Rembar v. Board of Appeals of the Village of East Hampton

• Decision Date: 20 March 1989
• Citation: 148 A.D.2d 619,539 N.Y.S.2d 81
• Parties: In the Matter of Charles REMBAR, Appellant, v. The BOARD OF APPEALS OF THE VILLAGE OF EAST HAMPTON, Respondent, Daniel Rose, et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 81

539 N.Y.S.2d 81

148 A.D.2d 619

In the Matter of Charles REMBAR, Appellant, v. The BOARD OF APPEALS OF THE VILLAGE OF EAST HAMPTON, Respondent, Daniel Rose, et al., Intervenors-Respondents.

Supreme Court, Appellate Division,

Second Department.

March 20, 1989.

Rembar & Curtis, New York City (Mark W. Budwig, of counsel), for appellant.

Crimmins & Baisley, Riverhead (Edith C. Rysdyk, of counsel), for respondent.

Esseks, Hefter & Angel, Riverhead (William W. Esseks and John M. Wagner, of counsel), for intervenors-respondents.

Before MOLLEN, P.J., and MANGANO, THOMPSON and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Appeals of the Village of East Hampton, dated July 17, 1987, which allowed the intervenors-respondents to construct certain additions on their property, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Friedenberg, J.), dated December 14, 1987, which dismissed the petition.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, and the application for a variance is denied.

In 1986 the intervenors Daniel and Joanna S. Rose bought a certain parcel of real property in the Village of East Hampton which is contiguous to property owned by the petitioner herein. The Roses' property is improved by a one and one-half story frame dwelling built in 1947, a two story frame dwelling which was probably built in the 1800s (hereinafter the cottage) and a garage which had been converted to a dwelling unit. Because the property is situated in the village's "AA" residential district, which restricts use to "a single detached dwelling for not more than one family" (see, Village of East Hampton Zoning Code § 57-4[A][1] ), the use of the property is nonconforming.

In April 1987 the Roses submitted an application for a variance from the provisions of § 57-4.A(1) in order, among other things, to extend a dormer on the cottage and to install a foundation under the building.

On June 19, 1987, the respondent board held a public hearing on the Roses' application. It was conceded at the hearing that the subject property violated not only the use restrictions prescribed for the zoning district but that it violated the setback requirements as well. In support of the application, the Roses stated they intended to use one of the structures on the property as a retirement home and that the remaining structures were to be used by their four adult children. However, in a decision dated July 17, 1987, to the extent relevant to this appeal, the board found that the cottage constituted a preexisting use and that the addition of the foundation and dormers to the cottage were "insignificant" and would not "increase the intensity of the use of the property". Based upon these findings, the board determined, in pertinent part, that "[t]he proposed foundation and dormers to the cottage are hereby granted".

The petitioner subsequently brought the instant CPLR article 78 proceeding to review the board's determination. In essence, the petitioner claims that the determination constituted an improper grant of a use variance. The board and the Roses claim that the board's determination was merely an interpretation that the proposed alterations were permitted by the zoning code as a matter of right.

The Supreme Court found that the proposed alterations could be made without a variance and that therefore the board's interpretation that the alterations were permissible was not unreasonable or irrational. We disagree.

It is axiomatic that a zoning board of appeals has the power to interpret the provisions of the local zoning ordinance or code (Matter of Mialto Realty v. Town of Patterson, 112 A.D.2d 371, 491 N.Y.S.2d 825 lv. dismissed 66 N.Y.2d 601, 496 N.Y.S.2d 1025, 490 N.E.2d 553; Rattner v. Planning Comm. of Vil. of Pleasantville, 103 A.D.2d 826, 478 N.Y.S.2d 63). The mere fact that an applicant applies for a variance with respect to proposed construction does not preclude the board from rendering a decision that based upon its interpretation of the provisions of the ordinance a variance is not required. At bar, the board's determination is arguably susceptible of meaning that the requested variance was...