June 16, 2015

In Robert E. Havell Revocable Trust v. Zoning Board of Appeals of Village of Monroe, 2015 WL 1810220, 2013–05746 (Index No. 9855/12), the Second Department affirmed the Zoning Board of Appeals’ determination that a conditional use permit was required for a tire sales establishment.

Petitioner had commenced a CPLR Article 78 proceeding seeking to reverse the decision of the Zoning Board of Appeals of the Village of Monroe that the proposed tire sale use required a conditional use permit and was not permitted as of right. The Supreme Court granted the petition because the ZBA failed to certify the zoning record and the Second Department reversed.

The Court began by examining the local Zoning Code. Under the local Zoning Code, conditional uses and uses permitted as of right are set forth on a zoning schedule. The uses listed in Column A are permitted as of right whereas the uses listed in Column C are permitted only with the approval of the Planning Board and are conditioned on special requirements that may be imposed “to ensure compatibility with neighboring uses.”

The permitted uses enumerated in Column A of the applicable schedule includes, among other uses, “retail sales” and “repair service, including automotive.” However, Column C includes “tire sales and service” among the conditional uses. As is the case with many local zoning codes, Section 200–3 of the Code of the Village of Monroe provides that “[i]n the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control” (Code of the Village of Monroe § 200–3 [B] ).

The Court reviewed the legal rule as follows: a statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance. In this case, the Court held that when construing the Zoning Code with its schedules as a whole, the Zoning Code provides that tire sales and related services are conditional uses.

It is also important to note that because the issue involved pure legal interpretation of statutory terms, the Court did not give deference to the Zoning Board’s decision, as is typically the case.

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