State of New York
Supreme Court : County of Monroe

Petitioner,

for a Judgment pursuant to CPLR Article 78

- against -

Index No. 1999/4106

Respondents.
__________________________________

ANDREW V. SIRACUSE, J.

Petitioner Joel Smith owns commercial property in the central business district of the Finger Lakes village of Naples, New York. The property is situated in a C-1 zone, which the Village Zoning Code reserves for "General Retail Uses, Personal Services, Business or Professional Offices, Restaurants, [and] Churches" (Section 6.4 [A]). Special uses in a C-1 zone are limited to "Laundromats, store conversions, essential services, [and] Beds & Breakfasts".

Mr. Smith's businesses, which he conducts under the name of the Aggressive Company, Inc., include a gasoline station, a contracting firm, and Naples Rental and Supply Co., which rents and sells construction equipment to the building trades. Only the gasoline station was in operation when the Zoning Code was enacted, and it remains protected as a prior nonconforming use. The other businesses were begun at a later time, and it is their legality that is at issue in this Article 78 proceeding.

On March 4, 1997, the Village Planning Board had approved an application by petitioner to pave the front yard of his property as a parking area. The application is silent as to the uses of the property. In August, 1998, however, the Planning Board contacted Mr. Smith and requested that he apply for approval of the multiple businesses on the site, as no such approval had been obtained. Mr. Smith made no applications, and the Village Zoning Board issued a notice of violations in October, 1998. Among other violations, the Board found that the equipment rental business, sales and service of construction equipment and the contracting business were not permitted uses in a C-1 zone. The Board also found violations in the failure to obtain building permits and Planning Board approval.

The Zoning Board of Appeals, after a public hearing, issued a notice of decision on March 30, 1999, although the decision was not filed until April 15. The ZBA determined that the cited businesses were not allowed in a C-1 zone, although there were no longer any issues regarding the building permit, which Mr. Smith had eventually obtained for some structural alterations. The ZBA also ruled that the office and administrative functions for the various business could continue on the site.

This proceeding followed. Mr. Smith raises three points, two of them closely related. He contends that the ZBA was in error in determining that his businesses were not permitted uses. Furthermore, he argues that the Village Zoning Code nowhere requires that a permit be obtained when there is a change from one permitted use to another.

The Court cannot understand Mr. Smith's construction of the Village Zoning Code, because both the character of the permitted uses in a C-1 zone and the need for an application for any change in use are plainly set out therein. The businesses allowed in a C-1 zone were listed above--they are "General Retail Uses, Personal Services, Business or Professional Offices, Restaurants, [and] Churches" (Code 6.4 [A]). The rental and sales of construction equipment cannot be considered any of these. Mr. Smith contends that the Code must be construed strictly against the Village, and that his businesses are all "general retail" or "personal services". He cites no case law in support of his rule of interpretation, as in fact he cannot. A Zoning Code is not a contract of adhesion, and is not to be construed as a statute in derogation of a pre-existing right. Instead, "[i]t is the general rule that the interpretation of statutes and regulations by the agency charged with the responsibility for the administration of law must be upheld if not irrational or unreasonable" (Matter of Reader's Digest Association v State Tax Commission, 103 AD2d 926, 927, citing Matter of Howard v Wyman, 28 NY2d 434, 438). There is nothing unreasonable or irrational in the Zoning Board's interpretation. Few citizens will ever find themselves needing to buy or rent a towable conveyor, a self-propelled trencher, a five-foot-capacity sewer cleaner or a 45-foot two-man-bucket materials lift, to name only a few of the items carried by Naples Rental and Supply. The market for such devices is certainly the building trade, and regardless of its owner's characterization this is essentially a wholesale business.

The same may be said of the construction business itself. Both business are far more consistent with the C-2 zone, which the Code calls "Highway Commercial". Since the Court rejects the argument that these businesses are permitted uses in a C-1 zone, it may not be strictly necessary to consider Mr. Smith's claim that the Code does not require a permit for a change in a property's use. It seems clear from a careful look at the Code sections that have ben provided to the Court, however, that such a permit is indeed required. Section 12.1 of the Code states that an application for a building permit must be made for any change in use, and 12.2 [A] allows the Zoning Officer to issue certain building permits for permitted uses on his own authority. If one does not need a permit to go from one permitted use to another, there would be no need for the Code to give the Officer the authority to issue one.

The Village also correctly argues that the Code mandates a submission to the Zoning Board of all changes of use in a commercial district. Taken together, the Village has established a clear procedure for obtaining approvals before a change in use; although there is no "change in use" permit found in the Code, the failure to provide this name does not allow the change without such approvals.

The final argument advanced by Mr. Smith is that the Zoning Board of Appeals decision is a nullity, as it was not filed within five days as required by Village Law § 7-712-a (9). The Village admits that the decision was not filed until April 15, ten days after the expiration of the deadline. The Village correctly argues, however, that this failure does not require the invalidation of the decision. No case law exists on this point, but it is recognized that the failure to file the decision at all would result in nothing more than resubmission of the matter to the ZBA (see, e.g., Wernert v McHaffie, 158 NYS2d 438). If petitioner had been prejudiced by premature enforcement action there might be a basis for returning the matter to the ZBA. In the present case, however, the very brief delay had no effect on the petitioner's rights, and a resubmission would simply waste the Zoning Board of Appeals' time and engender a second Article 78 with no difference in the result. To conclude, as Mr. Smith's attorney suggested at oral argument, that this error requires that the matter be conclusively resolved in the petitioner favor would be to hold the community hostage to the clerical mistakes of its own representatives. The interests promoted by the Zoning Code are too important to be abandoned so capriciously.

The petition is dismissed, without costs or disbursements. Mr. Miller may prepare the order, upon appropriate notice to Mr. Mayberry.

DATED: Rochester, New York

June 1, 1999

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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