Opinion
June 1, 1965
In two consolidated proceedings under article 78 of the CPLR to annul decisions of the Planning Board of the Town of Yorktown which approved the use by the intervenor, Nemeroff Yorktown Corporation, of its property in an M-1 district for parking purposes in connection with a building proposed to be erected on its adjacent property in a C-3 district, the petitioners, who are neighboring property owners, appeal from a judgment of the Supreme Court, Westchester County, entered November 23, 1964, which dismissed their petitions. Judgment affirmed, without costs. The essential facts are undisputed. Intervenor is the owner of over 16 acres of land in the Town of Yorktown, part of which is in a C-3 district in which a retail store is a permitted use under the Zoning Ordinance, and part of which is in an M-1 district zoned for "planned light industry" in which a retail store is not a permitted use. Both districts require off-street parking facilities, the extent of the parking areas being governed in the C-3 district by the extent of the retail floor space, and in the M-1 district by the number of employees. Intervenor planned to construct in the C-3 district a retail store containing 95,000 square feet of sales space which, under the Zoning Ordinance, would require 190,000 square feet of parking space. The requisite parking could not be provided on the 3.26 acres of its property in that district, and intervenor proposed to use a portion of the 12.97 acres which it owned in the adjoining M-1 district for such parking. The intervenor's claim that, as a matter of right it could use a portion of its land in the M-1 district for such parking, was rejected by the court in a prior article 78 proceeding instituted by intervenor to set aside a determination of the Zoning Board of Appeals which upheld the refusal of the building inspector to issue a permit for the construction of such a parking lot. The court in that proceeding, however, held that the Planning Board, under the provisions of section 465.1 of the Zoning Ordinance, had discretion to permit the use of the M-1 premises for the parking required for the retail store. Intervenor did not appeal from that determination but, instead, applied to the Planning Board for such permission. That permission was granted, and the instant proceedings by the neighboring property owners were brought to annul that decision by the Planning Board. In view of the determination in the prior article 78 proceeding, we are of the opinion, and intervenor in effect concedes, that it may use the M-1 premises for parking only if permission therefor is given by the Planning Board (cf. Friedman v. Park Lane Motors, 18 A.D.2d 262). We are also of the opinion that, under section 465.1 of the ordinance, permission may be granted only "if the said Board determines that it is impractical to provide parking on the same lot with the building." The board in its answer has stated that it found such impracticality and has given the reasons for its determination. In our opinion those reasons, adequately set forth in the answer (cf. Matter of Shell Oil Co. v. Farrington, 19 A.D.2d 555), are sufficient to justify the board's action. They include findings, which are undisputed, that the intervenor's plan complied in all respects with the provisions of the Zoning Ordinance, except as to the off-street parking requirements; and the board has concluded that it would be impractical to require intervenor to provide the required parking on the same lot with the building and that "to do so would deprive the intervenor of the right to develop its property in the manner and to the degree provided for in the Zoning Ordinance." We are of the opinion that the Planning Board's determination of impracticality has a rational basis in the record and is not arbitrary, capricious or illegal, and that, under the circumstances presented, the court may not substitute its judgment for that of the administrative agency charged with the duty of interpreting the broad language of the ordinance in the first instance (cf. Matter of Mounting Finishing Co. v. McGoldrick, 294 N.Y. 104, 108; Matter of Park East Land Corp. v. Finkelstein, 299 N.Y. 70, 74-75). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ.