APPEAL by the Zoning Board of Appeals of the Town of Greenburgh in a proceeding pursuant to CPLR article 78, inter alia, to review its determination dated November 16, 2006, which, after a hearing, denied the petitioner's application for certain area variances, from an order of the Supreme Court (Barbara G. Zambelli, J.), entered September 28, 2007, in Westchester County, which granted the petition to the extent of annulling the determination and remitting the matter to the Zoning Board of Appeals of the Town of Greenburgh for reconsideration of the application and the issuance of a new determination setting forth specific findings of fact supporting its determination.
The opinion of the court was delivered by: Dillon, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., MARK C. DILLON, ANITA R. FLORIO and DANIEL D. ANGIOLILLO, JJ.
The issue on this appeal is whether a municipal zoning board may deny requested area variances on the basis of common-law principles that are independent of the statutory factors enumerated under Town Law § 267-b(3). In particular, we are asked to determine whether ongoing and deceitful representations by a variance applicant during earlier interaction with the planning board, and with the zoning board itself, permit the denial of requested area variances. The issue raised, in this context, is novel. We conclude that an applicant's deceitful conduct may form the basis for the denial of requested variances, but only if that conduct and other balanced considerations fit within the factors enumerated by Town Law § 267-b(3).
In 2000, the petitioner, Caspian Realty, Inc. (hereinafter Caspian)*fn1, applied to the Planning Board of the Town of Greenburgh (hereinafter the Planning Board) for site plan approval of a proposed furniture store to be located at 155 N. Central Avenue. The application and materials submitted in support of the site plan described the premises as having a main floor and a cellar. The dimensions of the proposed showroom were to be 6,208 square feet, equal to the square footage of the main floor*fn2. The square footage represented a Floor Area Ratio (hereinafter FAR) of.134, which was within the.135 FAR permitted by Code of Town of Greenburgh § 285-29.1(C)(1). Pursuant to Code of Town of Greenburgh § 285-5, the FAR is determined by dividing the proposed retail space of 6,208 square feet by the lot area of 46,320 square feet, which equals.134.
During the Planning Board's review of the application, Caspian was specifically asked how it intended to use the cellar of the building. In response, Caspian advised that the cellar would be used for storage and mechanicals only. The use of the cellar for mere storage and mechanicals was significant, as any use of the cellar for retail purposes would cause the premises to exceed the maximum permissible.135 FAR. Moreover, Code of Town of Greenburgh § 285-29.1(C)(5) requires one parking space for each 200 square feet of retail space. While the site plan provided for 33 parking spaces, which was two in excess of the minimum, a retail use of the cellar would necessitate a significant parking variance.
Floor plans and revised plans submitted in November 2002 and April 2003, respectively, located the "retail area" on the main floor of the premises only. When, in August 2003, a Town Building Inspector observed improvements being made to the cellar, including the installation of partitions, walls, moldings, finishes, and carpeting, the Town requested, and Caspian provided, further revised plans dated September 25, 2003, that expressly designated the cellar for "storage."
Temporary and permanent certificates of occupancy were issued on October 3, 2003, and November 3, 2003, respectively, based upon the designation of the cellar as a storage area only, and after Caspian erected a barricade across the stairway that leads from the main floor to the cellar.
Caspian's furniture store then opened for business. Months passed, during which time an off-site location was used for storage. On May 5, 2004, the Town charged Caspian in the Greenburgh Justice Court with violations of Zoning Ordinance of the Town of Greenburgh §§ 285-46(4)(d) and 285-47(a) for operating a display area in the cellar of a premises contrary to the certificate of occupancy in March, April, and May of that year, and in failing to abate the violation.
In response to the zoning charges, Caspian filed with the Zoning Board of Appeals of the Town of Greenburgh (hereinafter the ZBA) an application dated July 22, 2005, for two area variances. One variance sought to allow an increase of the FAR from.134 to.268, in contemplation of the cellar's continued use as retail space. The second variance was to reduce the required off-street parking from 62 spaces, as would be required with the retail use of the cellar, to 33 spaces. In its statement in support of the variance application, Caspian represented that it had been "unaware that it could not utilize the basement for retail sales." The variance application was supported by a floor plan, purportedly dated "4/7/03," that denominated the cellar as "retail" space. Caspian argued that it sought use of the cellar as a showroom so that its retail space would be similar to that of its competitors in the area.
A public hearing was conducted on Caspian's application on February 16, April 20, May 18, June 15, August 31, and September 21, 2006. Caspian's representative stated at the hearing that Caspian had always believed that the cellar could be lawfully used for retail purposes. Input was received from members of the public and facts relating to various statutory variance factors were discussed by all concerned. Caspian provided the ZBA with a land use report from Nathaniel J. Parish, P.E., who stated in his report and hearing testimony that the showroom use of the cellar had created no adverse impacts that the parking requirements of the Town Code were intended to address. Those conclusions by Parish were adopted by Michael Maris, a traffic consultant hired by the ZBA. Homeowners from an adjoining residential neighborhood argued that Caspian had failed to comply with several conditions of the earlier site plan approval such as landscaping, noise, and overnight parking. In particular, they complained that because of the size and location of the building relative to the size of the site, trucks needed to back into the site. They maintained that such truck movement exacerbated traffic conditions on Central Avenue and disturbed the use and enjoyment of their homes.
On November 16, 2006, the ZBA adopted a resolution denying Caspian's application for variances, which was set forth in a written Certification of Decision filed with the Town on December 15, 2006. The ZBA determined, inter alia, that Caspian had continuously deceived the Town as to the intended use of the cellar, such that the benefit of granting the variances was outweighed by the detriment that would be caused to the Town by allowing a diminution of respect for its planning, building, and tax laws. The ZBA found that the retail use of the cellar burdened neighboring property owners in terms of noise, truck movement, and traffic tie-ups; that the variance requests were substantial, as they represented a 100% increase in permissible FAR and a 50% decrease in permissible parking; and that Caspian's need for the variances was self-created by its deceptive conduct.
Caspian timely filed a notice of petition and petition dated January 11, 2007, and January 12, 2007, respectively, pursuant to CPLR article 78, seeking to review the ZBA's denial of its requested variances. The petition further requested that the court direct the ZBA to grant its variance application. Caspian reiterated that it had always believed that it could legally use the cellar as a retail showroom; that the build-out of the cellar was open and conspicuous to building inspectors prior to the Town's issuance of the certificates of occupancy; and that a consideration of the factors set forth in Town Law § ...