Marx v. Zoning Board of Appeals

137 A.D.2d 333, 529 N.Y.S.2d 330, 1988 N.Y. App. Div. LEXIS 6304
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 6, 1988
StatusPublished
Cited by9 cases

This text of 137 A.D.2d 333 (Marx v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marx v. Zoning Board of Appeals, 137 A.D.2d 333, 529 N.Y.S.2d 330, 1988 N.Y. App. Div. LEXIS 6304 (N.Y. Ct. App. 1988).

Opinion

OPINION OF THE COURT

Balletta, J.

In this case, we are called upon to determine the question of whether a Village Zoning Board of Appeals has the authority to modify the conditions imposed by the Village Planning Board upon a subdivision plan approved by the Village Planning Board. For the reasons set forth herein, we conclude that it does not.

The petitioners herein are the owners of a five-acre parcel of land located on Frost Mill Road in the Incorporated Village of Mill Neck, Nassau County. The area is zoned for five-acre single-family use by the village’s zoning ordinance (Building Zone Ordinance of Incorporated Village of Mill Neck § 400.6 [1]).

The premises are improved by the petitioners’ primary residence, which is not at issue on this appeal, and another structure, which is at the center of the dispute. This second structure was an accessory dwelling comprised of three bedrooms, a living room, kitchen, dining room and two baths as well as a two-car garage and a loft area.

The subject property was originally on the westerly part of a 10.1-acre parcel known as the Weicker Estate. In 1979, the petitioners’ predecessor in interest, Cuales Enterprises, Inc., had applied to the Planning Board of the Incorporated Village of Mill Neck for a subdivision of the estate.

On November 15, 1979, the Planning Board granted the application to subdivide the estate into two approximately equal parcels containing at least five acres as required by the zoning ordinance. As a result, the buildings on the proposed westerly lot (now the petitioners’ property) did not comply with the 75-foot setback requirements of the ordinance: the primary residence had a 60-foot setback, while the second structure had only a 10-foot setback from the northerly property line. In granting the application to subdivide the estate, the Planning Board permitted both structures to remain. However, the Planning Board imposed the condition that the second structure could no longer be used as an accessory [335]*335dwelling or living quarters and could only be used for a garage and dead storage.

The petitioners and another individual, a Shawn Kennedy, purchased the subject premises in 1980.

After taking title to the property, the petitioners allegedly converted the second structure into a dwelling for Kennedy. Subsequently, the Village Building Inspector visited the premises and found that the buildings were being used in contravention of the restriction imposed by the Planning Board. The petitioners were then requested to cease and desist from using the premises illegally. Thereafter, at some point between 1980 and 1985, Kennedy conveyed her interest in the property to one Nicastro, and in April 1985 the petitioners acquired sole ownership of the property by purchasing Nicastro’s interest.

The petitioners then appealed to the respondent Zoning Board for permission to use the second structure as an accessory dwelling having less than the required 75-foot setback mandated by the zoning ordinance, designating their application as an "appeal from the Planning Board Decision of November 15, 1979”. A hearing was held on July 29, 1985, with respect to the application.

On or about September 12, 1986, the petitioners commenced the instant proceeding which sought a judgment, inter alia, directing the respondent Zoning Board to (1) redesignate the second structure as an accessory dwelling, (2) refund all taxes paid to date on the use of the premises as a dwelling, and (3) award them damages in an amount equal to the fair use value of the premises from the date that the building was restricted from use as a dwelling. It appears that as of September 1986 the respondent Zoning Board had not yet issued a decision with respect to the hearing held on July 29, 1985.

In its answer dated October 29, 1986, the respondent Zoning Board generally denied the allegations in the petition and, as an affirmative defense, stated that the petitioners’ sole remedy was to make an application to the Planning Board. The respondent Zoning Board also issued a decision with respect to the application, in which it found that "it [was] without jurisdiction to vary the decision of the Planning Board”, and directed that the petitioners’ application "be heard before the Planning Board of the Incorporated Village of Mill Neck”.

By judgment dated January 27, 1987, the Supreme Court, Nassau County (Oppido, J.), ruled that the respondent Zoning Board’s decision that it was without jurisdiction was correct. [336]*336The court noted that the Planning Board, and not the Zoning Board, had been delegated the power to control the subdivision of land. Thus, the court stated that the Zoning Board "may not trespass upon the functions or duties of the Planning Board”.

On this appeal, the petitioners contend that the Supreme Court misconstrued the authority of the Zoning Board to grant the relief requested. The respondent Zoning Board argues that the court did not err in holding that it had no jurisdiction to relieve the subject property of the restriction imposed by the Planning Board. We agree with the respondent’s contention.

The resolution of the issue presented requires a study of the interplay between the closely related, yet distinct, zoning and planning functions of local government.

Through the exercise of its zoning and planning powers, a municipality is able to control growth and development so as to provide a sound neighborhood environment to its residents. Although municipal planning "may not, in a definitional or conceptual sense be identified with the power to zone, it is designed to complement other land use restrictions, which, taken together, seek to implement a broader, comprehensive plan for community development” (Matter of Golden v Planning Bd., 30 NY2d 359, 372).

The purpose of municipal planning "is to preserve through a governmental agency a uniform and harmonious development of the growth” of the municipality (Village of Lynbrook v Cadoo, 252 NY 308, 314). The main tool of the municipal planner is the power to regulate the development of unimproved land through subdivision control. Subdivision control attempts to guide the systematic development of a community or area while "encouraging the provision of adequate facilities for the housing, distribution, comfort and convenience of local residents” (Matter of Golden v Planning Bd., supra, at 372). It "reflects a legislative judgment that the building up of unimproved and undeveloped areas ought to be accompanied by provision for roads and streets and other essential facilities to meet'the basic needs of the new residents of the area” (Matter of Brous v Smith, 304 NY 164, 169). Subdivision control is aimed at protecting the community from an uneconomical development of land, and assuring persons living in the area where the subdivision is sought that there will be adequate streets, sewers, water supply, and other essential services (2 [337]*337Anderson, New York Zoning Law and Practice § 21.02, at 64 [3d ed]).

On the other hand, the primary goal of municipal zoning is the development of a balanced, cohesive community which efficiently uses the municipality’s available land. One of the basic purposes of zoning is to provide in an orderly fashion for the residents’ need for various types of residential, commercial and industrial structures. The concern is whether the municipality as a whole will be a balanced and integrated community (see, Berenson v Town of New Castle,

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Bluebook (online)
137 A.D.2d 333, 529 N.Y.S.2d 330, 1988 N.Y. App. Div. LEXIS 6304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marx-v-zoning-board-of-appeals-nyappdiv-1988.