MEMORANDU SUPREME COURT, COUNTY OF NASSAU, BY: HON. BRUCE D. ALPERT. Mandalay Property Owners Association, Inc., Joseph Mazzo and Alberta Splescia,

Size: px

Start display at page:

Download "MEMORANDU SUPREME COURT, COUNTY OF NASSAU, BY: HON. BRUCE D. ALPERT. Mandalay Property Owners Association, Inc., Joseph Mazzo and Alberta Splescia,"

Charles Singleton
5 years ago
Views:

1 MEMORANDU SUPREME COURT, COUNTY OF NASSAU, M IAS PART 9. Mandalay Property Owners Association, Inc., Joseph Mazzo and Alberta Splescia, BY: HON. BRUCE D. ALPERT MOTION SEQUENCE #l Petitioners, INDEX NO: 14488/00 - against - The Board of Appeals of the Town of Hempstead, Respondent, MOTION DATE: March 23,200l DATED: May 24,200l For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules Thomas V. Pantelis, Esq. Attorney for Petitioners 1035 Stewart Avenue Garden City, NY Joseph Ra, Esq. Attorney for Respondent Town of Hempstead 1 Washington Street Hempstead, NY In this preceding initiated pursuant to Article 78 of the Civil Practice Law and Rules, the petitioners, Mandalay Property Owner s Association, Inc., Joseph Mazzo and Alberta Splescia,[ the petitioners ] seek a judgment annulling a determination of the respondent Board of Zoning Appeals of the Town of Hempstead, [the ZBA ] dated July 12,2000, which, after a hearing, granted certain landowners permission to store boats on their property as a permissible * accessory use.

2 2 * In sum, the ZBA concluded that certain property owners whose parcels abut the so-called Grand Canal in the unincorporated area of Wantagh could - subject to specified conditions - store boats on their property without any need for the variances the property owners had originally sought. In reaching its determination, the ZBA reasoned, in substance, that since the affected property owners possessed a lawful right to dock the boats in the canal adjacent to their property, they necessarily possessed the incidental right to store the boats on the adjoining upland as a permissible, accessory use. The petitioners contend that the foregoing determination was incorrect as a matter of law. The Court disagrees. It is well settled that great weight and judicial deference must be accorded to a Zoning Board s construction of a local zoning ordinance, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute. (Appelbaum v Deutsch, 66 NY2d 975,977, quoting, Matter of Trump-Equitable Fifth Ave Co. v Gliedman, 62 NY2d 539,545 see also, Matter of Wasserman v Planning Board of Village of Dobbs Ferry, _AD2d_, 722 NYS2d 578,579; Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of the Village of East Hampton, 273 AD2d 385,387) Moreover, [wlhether a proposed accessory use is clearly incident to and customarily found in connection with the principal use depends upon an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question (Matter of New York Botanical Garden v Board of Standards and Appeals of the City of New York, 91 NY2d 413,420; see also, Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of Village of East

3 Hampton; Matter of Dyno v Village of Johnson City, 261 den 94 NY2d 8 18) A zoning board NY2d 842,844; Matter of New York Botanical Garden v Board of Standards and Appeals of the City of New York, supra) Significantly, of East Hampton, 148 AD2d 6 19,620; cf., Matter of Incorporated Village of Atlantic Beach v Zoning Board of Appeals of the Town of Hempstead, supra, 260 AD2d 634,635, affd 94 NY2d 842) Here, it is undisputed that the subject parcels directly abut a navigable waterway and that the principal, permitted use to which the property is presently devoted, is the docking and mooring of boats. from rendering a decision that based upon its interpretation of the provisions of the ordinance a variance is not required (Matter of [tlhe mere fact that an applicant applies for a variance with respect to proposed construction does not preclude the Board AD2d 783,784, s determination with respect to what constitutes a permissible accessory use is similarly entitled to deference upon judicial review. (Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of the Village of East Hampton, supra; see also, Matter of Incorporated Village of Atlantic Beach v Zoning Board of Appeals of the Town of Hempstead, 94 Rembar v Board of Appeals of the Village Cognizant of the foregoing, and upon review of the character and nature of the land in question (Matter of New York Botanical Garden v Board of Standards and Appeals of the City of New York, supra, at 420), the ZBA permissibly determined, from its observation, that boats are an everyday permanent reality in the vicinity of these maritime properties; that the storage of boats on trailers and on residential front yard driveways is a normal and permitted occurrence in the Town; and that upland storage of boats is simply a common-sense incident to the primary and lawful use 3 Iv

4 of the premises for dockage of boats in the adjoining waterway (July 12,2000, 4 Dec. of ZBA,T 14, p. 3) The foregoing fact-based determination ( Matter of New York Botanical Garden v Board of Standards and Appeals of the City of New York, supra, at 421) - founded upon, inter alia, extensive hearing testimony with respect the applications and the character of the surrounding environment - is supported by substantial evidence in the record and is neither irratibnal nor unreasonable (see, Appelbaum v Deutsch, supra; Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of Village of East Hampton, supra; Matter of 4 Collins v Lonergan, 198 AD2d 349,350) It also bears noting that the ZBA attached a series of narrowing conditions to its decision, which provide, inter alia, that: (1) only boats lawfully docked in the abutting waterway may be stored on the upland; (2) only one boat may be so stored and placed no closer than four feet of any property line; (3) storage may occur only from November 1 through May 1 of any year; and (4) upland storage must be accomplished in a safe and appropriate fashion as determined by the Department of Conservation and/or the Department of Buildings of the Town of Hempstead (July 12,2000, Dec. of ZBA, 1 16, pp. 4-5) Where, as here, a ZBA s determination with respect to an accessory use is neitherirrational, unreasonable nor inconsistent with the governing statute, it will be upheld (see, Appelbaum v Deutsch, supra; Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of Village of East Hampton, supra; see also, Matter of Incorporated Village of Atlantic Beach v Zoning Board of Appeals of the Town of Hempstead, supra). Lastly, the petitioners reliance upon, inter alia, case law construing the

5 5 doctrine of riparian rights is miscast. Although the ZBA s decision discusses the, concept of riparian rights, its determination rests primarily upon the conceptually distinct principle that the proposed use is - under the circumstances presented - incidental to, and thus a permissible accessory of, the primary use to which the applicants property is presently devoted. In light of the above, and under the circumstances presented, the respondent ZBA s determination is confirmed and the proceeding is dismissed on the merits. This concludes all proceedings under index #14488/00. Settle Judgment on Notice

Matter of Harbor Park Realty, LLC. v Modelewski 2011 NY Slip Op 33196(U) November 23, 2011 Sup Ct, Suffolk County Docket Number: Judge:

Matter of Harbor Park Realty, LLC. v Modelewski 2011 NY Slip Op 33196(U) November 23, 2011 Sup Ct, Suffolk County Docket Number: 24135-10 Judge: Peter Fox Cohalan Republished from New York State Unified