ADDITIONAL CASES Hill & Dale Property Owners, Inc., Kathy Kahng, Deborah Snow and Noreen Tierney, Petitioners-Plaintiffs v. Town of Kent Zoning Board of Appeals, Kent Investors II LLC, Hickory Homes and Property, Inc. and Titan Concrete Inc., Respondents-Defendants; 603 / 2017 The following papers numbered 1 to 10 were read on two Petitions for review of a July 17, 2017 determination by the Town of Kent Zoning Board of Appeals (hereinafter, the “ZBA”): Notice of Petition (598/2017) — Verified Petition / Exhibits 1-2 ZBA Verified Answer — Certified Return 3-4 Notice of Petition (603/2017) — Verified Petition and Complaint 5-6 ZBA Verified Answer — Certified Return 7-8 Kent Investors’ Verified Answer 9 Titan Concrete’s Verified Answer 10 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules DECISION ORDER AND JUDGMENT Upon the foregoing papers it is ORDERED that the Petitions are disposed of as follows: I INTRODUCTION The relevant factual and procedural background of the above-captioned matters was succinctly summarized by the Appellate Division, Second Department in Veteri v. Zoning Board of Appeals of Town of Kent, 202 AD3d 975 (2d Dept. 2022)1: “Kent Investors II, LLC (hereinafter Kent Investors), owns certain commercial property in the Town of Kent, on which a concrete batch plant operated since at least 1949. Pursuant to a 1937 zoning ordinance, the property was situated within a zoning district that prohibited the use of the property for, among other things, the manufacturing of products, unless certain conditions were met, including that fewer than five employees were engaged in such work. In 1948, the Zoning Board of Appeals of the Town of Kent (hereinafter the Zoning Board) issued a variance permitting the then-owner of the property to employ more than five people in operating a concrete manufacturing plant on the property. “Kent Investors purchased the property in 2016, and leased the property to Titan Concrete, Inc. (hereinafter Titan), to refurbish and operate the concrete plant. Following an accident during renovations, the building permit for the renovations was revoked. In February 2017, a Building Inspector for the Town noted that it had ‘come to [his] attention’ that the use of the property for concrete manufacturing was a preexisting, nonconforming use, and the Building Inspector issued findings that the property could no longer be used for concrete manufacturing due to an extended discontinuance of that use. Thereafter, Kent Investors discovered the 1948 variance, and requested that the Building Inspector rescind his prior findings based upon the variance. However, in a determination dated May 2, 2017, the Building Inspector adhered to his determination on the ground that the 1948 variance was not a use variance. Kent Investors appealed the Building Inspector’s determination to the Town of Kent Zoning Board of Appeals (hereinafter the ZBA). In a determination dated July 17, 2017, following a public hearing, the ZBA granted the appeal and vacated the Building Inspector’s determination. The ZBA concluded that the 1948 variance was a use variance that runs with the land to the benefit of the current owner, and thus, the Building Inspector was empowered to reissue a building permit for the premises. “Adjacent property owners John Veteri and Robert Addonizio…commenced a CPLR Article 78 proceeding to review the ZBA’s determination. In addition, adjacent property owner Hill & Dale Property Owners, Inc.…and three of its members, Kathy Kahng, Deborah Snow, and Noreen Tierney…commenced a hybrid CPLR Article 78 proceeding to review the ZBA’s determination and action for declaratory relief. The proceeding and the action/proceeding were joined for all purposes.” (Veteri v. Zoning Board of Appeals of Town of Kent, supra, 202 AD3d at 977-978.) II THE ZBA’s JULY 17, 2017 DETERMINATION After a public hearing on June 19, 2017, the ZBA issued Findings of Fact and a Decision granting Kent Investors’ appeal from the Building Inspector’s determination that the 1948 variance was not a use variance. Pertinent portions of the ZBA’s July 17, 2017 determination follow: “At a work session of the ZBA held on April 3, 2017, the Board took judicial notice that the Town of Kent Building Zone Ordinance (“BZO”) of 1937 placed the 301 Route 52 premises within the “C” zoning district, and the use regulations for the “C” district prohibited the use of premises for, among other things, the following trade, industry or use: Article VI, Section 1, Subsection b: (b) Any kind of manufacturing, fabricating, converting, altering, finishing, or assembling of products unless sold at retail on the premises to the ultimate consumer and unless fewer than five mechanics or workers are habitually employed or engaged on such work. “The existence of the 1937 BZO regulation raised the issue of whether the concrete batch plant became a legal prior non-conforming use due to this prohibition which was in effect at the time of commencement of the use. ….. “The impact of the 1937 BZO gave rise to further research and document inspections (under FOIL) by Kent Investors and its representatives. “It developed that, on July 8, 1948, the Town of Kent Zoning Board of Appeals granted a variance for 301 Route 52. The variance reads as follows: The Board has granted a variance of the Building Zone Ordinance, permitting you to employ more than five people in operating a concrete products plant on your property located on Route 52, between Carmel and Lake Carmel…a factor in the Boards [sic] decision is the understanding that the plant will not be constructed nearer than 300 feet to the frontline of your property on Route 52. “There is no dispute that this variance covers 301 Route 52. ….. “This 1948 variance was shared with the office of the Town Attorney. In an email dated April 27, 2017, to Kent Investors’ legal counsel, the Town Attorney concluded that manufac-turing was a permitted use in the “C” zone under the 1937 BZO, and that the five-employee standard was akin to a bulk or area requirement. It was concluded that the 1948 variance was an area variance rather than a use variance. “Responding to the interim submissions of Kent Investors filed on or about April 20, 2017, the Building Inspector issued another determination dated May 2, 2017. The determina-tion concluded that the 1948 variance was an area variance rather than a use variance because the 1937 BZO regulation designated manufacturing as a permitted use in the “C” zone subject to conditions which the 1948 variance excused. “On May 18, 2017, the Building Inspector declined Kent Investors’ request for reconsideration. “The appeal to this Board is from the May 2, 2017, substantive determination of the Building Inspector. ….. “The ZBA conducted a public hearing on June 19, 2017…. ….. “As briefed by the lawyers for the respective parties and interested persons, the primary issue presented to the ZBA is whether the 1948 variance is a use variance which eliminated a prohibition against manufacturing uses in the “C” zone under the 1937 BZO or whether manufacturing uses were permitted subject to conditions amounting to the equivalent of bulk regulations. “Presumably, it is the Building Inspector’s position that a use variance renders the manufacturing activity a conforming use and that an area variance leaves the premises non-conforming as to use and subject to the rules pertaining to prior non-conforming uses in the event of a subsequent change of municipal land use regulations pertaining to use. “There is no question that a use variance renders the subject use conforming and thereby negates applicability of local rules pertaining to prior non-conforming uses [cit.om.]. “The parties have not briefed the extent to which an area variance renders the premises conforming, and potentially immune, to local rules pertaining to prior non-conforming uses…. ….. “The ZBA concludes that the 1948 variance is a use variance, which runs with the land to benefit the current owner. “Article VI, Section 1, Subsection b of the 1937 BZO, on its face, is a prohibition of manufacturing uses in the “C” zone. The section provides that “…no building or premises shall be used for any of the following specified trades, industries or uses…”, unless the use is excused from the prohibition by adherence to certain standards. The relevant standards for manufacturing activity amount to both retain on-premises sales and employment of fewer than five workers. “In 1948, a prior owner sought and obtained relief from the fewer than five employee standard. The ordinance as written is unusual in that it is couched as a prohibition where only compliance with certain specific conditions lifts that prohibition, as opposed to the more common formula which lists allowed uses with the concomitant assumption that what is not specifically allowed is prohibited. The 1948 variance specifically modifies one of those conditions to allow for the expanded operation of the use, which otherwise would not have been allowed. To the extent that this modification alters the criteria that define the prohibition, allows for a change in the character of the use, and is unique to that property, it must fall logically to be a use variance. Although the granting of an area variance may result in an otherwise legal use to be located on a non-complying property, it never alters any aspect of the use itself. [The next six (6) paragraphs review cited case authorities, including Wilcox v. ZBA of the City of Yonkers, 17 NY2d 249 (1966); Matter of Kahn v. Village of Irvington, 87 NY2d 344 (1996); National Merritt v. Weist, 41 NY2d 438 (1977); Matter of Wambold v. Village of Southampton ZBA, 140 AD3d 891 (2016); Matter of Jacoby Real Property v. Malcarne, 96 AD3d 747 (2012); and Mobil Oil Corp. v. Village of Mamaroneck ZBA, 293 AD2d 679 (2002).] ….. “It should not be overlooked that the Town of Kent has a pattern and practice of treating concrete manufacture at 301 Route 52 as a permitted use. The Town of Kent and its officials have never characterized the use as one permitted due to prior non-conformity. “In a letter to the Planning Board dated July 2, 2004, the prior Building Inspector concluded that ‘…the site [301 Route 52] has been approved for manufacturing….’ “On January 13, 2005, the Town of Kent Planning Board issued approvals to 301 Route 52 for a conditional use permit, a site plan, and a wetlands permit. The Planning Board concluded that ‘…the site has historically been in industrial use for many decades, and certain uses of the site have not previously had the benefit of planning board review and approval.’ The purpose of the Planning Board approval as stated in its resolution, was to bring intervening site improvements for the sale of stone, gravel, concrete, wood chips, and other building and landscaping materials into compliance with site regulations. Implicit in the Planning Board’s resolution is that the site had been lawfully in use for industrial purposes for decades. “On March 3, 2005, the Town of Kent and a prior owner of 301 Route 52 negotiated and entered into a consent judgment before the Town of Kent Justice Court (Collins, J.) to resolve zoning infractions. There, the Town of Kent consented to the statement that the premises had historically been in industrial use for many decades, but that certain uses on site had not been reviewed by the Planning Board. The consent judgment incorporated Note 4 of the January of 2005 approved site plan that the land use and building permits for all existing structures (i.e. grandfathered or illegal) are to be approved. “The pattern and practice of the Town of Kent relative to 301 Route 52 is consistent with a recognition that the historic industrial and manufacturing use was both lawful and ran with the land. Nowhere does this pattern and practice indicate that the activity conducted on 301 Route 52 was a prior non-conforming use. “For these reasons, the ZBA grants the appeal of Kent Investors, negates the May 2, 2017 determination of the Building Inspector, finds that all prior appeals on this matter are academic, and concludes that the Building Inspector is empowered to reissue a building permit for the premises….” (Findings of Fact and Decision of Zoning Board of Appeals, issued July 17, 2017) III THE APPLICABLE STANDARD OF REVIEW In an Article 78 proceeding for review of an administrative determination such as that by the ZBA here, the only questions that may be raised are whether the determination “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion…” CPLR §7803(3). The ZBA framed the “primary issue” before it as “whether the 1948 variance is a use variance which eliminated a prohibition against manufacturing uses in the ‘C’ zone under the 1937 BZO or whether manufacturing uses were permitted subject to conditions amounting to the equivalent of bulk regulations.” The ZBA answered: The ZBA concludes that the 1948 variance is a use variance, which runs with the land to benefit the current owner. Article VI, Section 1, Subsection b of the 1937 BZO, on its face, is a prohibition of manufacturing uses in the “C” zone. The section provides that “…no building or premises shall be used for any of the following specified trades, industries or uses…”, unless the use is excused from the prohibition by adherence to certain standards. The relevant standards for manufacturing activity amount to both retain on-premises sales and employment of fewer than five workers. In 1948, a prior owner sought and obtained relief from the fewer than five employee standard. The ordinance as written is unusual in that it is couched as a prohibition where only compliance with certain specific conditions lifts that prohibition, as opposed to the more common formula which lists allowed uses with the concomitant assumption that what is not specifically allowed is prohibited. The 1948 variance specifically modifies one of those conditions to allow for the expanded operation of the use, which otherwise would not have been allowed. To the extent that this modification alters the criteria that define the prohibition, allows for a change in the character of the use, and is unique to that property, it must fall logically to be a use variance. Although the granting of an area variance may result in an otherwise legal use to be located on a non-complying property, it never alters any aspect of the use itself. Upon Article 78 review of the ZBA’s determination, it appears to the Court that the two essential questions are (1) did the ZBA correctly construe the 1937 BZO, and (2) under the 1937 BZO as properly construed, was the 1948 variance a use variance or an area variance? Before addressing those questions, the Court must first resolve a dispute between the parties as to the appropriate scope of judicial review. Petitioners contend that the ZBA’s determination is essentially one of law subject to de novo review for legal error. Respondents contend that the matter is one within the ZBA’s special expertise, to which the Court should defer so long as the ZBA’s determination is not irrational or unreasonable. The Court of Appeals recently summarized the principles bearing on that issue in Peyton v. NYC Board of Standards and Appeals, 36 NY3d 271 (2020). The Court wrote: “Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute” (Kurcsics v. Merchants Mut. Ins. Co., 49 NY2d 451, 459…[1980]). If the agency’s “interpretation is not irrational or unreasonable, it will be upheld” (id.)…. Conversely, when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency,” and its interpretation is “therefore to be accorded much less weight” (Kurcsics,49 NY2d at 459…; accord Toys “R” Us, 89 NY2d at 419…). If an agency’s interpretation “disregard[s] the plain meaning of the Zoning Resolution,” courts will afford it “little weight” (Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98, 106…[1997]). Still, “deference is appropriate where the question is one of specific application of a broad statutory term” (Matter of O’Brien v. Spitzer, 7 NY3d 239, 242…[2006]…). Peyton, supra, 36 NY3d at 280-281. The ZBA’s determination rests on three pillars: (1) a grammatical analysis of the language of the 1937 BZO; (2) a review and application of pertinent caselaw; and (3) the Town of Kent’s purported “pattern and practice of treating concrete manufacture at 301 Route 52 as a permitted use.” Analysis of statutory language and application of caselaw precedent are of course quintessential tools of the judiciary. The ZBA brought no special expertise to bear in interpreting either the 1937 BZO or the caselaw pertaining to use / area variances. Insofar as the ZBA’s determination rests on those pillars the Court sees little reason to defer to its analysis or conclusions. As for the Town of Kent’s “pattern and practice”, evidence thereof would potentially be helpful in discerning the meaning of the 1948 variance because the only documentation thereof is a brief letter which does not make clear whether the Town officials in 1948 were granting a use variance or an area variance: there is no extant application for the variance, no record of proceedings in 1948, and no formal resolution. In Scarsdale Shopping Center Associates, LLC, v. Board of Appeals on Zoning, 64 AD3d 604 (2d Dept. 2009), the Second Department wrote: Here, the resolution granting the use variance was destroyed in a fire and, as a result, the terms of the variance must be gleaned from the available extrinsic evidence [cit.om.]. That evidence is equivocal. The original card maintained by the Bureau of Buildings of the City of Rochelle with respect to the property reflects that the Board of Appeals “granted permission to erect an addition…as per plans submitted.” This language can be read as reflecting the Board of Appeals’ determination to limit the variance to the construction that was then proposed. To do so, however, would be inconsistent with the more compelling evidence derived from the conduct of the responsible municipal officials more proximate in time to the granting of the variance. That conduct included a course of approvals for additions to the shopping center over many years, none of which required a use variance, and many of which were explicitly referred to as being pursuant to the 1956 use variance… Id., 64 AD3d at 607 (boldface emphasis added). Unfortunately, the “pattern and practice” evidence referenced by the ZBA (as well as contrary evidence referenced by Petitioners) is not particularly helpful because it is neither proximate in time to the granting of the 1948 variance nor referable to that variance — i.e., it is dehors the two categories of evidence deemed probative by the Second Department in Scarsdale Shopping Center Associates, LLC, supra. The cited “pattern and practice” involves events that took place in the late 1990′s and early 2000′s — a half century after the 1948 variance was granted, and at a time when, so far as appears from the record, no one was even aware of the existence of that variance. The ZBA itself seems to have recognized that the “pattern and practice” evidence was of limited probative value: it was not a primary ground of the ZBA’s determination but only a makeweight which “should not be overlooked.” (July 17, 2017 ZBA Determination, p. 10) In the complete absence of any record of the 1948 proceedings, no factual analysis was undertaken by the ZBA. As Petitioners assert, then, the question here is one of pure legal interpretation of the 1937 BZO. “The ultimate responsibility of interpreting the law is with the court” (Chrysler Realty Corp. v. Orneck, 196 AD2d 631, 632 [2d Dept. 1993]), and inasmuch as “the question is one of pure legal interpretation of statutory terms, deference to the [zoning board] is not required.” Toys “R” Us v. Silva, 89 NY2d 411, 419 (1996). See, Peyton v. NYC Board of Standards and Appeals, supra. Finally, a review of the caselaw demonstrates that New York courts do not defer to administrative determinations by zoning boards as to what constitutes a use variance and what constitutes an area variance. In case after case, courts have (1) independently determined as a matter of law whether the matter at issue concerned a use variance or an area variance, and (2) applied the deferential rational basis standard only upon review of the zoning board’s determination whether the applicant satisfied the test for obtaining the variance in question. See, e.g., Matter of Colin Realty Co., LLC v. Town of North Hempstead, 24 NY3d 96 (2014); Khan v. Zoning Board of Appeals, 87 NY2d 344, 351 (1996); National Merritt, Inc. v. Weist, 41 NY2d 438, 441-442 (1977); Conley v. Town of Brookhaven Zoning Board of Appeals, 40 NY2d 309, 313-314 (1976); Matter of Overhill Bldg. Co. v. Delany, 28 NY2d 449, 453, 457 (1971); Wilcox v. Zoning Board of Appeals, 17 NY2d 249, 254-255 (1966); Matter of Monument Garage Corp. v. Levy, 266 NY 339, 343-344 (1935); Matter of Humphreys v. Somers Zoning Board of Appeals, 206 AD3d 1000, 1000-01 (2d Dept. 2022); McFadden v. Town of Westmoreland Zoning Board, 175 AD3d 1098, 1099-1100 (4th Dept. 2019); Matter of Route 17K Real Estate, LLC v. Zoning Board of Appeals, 168 AD3d 1065, 1066-67 (2d Dept. 2019); Mobil Oil Corp. v. Village of Mamaroneck Board of Appeals, 293 AD2d 679, 679-680 (2d Dept. 2002); Croissant v. Zoning Board of Appeals, 83 AD2d 673, 674 (3d Dept. 1981). In view of the foregoing, the Court will here conduct a plenary review to determine whether the ZBA’s conclusion that the 1948 variance was a use variance was “affected by an error of law.” See, CPLR §7803(3). IV INTERPRETING THE 1937 BZO A. Principles of Statutory Construction The Court of Appeals succinctly articulated basic principles of statutory construction in Peyton v. NYC Board of Standards and Appeals, supra: In matters of statutory interpretation, “legislative intent is the great and controlling principle” [cit.om.]. Because “the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” [cit.om.]. Courts generally “construe words of ordinary import with their usual and commonly understood meaning” [cit.om.], “unless the Legislature by definition or from the rest of the context of the statute provides a special meaning” [cit.om.]. A statute “must be construed as a whole,” and “its various sections must be considered together and with reference to each other” [cit.om.]…. Peyton, supra, 36 NY3d at 279-280. B. Article VI of the Town’s 1937 BZO Article VI of the 1937 BZO is quoted at length herein so that, as Peyton directs, the Court may assess Section 1, subdivision “b” thereof in context. Language which the Court deems especially material to the issue presented is rendered in boldface. C Districts, or Commercial Districts Section 1 Within any C District as shown on the Building Zone Map and as described in accordance with Article III, Section 4, no building or premises shall be used for any of the following specified trades, industries or uses: (a) Any trade or industrial purpose that is noxious or offensive or injurious by reason of the emission of odors, dust, smoke, gas or noise. (b) Any kind of manufacturing, fabricating, converting, altering, finishing, or assembling of products unless sold at retail on the premises to the ultimate consumer and unless fewer than five mechanics or workers are habitually employed or engaged on such work. (c) Any mechanical power plant exceeding five rated horse power or where steam pressure in excess of fifteen pounds gauge pressure is produced excepting that newspaper and job printing plants employing not more than five workers and ten rated horse power are permitted. (d) Junk yards. (e) Laundry employing more than five workers. (f) Dyeing where more than one dyer is employed. (g) Carpet cleaning or dry cleaning shop employing more than two workers. (h) Enameling, papering or lacquering except when applied by hand brush or by not more than two workers or by dipping in tanks of not more than five cubic feet capacity. (i) Metal working shop, blacksmith, tinsmith, plumbing, gas, steam or hot water fitting shop employing more than two workers on the premises. (j) Milk bottling or distributing station employing more than two workers. (k) Amusement park or circus. (l) Gasoline or oil storage above the ground in excess of 1000 gallons, or in excess of 200 gallons of motor fuel or 500 gallons of oil if within 50 feet of any street or lot line. (m) Gas storage in excess of 500 cubic feet, or 50 cubic feet if at over 100 pounds pressure per square inch. (n) Advertising signs other than those attached to buildings and advertising goods sold on the premises when placed below the cornice line of such buildings and projecting not more than five inches from the surface of such buildings. (o) Real estate signs more than ten square feet in area within twenty feet of any street line or three feet of any structure or advertising any property other than that on which they are placed. Section 2 A building may be used within any C District for any use permitted in any residential district and also for the following specified purposes: (a) Dwellings for two or more families provided that no buildings shall be erected or altered to accommodate more than one family for each 1000 square feet of lot area. (b) Gasoline filling station or public garage or public storage garage or livery stable or private garage for more than five motor vehicles when granted a special permit by the Board of Appeals after hearing and in accordance with the provisions of Article X. (c) Any business, professional, social, educational or commercial purposes not conflicting with the requirements of Section 1 of this article. Internal combustion engines may be used provided that vibration be eliminated and the engine be equipped and operated with an effective muffler or silencer so as to eliminate noise. Section 3 One-family buildings and two-family buildings in any C District shall comply with the height and area regulations governing B District. All other buildings in C Districts shall be built in accordance with and subject to the following regulations: (a) (b) (c) (d) (e) [Height and area / lot regulations.] C. Analysis Does the 1937 BZO prohibit or not allow manufacturing in C Districts unless the specified conditions are met? OR Does the 1937 BZO permit manufacturing in C Districts subject to conditions in the nature of bulk requirements? Analysis of the language and structure of Article VI of the 1937 BZO shows: (1) C Districts are “Commercial” districts. (2) The ordinance distinguishes between, on the one hand, “industrial” and “trade” uses, and on the other, “commercial” uses. Section 1 governs the use of buildings or premises for “specified trades, industries or uses.” Section 2 governs the use of buildings for “business, professional, social, educational or commercial purposes.” (3) The ordinance also distinguishes between prohibited uses (§1) and permitted uses (§2). (4) Section 1 on its face prohibits the use of buildings or premises for specified trades, industries or uses, either (A) outright, in the case of inherently noxious or offensive uses (e.g., subd. a, d, k), or (B) unless limited in scope (e.g., subd. b-c, e-j), and/or (C) unless incidental to a retail business conducted on the premises (e.g., subd. b, n). (5) Conversely, Section 2 on its face permits the use of buildings for any “business, professional, social, educational or commercial purposes” not conflicting with the requirements of Section 1. (6) The ordinance makes separate provision in Section 3 for what are traditionally regarded as height / area / lot bulk requirements. It is in this contextual framework that the 1937 BZO Article VI, Section 1(b) provision regarding “manufacturing” must be construed. The provision states: [N]o building or premises shall be used for any of the following specified trades, industries or uses: (b) Any kind of manufacturing, fabricating, converting, altering, finishing, or assembling of products unless sold at retail on the premises to the ultimate consumer and unless fewer than five mechanics or workers are habitually employed or engaged on such work. This provision on its face prohibits the manufacturing of products in Commercial districts unless (1) the products are sold at retail on the premises to the ultimate consumer, and (2) fewer than five workers are habitually engaged on such work. Viewing subdivision 1(b) in light of Article VI as a whole, “manufacturing” is logically construed as a prohibited “industrial” use (§1) prima facie incompatible with the “commercial” uses permitted in C Districts (§2) — unless, as subdivision 1(b) provides, the manufacturing operation is limited in scope and character by virtue of the restricted number of workers engaged therein and its subordination to a commercial retail use of the premises. Upon this reading of the ordinance, a manufacturing operation conducted in a C District with more than five employees and/or independently of a commercial retail business on the premises must logically be considered an industrial use of a nature inconsistent with the essen-tial character of C (Commercial) Districts. To construe subdivision 1(b) otherwise, i.e., as permissive of manufacturing, and its prescribed conditions as merely in the nature of bulk requirements, would do violence to the language and structure of the ordinance. Article VI, subdivision 1(b) is on its face prohibitive, not permissive; the ordinance explicitly distinguishes between prohibited industrial uses (§1) and permitted commercial uses (§2); and the ordinance makes separate provision for bulk requirements (§3). The purpose of such a scheme of zoning was elucidated by the court in Z&Z East Hills Corp. v. Incorporated Village of East Hills, 45 Misc.2d 181 (Sup. Ct. Nassau Co. 1964), which therein construed a zoning ordinance analogous to the Town of Kent’s 1937 BZO. The East Hills ordinance permitted the use of buildings and premises for certain prescribed purposes “and for no other purposes or uses.” Among the prescribed purposes was the following: Any manufacturing, fabricating, treating, converting, finishing, altering or assembling, in connection with any one of the aforesaid permitted uses and which is a necessary incident and accessory to the preparation of articles to be sold primarily at retail on the premises, or to the performing of a service primarily for residents of the neighborhood, and on a scale requiring not more than five (5) horsepower and not more than five (5) operatives engaged on such work and to an extent involving for such work not more than three-quarters of the entire first floor space of the building…. See, id., 45 Misc.2d at 182. The East Hills court made two especially significant findings. First: The court finds that it is the purpose of the ordinance to control the size of a permitted business in the Business “B” District. It was enacted in an effort to control the size of the business but still permit certain necessary incidental manufacturing, fabricating, treating, converting, finishing, altering or assembling, to be carried on in conjunction with the primary activity. Id., at 183 (boldface emphasis added). It is similarly evident from Article VI, Section 1 [subd. "b", "c", and "e" through "j"] and Section 2[c] of the 1937 BZO that a fundamental purpose of the Town of Kent’s ordinance was to control the size of manufacturing and other “industrial” or “trade” operations in C Districts so as to prohibit uses inconsistent with the “commercial” character of C Districts without excluding manufacturing that was limited in scope and ancillary to commercial retail uses permitted in such Districts. Second: The placing of property in a zone wherein control of the size of a business based upon the number on employees or the size and power of a motor is similar to the establishment of separate and distinct zoning areas for the erection of single or multifamily dwelling houses. Id., at 183 (boldface emphasis added). Here, similarly, since controlling the size of manufac-turing operations to assure compatibility with permitted commercial uses in Commercial Districts was a fundamental purpose of the 1937 BZO, the prescribed limit on the number of employees engaged in such operations goes to the essential use of the premises — distinguishing light, small-scale “craft” or “cottage industry” type manufacturing incidental to a permitted commercial enterprise from prohibited industrial-scale manufacturing in a manner analogous to the distinction in use between single-family and multi-family dwellings.2 V USE VARIANCES AND AREA VARIANCES Over the years the Court of Appeals has on various occasions addressed the distinction between “use variances” and “area variances.” Generally, a use variance will allow use of land as a matter of discretion in circumstances when the desired exceptional use has been proscribed by the zoning regulations [cit.om.].…. “Generally speaking, an area variance involves no change in the essential character of the zoned district” [cit.om.], nor does it seek to change the essential use of the land [cit.om.]. Thus, an area variance involves “matters such as setback lines, frontage requirements, lot-size restrictions, density regulations, and yard requirements” [cit.om.]. Khan v. Zoning Board of Appeals, 87 NY2d 344, 351 (1996). …[A] prohibited use, if permitted, will result in a use of the land in a manner inconsistent with the basic character of the zone…[cit.om.]…. An “area” variance is one which does not involve a use which is prohibited by the zoning ordinance, while a “use” variance is one which permits the use of land which is proscribed [cit.om.]… Consolidated Edison Co. of New York, Inc. v. Hoffman, 43 NY2d 598, 606-607 (1978). [S]ince the variance sought in this case does not involve a use prohibited by the village zoning ordinance and does not seek a change in the “essential use of the land”, it should be characterized as an area variance [cit.om.]….[T]he distinction is an important one since, in the usual case, a use variance will have a greater impact on the community than an area variance which does not involve a use prohibited by the ordinance [cit.om.]. National Merritt, Inc. v. Weist, 41 NY2d 438, 441 (1977). [G]enerally, an area variance will release a landowner from the duty to follow the strict letter of the zoning ordinance so that the land may be put to a permitted use. On the other hand, a use variance, if granted, will result in the use of land in a manner inconsistent with the basic character of the neighborhood. [cit.om.] Conley v. Town of Brookhaven Zoning Board of Appeals, 40 NY2d 309, 313-314 (1976). “In general an area variance is one which does not involve a use which is prohibited by the zoning ordinance while a use variance is one which permits a use of land which is proscribed (see Anderson, Zoning Law and Practice in New York State, Section 18.04-18.05; Rathkopf, the Law of Zoning and Planning, Section 45-1)…” Matter of Overhill Bldg. Co. v. Delany, 28 NY2d 449, 453 (1971). Generally, speaking, an area variance involves no change in the essential character of the zoned district…[cit.om.]….[I]n an area zoned for apartment houses, to seek a variance of height, floor area, and density is to seek an area variance because the essential use of the land is not being changed… Wilcox v. Zoning Board of Appeals, 17 NY2d 249, 254-255 (1966). When the variance is one of area only, there is no change in the character of the zoned district… Hoffman v. Harris, 17 NY2d 138, 144 (1966).3 Generally speaking, then, a “use variance” involves a use prohibited by the zoning ordinance and results in a change in the essential character of the zoned district; an “area variance” releases a landowner from the strict letter of the zoning ordinance — typically with regard to such matters as setback lines, frontage requirements, lot-size restrictions, density regulations, yard requirements, etc. — so that the land may be put to a permitted use. Petitioners rely heavily on the Court of Appeals’ decision in Wilcox v. Zoning Board of Appeals, supra, in asserting that the 1948 variance permitting Kent Investors’ predecessor-in-interest “to employ more than five people in operating a concrete products plant” on the subject property was an area variance, not a use variance. To comprehend Wilcox it is necessary to quote the decision at some length. These three proceedings have been instituted to review the determination of the Zoning Board of Appeals of the City of Yonkers which granted a variance to Westview Towers Corp. permitting the construction of a 156-family apartment building…. ….. The applicable zoning ordinance divides the location where apartment houses may be built into four districts: ‘MG’ (apartment houses, low density), ‘M’ (apartment density), ‘A-2′ (apartment houses, high density), ‘A-1′ (apartment houses, highest density). In the MG District, the maximum permitted height is three stories but not exceeding 39 feet. Westview’s proposed building would be 55 feet high, six stories in the front and nine in the rear. The maximum permitted floor area ratio for an apartment in an MG District is 1.00. Westview’s building will have a floor area ration of 1.58. The minimum permitted lot area per family is 1,500 square feet. Westview’s building will have a lot area per family of 790 square feet. A variance with regard to all these particulars was granted by the board. The petitioners, seeking to annul the grant of the variance, brought these proceedings in Supreme Court, Westchester County. Special Term (Dillon, J.) dismissed the petitions and upheld the grant of the variance. The Appellate Division, reversing Special Term, considered the variance requested to be a use variance or at least a combined use variance and area variance and remitted the matter to the zoning board to take proof which would satisfy the requirements of the leading use variance case…. Obviously, the pivotal question on this appeal is whether we are concerned with a use variance or an area variance. Generally speaking, an area variance involves no change in the essential character of the zoned district; therefore, the neighborhood considerations are not as strong as in a use variance…. A variance relating to the height of an apartment house, in an area zoned for apartments, is an area variance and not a use variance…. The Appellate Division, as well as the respondent, places great reliance on Matter of Markovich v. Feriola, 41 Misc.2d 1051…, affd. on other grounds 22 AD2d 691….In Markovich the lower court, interpreting the Yonkers zoning ordinance, held that a change in density standards creates a change in classification with the consequence that both practical difficulties [i.e., the standard for granting area variances] as well as unnecessary hardship [i.e., the standard for granting use variances] must be proven in order to obtain the variance…In other words, the approach taken classified the variance sought as a combined area and use variance….We disapprove of the lower court’s holding in Markovich, and we hold that, in an area zoned for apartment houses, to seek a variance of height, floor area, and density is to seek an area variance because the essential use of the land is not being changed. In such a situation, the essential use remains the same (apartments), although the particulars (height, lot area, floor area ratio) of said use may be different…. Wilcox v. Zoning Board of Appeals, supra, 17 NY2d at 253-255 (boldface emphasis added).4 Applying Wilcox to the case at bar, Petitioners assert in substance that (1) the 1937 BZO permits manufacturing in C Districts, (2) the specified conditions therefor — that the products be sold at retail on the premises to the ultimate consumer, and that fewer than five workers be habitually engaged on such work — are akin to specifications for particulars like height, floor area and density, and (3) per Wilcox, a variance from those specifications does not change the essential use of the land and is therefore an area variance. Query, however, whether the fundamental predicate for the Court of Appeals’ holding in Wilcox is present here? In Wilcox, the petitioner was allowed to build an apartment building in a district zoned for apartments. That is why, in the Court of Appeals’ view, the “essential use” of the land was not changed despite the granting of a variance from applicable height and density requirements. Here, in contrast, Kent Investors’ predecessor-in-interest was allowed to build a concrete manufacturing plant — unconstrained by the number of workers employed — in a district zoned for commercial uses, not industrial uses, wherein manufacturing was explicitly prohibited unless the operation was severely restricted in scope and incidental to a permitted commercial retail enterprise. The essential difference in use between, on the one hand, general business and commer-cial enterprises, and on the other, manufacturing and industrial enterprises, is recognized in the law and practice of zoning. Historically, The general American Scheme for the division of an area into zones for the purpose of use control has followed the following plan: the first division being business, residential and unrestricted districts then, “business zones may be classified for different classes of business into local business, commercial, and light manufacturing, and industrial districts.” 58 Am.Jur. 961 and the cases therein cited. Whitmier & Ferris Co. v. Town of Tonawanda, 64 MIsc.2d 787, 789 (Sup. Ct. Erie Co. 1964). Accordingly, a use variance is required for a manufacturing or industrial enterprise in a district zoned for commercial uses, and vice-versa. See, Bellanca v. Gates, 97 AD2d 971 (4th Dept. 1983), aff’d 61 NY2d 878 (1984) (use variance to permit use of parcel zoned part commercial and part residential for industrial purposes); O’Connell Machinery Co., Inc. v. City of Buffalo Zoning Board of Appeals, 60 AD3d 1353, 1353-54 (4th Dept. 2009) (use variance to permit use of parcel zoned light industrial for mixed residential and commercial purposes); Concerned Residents of New Lebanon v. Zoning Board of Appeals, 222 AD2d 773, 774 (3d Dept. 1995) (use variance required to permit use parcel zoned commercial for industrial asphalt plant); Salomone & Co. v. State of New York, 40 AD2d 916 (3d Dept. 1972) (parcel rezoned from retail commercial to industrial to permit erection of metal fabrication plant); 2 N.Y. Zoning Law & Prac. §29.4 (2022) (“a variance…which permits an industrial use in a district limited to commercial uses, is a use variance”); 1 Zoning & Plan. Deskbook §6:7 (2d ed. 2022) (“use variance would permit an industrial use in a commercial zone”). Based on the analysis set forth in Parts IV and v. of this decision, the Court concludes that the present case does not fall within the parameters of Wilcox because the 1948 variance authorized a use prohibited by the 1937 BZO and resulted in a change in the essential character of the C (Commercial) District by permitting a manufacturing operation which, unconstrained by the number of employees engaged in the work, was actually or potentially industrial in nature and hence incompatible with the commercial uses authorized in C Districts. VI CONCLUSION The Court has considered the remaining issues raised by Petitioners and finds them to be without merit. Since the ZBA correctly determined that the 1948 variance at issue here was a use variance, its July 17, 2017 must be upheld and these proceedings must be dismissed. It is therefore ORDERED, ADJUDGED AND DECREED, that the Petition in Index No. 598/2017 and the Petition / Complaint in Index No. 603/2017 are hereby dismissed. The foregoing constitutes the decision, order and judgment of the Court. Dated: November 28, 2022
