LLC ANTHONY CABRERA 78 v. AS CHAIRMAN OF THE YONKERS ZONING BOARD OF APPEALS AND JAMES GIBBONS AS COMMISSIONEROF HOUSING AND BUILDINGS (2026)

Petitioners filed a notice of petition and petition pursuant to the Civil Practice Laws and Rules (CPLR) 7801 for a determination that the decision and order of the Yonkers Zoning Board of Appeals (hereinafter referred to as the "ZBA"), dated February 19, 2026, which denied petitioners' request for an area variance, was arbitrary, capricious and an abuse of discretion. Petitioners also argue that the determination by the ZBA resulted in an unlawful taking of petitioners' property (Motion Seq. No. 1).

Respondents filed a motion to dismiss the verified petition on objections on points of law the grounds pursuant to CPLR 404, 3211 (a) (1), (5), (7) & (10), and 7804 (f) (Motion Seq. No. 2).

The following papers were read and considered in connection with the verified petition and notice of petition and respondents' motion:

PAPERS NYSCEF Doc. Nos. Motion Seq. No. 1

Petition with exhibits 1-12

Notice of Petition and Memorandum of Law in Support 13-14

Motion Seq. # 2

Notice of Motion, Affirmation in Support of Motion & Respondents' Memorandum of Law with exhibits 25-29

Petitioner's Affirmation in Opposition 30

Respondents' Reply Affirmation 32

For the reasons detailed herein, respondents' motion to dismiss the verified petition is granted.

FACTUAL AND PROCEDURAL BACKGROUND

The instant proceeding was commenced by the filing of a verified petition and notice of petition pursuant to CPLR 7801 seeking the reversal of a decision and order of the Yonkers Zoning Board of Appeals, which denied petitioners' request for an area variance (NYSCEF Doc. No. 1 and 13). The petition named Wilson Kimbal, as Chairman of the Yonkers Zoning Board of Appeals, and James A. Gibbons, as Commissioner of the Yonkers Department of Housing and Buildings, as respondents.

According to the petition, in 2021 petitioners purchased an irregular shaped lot in Yonkers, New York, with the intention of constructing a 10-unit building on the site. The premises are described as Block 133, Lot 3, 94 Andrews Pace, Yonkers, New York 10705. There was a prior 10-unit four story building on the site that was destroyed by fire, and petitioners allege that they had an expectation that the prior antecedent rights to construct such a premises would not be interfered with by government interference.

By way of background, the petitioners filed an application for a building permit with the Yonkers Department of Housing and Building (hereinafter referred to as "YHB").  ¹ The application review indicated that there was a zoning review denial from January 31, 2024 (NYSCEF Doc. No. 2).

On or about November 7, 2024, petitioners applied to the Yonkers Zoning Board of Appeals (hereinafter "ZBA") for a variance to review YHB's denial (NYSCEF Doc. No. 3)

YHB subsequently issued a building application denial on July 21, 2025, which was based on insufficient front yard (required 25'-0', proposed 3' (4' Average); insufficient side yard (required 16'-0"/32'-0, proposed 0'/0"); insufficient spaces for parking (required 14 spaces, proposed 5), exceeding maximum permitted building coverage (required 40%, proposed 52%), exceeding maximum permitted floor area ratio (required 13,122.36 sq. ft., proposed 14,628 sq. ft.) (NYSCEF Doc. No. 11).

Following a hearing that was held before the ZBA to consider petitioner's application for an area variance on January 21, 2026, the ZBA issued a resolution of denial on February 19, 2026 (NYSCEF Doc. No. 12). According to petitioners, the rationale for the ZBA's denial of the area variance was solely based on the parking issue.

The instant Article 78 proceeding ensued (NYSCEF Doc. No. 1 and 13). Petitioners seek a reversal of the ZBA's denial of the request for an area variance, or alternatively, a remand to the ZBA for further proceedings. Petitioners posit that since they were seeking to erect a structure similar to the one that was previously located on the lot, the ZBA's decision denying the variances amounted to an unlawful "taking" of their property (NYSCEF Doc. No. 14).

Respondents filed the instant motion (Mtn. Seq. No. 2) arguing that the petition should be dismissed pursuant to CPLR 3211 (a) (1), (5), (7) and (a) (10). Respondents further argue that petitioners seek relief which may not be granted pursuant to CPLR 7804 (f) (NYSCEF Doc Nos. 25-26 & 29). Most significantly, respondents posit that the petition should have been brought against the ZBA since it was the governmental body that denied the request for the area variance and that, under General City Law §§ 81, 81-a and 81-b, and Yonkers City Charter § C8A-2, the individual respondents lack the power to reverse the ZBA's determination or remand the matter for consideration of new plans (NYSCEF Doc. Nos. 26). Respondents further argue that even if the proceeding was brought against the ZBA, it would fail because the ZBA's denial was not arbitrary, capricious or an abuse of discretion and it did not constitute an unlawful taking.

Petitioners oppose the motion arguing that it is the custom and practice to only name the chairman of the ZBA in Article 78 proceedings such as the one herein. To illustrate the point, petitioners rely on several Supreme Court decisions that did not contain the respective zoning boards of appeal as a party (NYSCEF Doc. Nos. 31). Petitioners also argue that their petition is not barred by the statute of limitations because the petition was timely served upon the ZBA and the petition has substantive merit. Furthermore, petitioners argue that the denial of the variances by the ZBA amounted to a "taking" of their property and thus, the constitutional issues raised in their petition precludes its dismissal (NYSCEF Doc. No. 30).

ANALYSIS

"In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action taken is illegal, arbitrary and capricious, or an abuse of discretion" (Matter of Harbor Park Realty, LLC v. Modelewski, 116 AD3d 1040, 1041, 984 NYS2d 601[2nd Dept 2014]; see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613, 781 NYS2d 234, [2004]). In applying the "arbitrary and capricious" standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith" (Matter of Cowan v. Kern, 41 NYS2d 591, 599, 394 NYS2d 579, 363 NE2d 305 [1977]; see Matter of Pell v. Board of Educ., 34 NY2d 222, 231, 356 NYS 2d 833, 313 NE2d 321 [1974]; Jonas v. Stackler, 95 AD3d 1325, 1327, 945 NYS2d 405, 2012 NY Slip Op 04171 [2d Dept 2012]).

Pursuant to CPLR 7802 an article 78 proceeding may only be brought against "the body or officer" involved in the determination to be reviewed by the Court (see Matter of Lucas v. Board of Appeals of Vil. of Mamaroneck, 109 AD3d 925, 929-930, 974 NYS2d 464, 2013 NY Slip Op 05908 [2d Dept 2013]; D.B.C.G., Inc. v. Town of Ramapo, Appellant, 97 AD2d 533, 468 NYS 2d 37 [2d Dept 1983]); see also CPLR 1001 (a).

In the case at bar, the Chairman of the ZBA and the Commissioner of the YHB did not deny the area variance sought by the petitioners as the determination was in fact made by the ZBA. For reasons unknown to the Court, petitioners neglected to name the ZBA as a party.

The Court also notes that the Commissioner of the YHB has no authority regarding the issuance of the variances that are in issue here. When looking to develop property in Yonkers, the developer seeks a permit from the YHB (see Yonkers City Charter and Code of Ordinances). YHB will issue the permit or direct the developer to obtain a variance from the ZBA. It is the ZBA, not any individual member of the ZBA, who makes the determination on whether to issue the variance (see General City Law § 81-b). As such, the individual respondents named herein are not the proper parties to this article 78 proceeding (see e.g. Matter of Lucas v. Board of Appeals of Vil. of Mamaroneck, 109 AD3d 925, 929-930, 974 NYS2d 464, 2013 NY Slip Op 05908 [2d Dept 2013]).

Petitioners' argument that it is the custom and practice to name the chairman of the ZBA is not supported by appellate legal precedent, and is thus, unpersuasive. Furthermore, the sampling of cases that petitioners provided to support their position that the ZBA is not a necessary party (see NYSCEF Doc. No. 31) did not directly address the issue of whether the ZBA was a necessary party in those proceedings and, therefore, they are not persuasive.

Moreover, in Wittenberg Sportsmen's Club, Inc. v. Town of Woodstock Planning Board, et al, 16 AD3d 991, 792 NYS2d 661, 205 NY Slip Op 02514 (3d Dept 2005), the Appellate Division, Third Department, upheld Supreme Court's dismissal of an article 78 proceeding on the grounds that the Woodstock Zoning Board was a "necessary" party to the proceeding and found that "a court may not adjudicate a dispute raised in a CPLR article 78 proceeding unless the governmental agency which performed the challenged action is a party thereto." Id. at 993 (internal citation omitted); see also Matter of Bosco v. McGuire, 111 AD3d 931, 933 (2d Dept 2013); La Russo v. Neuringer, 105 AD3d 743, 744 (2d Dept 2013); Navaretta v. Town of Oyster Bay, 72 AD3d 823, 826 (2d Dept 2010).

Therefore, since the petitioner in the instant action failed to name the ZBA and only named the Chairman of the ZBA and the Commissioner of the YHB, this article 78 proceeding is defective because it fails to name a necessary party. Moreover, the time to commence an Article 78 proceeding against the ZBA under General City Law § 81-c has expired.

In the alternative, even if the ZBA were added to this proceeding, dismissal of the petition is still warranted on the basis that the determination of the ZBA was not "illegal, arbitrary and capricious, or an abuse of discretion" (see cases cited, supra). In this vein, the Court finds that the ZBA properly weighed and considered the applicable factors set forth in General City Law § 81-b in reaching its determination that there was insufficient front and side yardage, insufficient spaces for parking, and the proposed structure exceeded the maximum permitted floor ratio (NYSCEF Doc. No. 28).

In addition, petitioners have not met their burden of showing an unconstitutional taking merely by pointing out that a similar structure once existed on the premises and that they had an expectation that reconstruction would be allowed. In that regard, petitioners are presumed to have knowledge of Yonkers City Code 43-21 (C) which provides, in relevant part, that "if a nonconforming use ceases for any reason for a period of 12 consecutive months, or is changed to a conforming use, any future use of the land, building or structure shall be in conformity with the provisions of this chapter."

Also, as noted by respondents, it is well settled that a property owner has no vested right to develop or redevelop property in its previously developed, nonconforming manner when variances are required to do so (see Matter of Bobandal Realties, Inc. v. Worthington, 21 AD2d 784, 785 [2d Dept 1964]; Matter of Pelham Esplanade, Inc. v. Board of Trustees of Village of Pelham Manor, 77 NY2d 66, 73 [1990]; Matter of Cucci v. Zoning Bd. of Appeals of Town of Huntington, 154 AD2d 372, 373 [2d Dept 1989]; Matter of Gazza, 89 NY2d 603, 611 [1997]).

The Court also finds that the need for sufficient parking is a legitimate governmental interest (see e.g. Matter of Overhill Bldg. Co. v. Delany, 28 NY2d 449 [1971]; and Matter of Ballroom Productions, Inc. v. Abrams, 86 AD2d 661 [2d Dept 1982]).

In short, the Court finds that petitioners have failed to establish that the ZBA's determination amounts to an unconstitutional taking without compensation (see Matter of Mangan v. Cianciulli, 19 AD3d 598 (2d Dept 2005) [internal citations omitted].  ²

The court has considered the parties' remaining contentions, despite the absence of any specific reference thereto, and finds them to be without merit or rendered moot by certain aspects of this decision and order.

CONCLUSION

Accordingly, it is hereby

ORDERED, that respondents' motion (Mtn. Seq. No. 2) to dismiss the verified petition is hereby GRANTED.

The foregoing constitutes the Decision and Order of the court.

Dated: September 9, 2026

White Plains, New York

E N T E R:

HON. WALTER RIVERA, J.S.C.

FOOTNOTES

1.   The date of this application is unknown.

2.   Petitioners are free to submit revised plans to the ZBA addressing the parking and other concerns that prompted the denial of the area variance by the ZBA. In this vein, petitioners' request for a remand to the ZBA suggests that petitioners are aware that other viable options exist for the reconstruction of a multi-unit building on the subject lot.

Walter Rivera, J.