In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Mamaroneck dated November 2, 2006, which, after a hearing, annulled a determination of the Director of Building of the Village of Mamaroneck dated January 14, 2004 that the petitioners’ proposed use of the subject premises was a permitted accessory use under the Zoning Code of the Village of Mamaroneck, the Zoning Board of Appeals of the Village of Mamaroneck and Mauro Gabriele, George Mgrditchian, Clark Neuringer, Peter Jackson, and Gregory Sullivan, individually and as members of the Zoning Board of Appeals of the Village of Mamaroneck, appeal, as limited by their brief, and Leonard Aubrey, individually and as the president of Shore Acres Property Owners Association, separately appeals, as limited by his brief, from so much of a judgment of the Supreme Court, West-chester County (Lippman, J.), dated January 24, 2007, as granted the petition and annulled the determination.
Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.
The petitioners own and operate a beach and yacht club on premises located in the marine recreation zoning district (hereinafter the MR District) of the Village of Mamaroneck. In Janu
On March 12, 2004 Shore Acres Property Owners Association (hereinafter SAPO A), an association of neighboring landowners, appealed from that determination to the Village Zoning Board of Appeals (hereinafter the ZBA), seeking review of the “interpretation” by the Director of Building, and a contrary “interpretation” of the relevant provisions of the Zoning Code. On March 25, 2004 the petitioners appeared before the Planning Board for a public hearing on their application for site plan approval. They were informed that, pending the appeal to the ZBA, the Planning Board would not consider site plan approval for the site.
On April 14, 2004 the petitioners commenced a proceeding pursuant to CPLR article 78 to compel the Planning Board to consider the site plan application. In a judgment entered April 21, 2004, the Supreme Court granted the petition and directed the Planning Board to review the site plan and render a decision pursuant to the Zoning Code “as presently written without further delay.” In that judgment, which was affirmed by this Court (see Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli,
On April 26, 2004, however, the Village Board of Trustees enacted a moratorium, which barred consideration by any Village board or agency of “all permits and approvals within” the MR District, and barred the ZBA from providing interpretations
On May 8, 2006 the Village suspended the moratorium and enacted new provisions of the Zoning Code which limited to 12 the number of seasonal residences any membership club may construct in an MR District (see Zoning Code § 342-35 [B] [5]). The public hearing on SAPOA’s administrative appeal to the ZBA commenced on June 1, 2006, only weeks after the amendment to the Zoning Code was enacted. SAPOA claimed that the calendaring of the appeal was delayed not through any fault of its own, but solely because the moratorium was in effect. In fact, the moratorium had precluded consideration of the appeal, since it barred the ZBA from granting an “interpretation” for any property in the MR District.
At the hearing, the Chairperson of the ZBA noted that the delay in hearing the administrative appeal caused SAPOA and the Village to “expend a significant amount of legal fees.” Beth Hofstetter, who was president of SAPOA at the time the administrative appeal to the ZBA was filed, disputed that SAPOA was at fault. She stated that “it [the appeal] was brought into the Building Department at the time and then that was it,” and she asserted that she was notified that the stack of papers submitted in connection with the administrative appeal was still in the offices of Building Department “a month ago,” i.e., one month prior to the hearing. The Chairperson responded that the appeal to the ZBA should have been brought to the “forefront as soon as possible” to avoid needless litigation.
On November 2, 2006 the ZBA determined that the proposed use was not an accessory use, which is defined in Zoning Code § 342-3 (B) as a use “customarily incidental and subordinate to the principal use of the land or building located on the same lot with such principal use.” This determination w;as based upon evidence that the residences would occupy more than 50% of the total building square footage on the subject site. The ZBA further noted that similar accessory uses at other clubs did not have individual kitchens, while the proposed residences did,
The petitioners then commenced the instant proceeding pursuant to CPLR article 78 to review the ZBA’s determination dated November 2, 2006. The Supreme Court, in the judgment appealed from, inter alia, annulled the determination on the ground that SAPOA’s administrative appeal to the ZBA was untimely heard. On the merits, the Supreme Court held that although the Zoning Code defined an accessory use as one “customarily incidental and subordinate to” the principal use of the subject site as a clubhouse, it did not follow that the accessory use could not be larger in square footage than other structures on the site. We affirm the judgment insofar as appealed from.
Village Law § 7-712-a (5) (b) states that an appeal from a determination of an administrative official shall be taken, within 60 days after the filing of the determination, “by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought.” The Supreme Court found that SAPO A “arguably satisfied the 60 day time limit.” This determination is consistent with the prior determination in Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli (
The moratorium explicitly barred the ZBA from granting “an interpretation for any property in the Marine Recreation (MR) District.” Nevertheless, the facts in the record establish that the Village willfully and unduly delayed the proceedings, and only enacted revised zoning provisions after it was informed that further delay could result in a contempt citation. There is evidence that both the moratorium and the ensuing zoning amendments were prompted by the petitioners’ site plan application and were intended to prevent the petitioners from constructing the proposed seasonal housing. Under the circumstances, the “special facts exception” applies (see Matter of Pokoik v Silsdorf
“It is well settled that zoning codes, being in derogation of the common law, must be strictly construed against the enacting municipality and in favor of the property owner” in accordance with their ordinary meaning (Matter of Baker v Town of Islip Zoning Bd. of Appeals,
The primary use of the petitioner’s property is as a membership yacht club, which is not confined to a building. Other permitted uses include outdoor recreational uses such as docks, swimming pools, beaches, and tennis courts, as well as buildings providing club facilities (Zoning Code former § 342-35 [B] [2], [3]). The ZBA, in engrafting area requirements upon provisions defining a permissive accessory use, based upon the square footage of other building structures on the property, was irrational and unreasonable (see Matter of Baker v Town of Islip Zoning Bd. of Appeals,
In view of the foregoing, the Supreme Court properly annulled the ZBA’s determination dated November 2, 2006. Lifson, J.P., Florio, Angiolillo and Chambers, JJ., concur.