Postal Tel. Cable Co. 261 A.D. 564, 568 (2d Dept. 1941). ("An easement by necessity may only arise as a consequence of and in accord with the presumed intention of the parties.").
The question remains, however, as to whether the 24 year old frontage variance was lawfully renewed. In analyzing this issue, the Third Department case of In the Matter of American Red Cross v. Board of Zoning Appeals of the City of Ithaca, 161 AD2d 878, 879 (3rd Dept. 1990) proves instructive. In Red Cross, the issue of the expiration of a variance was addressed. The Court reasoned that unless there has been a material change in circumstances [*4]surrounding the property between the time the initial variance was issued and the present, reissuance should be granted. As the Court stated: "Although respondent [Zoning Board] may deny a reapplication for a variance upon the expiration of a time limitation imposed thereon. . . . such denial must be premised on a change in the relevant conditions surrounding the application. . . . Absent such material charges, respondent is bound to its earlier decision. . . . and may not refuse a variance previously granted on a prior finding of practical difficulty."(Citations omitted).
In the instant case, there has been no change in any material condition surrounding Rancic's frontage variance application. Petitioner argues that the Mackies (a current owner of one of the four parcels originally sold by Kayden) have built a home on their property and that the parcels have all been up-zoned to an IF-60 District. However, these changes are not relevant to the Rencic's variance application. The parcels of land were originally located in an IF-40 District which meant that a minimum of one-acre was required for the erection of a home. The up zoning to an IF-60 district changed the minimum to one and one half acres. This change is not relevant here because each parcel of land on the original Kayden property - - and Rancic's now - - was larger than two acres and therefore the up zoning had no substantial effect on the land or renewal of the variance. The construction of the Mackie's home is also of no moment; such house had no affect on the Rancic land and therefore should play no role in the extension of the variance.
As the Second Department held in Mastroianni v. Strada, 173 AD2d 827 (2d Dept. 1991), the standard of review in an Article 78 proceeding is whether the action of the governmental body at issue was arbitrary and capricious. Moreover, under this arbitrary and capricious standard of review " the proper test is whether there is a rational basis for the administrative orders." Matter of Pell v. Board of Education, 34 NY2d 222, 231 (1974), quoting Matter of Colton v. Berman, 21 NY2d 322, 329. The Zoning Board of Appeals correctly found a rational basis to support renewal of the expired variance: the existence of a easement and Rancic's need to access his parcel of land in order to construct a home. Since the easement is still valid, there is no conflicting reason why the variance should not be reinstated.
Based on the foregoing, the Article 78 petition is hereby dismissed and the earlier decision given by the Village of Irvington Zoning Board of Appeals is affirmed.
The foregoing constitutes the Decision and Order of this Court.
DATED: White Plains, New York
November 30, 2010
Hon. John P. Colangelo
Acting Supreme Court Justice
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