Opinion
7181/10.
Decided February 14, 2011.
In this Article 78 proceeding, Petitioner George Krol ("Petitioner" or "Krol") has filed a petition (the "Petition") seeking, in essence, to overturn the ruling of the Respondent Village of Mamaroneck (the "Village") Zoning Board of Appeals (the "Zoning Board" or "Respondent") which affirmed the Village Building Inspector's decision not to allow zoning variances with respect to certain improvements made or planned to be made to the property at issue. That property is a residential dwelling owned by Kroll and located at 210 Union Avenue in the Village of Mamaroneck (the "House"). After Respondent filed its Answer to the Petition and both sides served and filed memoranda in opposition and in support of their respective positions, Krol interposed the instant motion. In it, Krol first seeks, pursuant to CPLR 103(c), to convert certain portions of his Petition to a plenary action for declaratory relief and to amend the Petition accordingly, and then, based on such amended pleading, to grant Petitioner summary judgment under CPLR 3212.
At bottom, Krol is seeking by his motion to have the Court declare that he has a "vested right" to have his House deemed a lawful five family dwelling — current zoning maps to the contrary notwithstanding — based upon the doctrine of prior non-conforming use. Respondent initially opposes Petitioner's motion on the ground that sanctioning the conversion of this Article 78 proceeding to a plenary action would prove an improvident exercise of the Court's discretion since an Article 78 proceeding is both the appropriate and statutorily prescribed method under the Village Law to address the propriety of the Zoning Board's decision. Should such CPLR 103(c) conversion be permitted, Respondent contends that such a hybrid action based on a "vested right" claim would nonetheless be subject to dismissal because Petitioner never properly raised such issue with Respondent and therefore failed to exhaust his administrative remedies.
As discussed more fully below, the Court holds that Petitioner's motion to alter the form of this proceeding to an action pursuant to CPLR 103(c) must be denied, and such denial renders the remaining aspects of Petitioner's motion moot.
Discussion and Conclusions
This proceeding centers on a one hundred and ten year old year old multi-family house located in the Village of Mamaroneck and purchased by Krol in 1997 (the "House"). The House is located in what is now a district zoned for 1 to 2 family dwellings. After his purchase of the House, Krol sought several variances with respect to certain improvements made or to be made by him. In January 2010, the Zoning Board denied Krol's application on several grounds, including that "the house is a legally non-conforming 3 family house and that the use of the property as a 5 family house is, as determined by the Building Inspector, a violation of the Zoning Code" and that, accordingly, "[w]ith respect to the requested variances, the Board finds that the variances are all for uses that are accessary to the illegal 5 family house and therefore are not permitted uses." (Zoning Bd. Decision dated January 7, 2010, paragraphs 5 and 6).
In his Article 78 Petition, Krol challenges the Zoning Boards decision as arbitrary and capricious. Petitioner now maintains that instead of the instant Article 78 proceeding that he did bring, he should have brought a plenary action for a declaratory judgment to the effect that he has a vested right to a five family designation for his House. Accordingly, Krol seeks to have the Court permit him to amend his pleading under CPLR 103 (c) to reflect this corrected "form" of action. Respondent opposes Petitioner's motion in all respects.
Contrary to Petitioner's assertion, this proceeding was not brought in an improper form. Rather, it was properly brought as a special proceeding under CPLR Article 78 as permitted, if not required, by § 7-712-c of the Village Law. It is undisputed that the fulcum of this proceeding was the decision of the Zoning Board to deny Petitioner's application for variances (See Petition, paragraph 4). Section 7-712-c(1) of the Village Law — plainly applicable to the Respondent Village of Mamaroneck and its Zoning Board — prescribes that a person aggrieved by a Zoning Board decision "may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules" and that such a proceeding "shall be instituted within thirty days after the filing of a decision of the board in the office of the village clerk." This is what Petitioner did by bringing the instant proceeding.
Since Petitioner himself chose this Article 78 form, and since such form is proper, CPLR 103 (c) does not apply to the instant proceeding. CPLR 103 (c) is designed to act as a shield against dismissal of an otherwise facially valid petition brought in an incorrect and thereby dismissible form, rather than as a sword wielded by a petitioner himself — as Krol seeks to do here — to challenge, on previously unasserted grounds, a decision never actually made by a zoning board or other municipal body. See Lucas v. Village of Mamaroneck , 57 AD3d 786 (2d Dept. 2008).
Moreover, to allow a change of form of the Petition at this juncture of the proceedings may well subvert rather than promote the goal judicial economy — as Petitioner claims. For, the issue Petitioner seeks to raise through his proposal amended pleading — is essence, his asserted "vested right" to a five family designation and use because of an alleged prior non confirming use — was never properly presented to or directly addressed by the Zoning Board. If the Zoning Board had done so, its decision may well have obviated many aspects of the instant proceeding, and rendered the sought after expansion of it to an action, with the concomitant panoply of discovery devices that such an expansion entails, unnecessary.
For this reason, courts have held in similar circumstances that unless a petitioner has exhausted his administrative remedies, even an Article 78 proceeding — much less an action at law or, a fortiori the conversion of a special proceeding to such an action under CPLR 103(c) — will not lie. For example, in a case involving the very Mamaroneck Zoning Board of Appeals involved here, the Second Department affirmed dismissal of a petition challenging the Village Building Director's decision to issue a permit because of petitioner's failure to appeal to the Zoning Board. As the Court held in Lucas v. Village of Mamaroneck , 57 AD3d 786 (2d Dept. 2008),
"The petitioners alleged that the Director of Building of Village ofMamaroneck (hereinafter the Director) improperly granted a building permit toBenman Properties, LLC. The Supreme Court properly denied that branch of thepetition which was to annul the Director's determination on the ground that thepetitioners failed to exhaust their administrative remedies. The petitioners wererequired to challenge the issuance of the building permit before the Village's Zoning Board of Appeals prior to commencing this proceeding."
See also, e.g., Nautilus Landowners Corp. V. Harbor Commission, 232 AD2d 418 (2d Dept. 1996) ("The petitioners never appealed to the Zoning Board of Appeals of the Village of Mamaroneck for the issuance of the permit [issued by the Building Inspector]. Thus, the petition should have been dismissed for failure to exhaust administrative remedies."); Henderson v. Zoning Bd. of Appeals, 72 AD3d 684 (2d Dept. 2010).
Here, Petitioner Krol has not even properly brought the issue he seeks to raise herein — his purported "vested right" to a prior existing use — before the Zoning Board. Thus, it would be, at the least, improvident and premature to convert this proceeding to a plenary action that must perforce be dismissed. Particularly in view of the "great deference" accorded to "a zoning board's interpretation of its zoning ordinance," the evaluation of a zoning board's unmade and currently speculative decision should not be short circuited, under the pain of the needless use rather than the proper husbanding of judicial resources. See Matter of Brancoto v. Zoning Bd. of Appeals of City of Yonkers , 30 AD3d 515 (2d Dept. 2006) ("[A] zoning board's interpretation of its zoning ordinance is entitled to great deference . . . and judicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion"); Henderson v. Zoning Board of Appeals , 72 AD3d 684 (2d Dept. 2010).
Accordingly, Petitioner's motion pursuant to CPLR 103(c) to change the form of this proceeding is denied. In light of this determination, the remaining portions of Petitioner's motion — to amend its pleading and for summary judgment — need not be considered. The parties will have until twenty days after the date of this decision to submit any further or additional papers with respect to the Petition.
The foregoing constitutes the Decision and Order of this Court.