Opinion
August 12, 1985
Appeal from the Supreme Court, Westchester County (Cerrato, J.).
Appeal and cross appeal from the judgment entered April 26, 1983 dismissed, without costs or disbursements. Said judgment was superseded by the order and judgment entered October 18, 1983, made upon reargument.
Order and judgment entered October 18, 1983 affirmed, without costs or disbursements.
Petitioner is the owner of property located at 2285 Boston Post Road, Larchmont, New York. The property was composed of three parcels (hereinafter referred to as parcels A, B, and C, respectively), totaling approximately six acres. Parcel A was developed by petitioner's father as a commercial nursery and has been run as such since 1926. Title to parcel A was acquired by petitioner's family in 1959. Parcel B and C were not used as part of the nursery until they were acquired by petitioner in 1968 and 1972 respectively.
Under the Zoning Ordinance of the Village of Larchmont, enacted in 1954, petitioner's property was located in a one-family residential district which required a 30-foot setback from the property line. In 1979, petitioner constructed a greenhouse that straddled parcels A and B, directly on the property line. A dispute arose between the village and petitioner over the use of the greenhouse in a residential area. Eventually, a stipulation was entered into in which it was agreed that parcels A, B and C would be allowed to remain a commercial nursery in the residential zone. However, petitioner was required to apply for an area variance to allow the greenhouse to remain on parcels A and B in violation of the 30-foot set-back requirement.
Petitioner's application for a variance was denied after a public hearing. The board found that petitioner failed to show practical difficulties or financial hardship in moving the greenhouse to a point beyond the 30-foot set-back area. It further found that the position of the greenhouse along the property line created traffic problems, was unaesthetic, and injured the residential character of the zone. In the order and judgment made upon reargument, Special Term annulled the board's determination as to parcel A owing to the preexisting nonconforming use on said parcel. However, it confirmed the determination as to parcel B. Both parties appeal.
We affirm the order and judgment. There is no dispute that parcel A had a preexisting nonconforming use. The board contends that notwithstanding the nonconforming use of the property, it is still subject to residential set-back requirements. This is incorrect. Petitioner's family was engaged in substantial activities in running a commercial nursery on parcel A since 1926. Evidence was presented of numerous greenhouses being erected on the property line of parcel A prior to the enactment of the zoning ordinance. The activities on parcel A clearly manifested an intent to appropriate the entire parcel to the particular business of the nursery. Thus, the protection of the nonconforming use extended throughout the entire parcel, which was not subject to the later-imposed set-back requirement ( Matter of Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278; Marra v. State of New York, 61 A.D.2d 38; Matter of Fairmeadows Mobile Vil. v. Shaw, 16 A.D.2d 137; United Citizens v. Zoning Bd., 109 Misc.2d 1080).
This protection, however, did not extend to parcel B. No nonconforming use was established on parcel B and petitioner cannot extend the nonconforming use of parcel A to parcel B merely because they are contiguous ( Matter of Syracuse Aggregate Corp. v. Weise, supra, p 278). While the stipulation, in effect, gave petitioner a use variance on parcel B, this variance was granted on the condition that petitioner apply for an area variance with regard to the greenhouse. Upon a review of the record we find that the denial of the area variance as to parcel B had a rational basis and is supported by substantial evidence ( Matter of Fuhst v. Foley, 45 N.Y.2d 441; Matter of Cowan v Kern, 41 N.Y.2d 591; Matter of National Merritt v. Weist, 41 N.Y.2d 438). Furthermore, we find that petitioner was in no way deprived of his due process rights at the administrative hearing. Therefore, the order and judgment must be affirmed. Thompson, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.