Berkman Henoch Obtains Order Annulling Decision of Board of Zoning Appeals
Berkman Henoch commenced an Article 78 Petition on behalf of an adjoining property owner seeking to annul the decision by the Board of Zoning Appeals of the Village of Mill Neck that granted a neighbor’s application for variances that, among other things, allowed for the construction of a second-story addition to an existing nonconforming residence and the construction of detached three and one-half (3 ½) car garage.
The Village of Mill Neck’s Code limits the expansion of a nonconforming structure to just 25% of its original “cubical content.” The BZA however, in calculating the proposed expansion, failed to include the existing home’s prior recent expansion when calculating the size or percentage of the proposed increase. The BZA maintained that a home’s prior expansion is irrelevant when calculating the increase in cubical content so long as each separate proposed expansion increases the cubical content by less than 25%.
In rejecting the BZA’s interpretation of its Code, the Supreme Court, Nassau County (Daly-Sapraicone, J.S.C.) adopted Berkman Henoch’s argument that the BZA’s interpretation is incompatible with public policy that favors the restriction or eventual elimination of nonconforming uses. The Court stated that in “interpreting the statute, it ‘must be given a sensible and practical over-all construction, which … harmonizes all its interlocking provisions’ (Bank of Am., N.A. v. Kessler, 39 NY3d 317, 325 [2023] quoting Matter of Long v. Adirondack Park Agency, 76 NY2d 416, 420 [1990]). Moreover, ‘[i]t is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other’ (People v. Mobil Oil Corp., 48 NY2d 192, 199 [1979]). To embrace the construction advocated by the Respondents [the Barnes and the Village] that § 129-79 (C) ‘explicitly measures volume from each subsequent addition’ would effectively nullify § 129-79 (A), the latter of which is expressly incorporated into the former and provides that a ‘repair or alteration shall not increase the degree of nonconformity of the building or extend a nonconforming use’ (id.;Bank of Am., N.A. v. Kessler, 39 NY3d at 325).”
Based on the foregoing, the Court granted the Article 78 petition and annulled the BZA’s decision that granted the requested variances.
The Petitioners were represented by Joseph E. Macy, Esq., Daniel J. Evers. Esq. and Nicholas S. Tuffarelli, Esq. – members of Berkman Henoch’s Litigation Department.