Charisma Holding Corp. v. Zoning Bd. of Appeals of Town of Lewisboro

• Decision Date: 29 November 1999
• Citation: 266 AD2d 540,699 N.Y.S.2d 89
• Parties: In the Matter of CHARISMA HOLDING CORP., respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF LEWISBORO, et al., appellants.
• Court: New York Supreme Court — Appellate Division

Page 89

699 N.Y.S.2d 89

In the Matter of CHARISMA HOLDING CORP., respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF LEWISBORO, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 29, 1999.

Covey, Roberts, Buchanan & McGroddy, Katonah, N.Y. (Kitley Covill of counsel), for appellants.

Michael Fuller Sirignano, Cross River, N.Y., for respondent.

SONDRA MILLER, J.P., DAVID S. RITTER, ANITA R. FLORIO and HOWARD MILLER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Lewisboro dated April 27, 1998, which, after a hearing, inter alia, denied the petitioner's request for an area variance to construct a body shop on a site on the northern end of the property, the appeal is from a judgment of the Supreme Court, Westchester County (Smith, J.), entered July 29, 1998, which granted the petition and directed that the area variance be granted as requested.

ORDERED that the judgment is reversed, on the law, with costs, the determination is confirmed, the petition is denied, and the proceeding is dismissed.

The petitioner Charisma Holding Corp. (hereinafter Charisma) is the owner of commercially-zoned real property in the respondent Town of Lewisboro. The property is the site of an automobile dealership and is abutted to the north and east by residentially-zoned property. In January 1988 Charisma petitioned the respondent Zoning Board of Appeals of the Town of Lewisboro (hereinafter ZBA) for various relief, including an area variance to build a 3,000 square-foot six-bay garage. One bay was to be used for washing vehicles, another for spray-painting vehicles, and the remaining four for repairs and service. Although such a garage is a permitted use of the property under the relevant zoning regulations, an area variance was needed because it would bring the developed area of the property to 69% of the total area, and the relevant regulations permit development of no more than 60%. The petitioner proposed to locate the garage on the northern end of its property. During the review process, which included three public meetings and two visits to the property, residential neighbors to the north and east voiced various objections to the location of the proposed garage. One property owner in particular noted that the proposed location would place it within 100 feet of her kitchen window and would result, inter alia, in exhaust and paint fumes, and additional noise and traffic.

Based on such concerns, the ZBA considered two alternative sites for the garage. After various inquiries, the ZBA noted a preference for what they designated as site No. 3 (hereinafter the middle lot), which they determined would create significantly less impact on the surrounding residential properties. The petitioner, asserting various additional costs and concerns in building the garage on that site, pressed its preference for the site originally proposed. By determination dated April 27, 1998, the ZBA denied the petitioner's request for an area variance for the site as proposed. The ZBA found that a grant of the area variance as requested would result in a substantial undesirable change in the character of the residential neighborhood to the north, that there would be a substantial detriment to the nearby properties, and that there was an alternative site. The ZBA found that the benefit to the petitioner if the area variance was granted as requested was outweighed by the detriment to the health, safety, and welfare of the neighborhood community (see, Town Law § 267-b ). However, the ZBA granted an area variance to the petitioner based on locating the garage on the middle lot, finding no similar concerns. In the judgment appealed from, the Supreme Court directed the ZBA to grant the requested area variance as proposed by the petitioner. The court held that because the garage was a permitted use of the property and otherwise conformed with all relevant zoning restrictions, the sole issue properly before the ZBA was the development of 69%, as opposed to 60%, of the total lot area. Thus, the court held, the ZBA's denial of the variance as requested was based on a matter not relevant to its considerations, that is, the proposed use of the additional area. Accordingly, the court determined that because the ZBA implicitly found that the use of the additional area should be permitted, the variance should have been granted as...