The following papers numbered 1 to 43 were read on this notice of petition/petition of Mamaroneck Beach & Yacht Club Inc., and Mamaroneck Beach & Yacht Club, LLC ("petitioners") brought pursuant to CPLR Article 78 seeking to annul a determination dated November 2, 2006 made by respondents the Zoning Board of Appeals of the Village of Mamaroneck, Mauro Gabriele, George Mgrditchian, Clark Neuringer, Peter Jackson, and Gregory Sullivan, Individually and as Members of the Zoning Board of Appeals of the Village of Mamaroneck (collectively referred to as the "ZBA") pursuant to an appeal brought by respondents Leonard Aubrey, Individually and as President of the Shore Acres Property Owners Association, Stewart Sterk, Rosyln Wood, Beth Hoffstettler and Dan Natchez, Individually and as Officers and Directors of Shore Acres Property Owners Association (collectively referred to as "SAPOA") of a determination made the Village of Mamaroneck's Building Inspector dated January 14, 2004:

PAPERSNUMBERED

Notice of Petition/Verified Petition/

Affidavit of Joel H. Sachs, Esq./Exhibits A-W1-26

Verified Answer27

Affirmation of Joseph C. Messina, Esq. Requesting Judicial Notice/Exhibits 1-328-31

Memorandum of Law in Opposition32

Verified Answer of Respondents Shore Acres Property Owners Association

Leonard Aubrey, Stewart Sterk, Rosalind Wood and Beth Hoffstetter33

Motion to Dismiss on Behalf of Leonard Aubrey, Rosyln Wood, Stewart Sterk

Stewart Sterk and Beth Hofstettler, Exhibits B-D34-37

Affidavit of Leonard Aubrey38

Affidavit of Dan Natchez39

Reply Affirmation of Paul J. Noto, Esq., Exhibits A-B40-42

Reply Memorandum of Law43

Upon the foregoing papers, the Article 78 proceeding is disposed of as follows:

FACTUAL AND PROCEDURAL BACKGROUND

Prior Actions and Proceedings

Petitioner Mamaroneck Beach & Yacht Club, LLC (" LLC") owns a beach and yacht club (the "Club") located on a 12.84 acre site in the Marine Recreation District (the "MR District") in the Village of Mamaroneck (the "Village"). LLC leases the Club to Mamaroneck Beach and Yacht Club, Inc. The history of petitioners' application to obtain site plan approval from the Village's Planning Board, which was submitted over three years ago on January 9, 2004, for a proposal to update and expand the Club,^[FN1] is long and tortuous. The factual and procedural background of the dispute has been fully set forth in this Court's prior decisions regarding separate but interrelated proceedings (Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, et al., Index No. 5565/04 [April 20, 2004] [hereinafter the "December 2004 Decision"] [Petition, Exhibit I]; Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, et al., Index No, 05565/04 [April 20, 2006] [hereinafter the "December 2006 Decision"] [Petition, Exhibit M]; Mamaroneck Beach & Yacht Club, Inc. v Board of Trustees of the Village of Mamaroneck, et al., Index No. 11115/04 [July 15, 2005]; Mamaroneck Beach and Yacht Club, Inc. v Board of Trustees of the Village of Mamaroneck, Index No. 08818/05 [November 16, 2005]) to which the Court refers to herein.^[FN2] [*2]

In this, the fifth proceeding^[FN3] brought before this Court, the Court is asked to review a determination made by the ZBA, which reversed the January 14, 2004 decision of the Village of Mamaroneck's Director of Building (the "Building Inspector") that the 31 seasonal residences^[FN4] proposed by petitioner, ranging in size from 700 square feet to 1000 square feet, and destined to be used as seasonal residences (April-October) by petitioners' members and guests of members, were indeed the permitted accessory use of seasonal residences set forth in the Village of Mamaroneck's Zoning Code (the "Zoning Code") § 342-35(B)(6) (see Memorandum dated 1/14/04 from Director of Building, Richard Carroll to Planning Board, Petition, Exhibit D). Eleven of the units would be located in the existing Clubhouse facility and would consist of nine studio and two one-bedroom apartments. The remaining twenty units would be located in five new seasonal residence buildings, each containing four two-bedroom units and four ground floor cabanas.

In addition to the review of the January 2004 Building Inspector's determination, the Village's Planning Board also requested that the Village's Planning Consultant and the Village's Counsel review the application to determine its compliance with the zoning requirements found in the MR District. The Planning Board heard back from the Planning Consultant and Counsel by Memorandum dated February 18, 2004, wherein they set forth their agreement with the Building Inspector's determination that the seasonal residences proposed fell within the meaning of seasonal residences which are a permitted accessory use pursuant to Zoning Code § 342-35(B)(6):

"[a] question was raised as to whether the seasonal residences were actually accessory to the principal permitted use of a club. Attached for your convenience is the definition of both an [*3]accessory use and an accessory building that is contained in the zoning code as well as the list of standards and controls for the Marine Recreation zone. As you can see from the attached, the definition of accessory use and accessory building is one that is seen as subordinate to and incidental to the primary use. However, the definition does not contain any limitation on square footage. The only instance in the Marine Recreation Zone where square footage of an accessory use is limited as a percentage of the primary use is with dining and kitchen facilities .... As a result, it was the opinion of both the Building Inspector and of Kevin Plunkett ... [the Village Attorney] that the proposed seasonal housing can be considered accessory uses to the principal permitted use of the clubhouse. Accordingly, the application is deemed appropriate as submitted in terms of its listing of permitted principal and accessory uses"(Memorandum dated 2/18/04 from Frank Fish to Planning Board at 1-2, Petition, Exhibit E).

Mr. Fish later confirmed his initial determination in a subsequent report provided to the Village in January 2005 (see Analysis of Seasonal Housing, Mamaroneck Marine Recreation District, prepared by Buckhurst Fish & Jacquemart, Inc., January 2005 ["Analysis of Seasonal Housing"], Petition, Exhibit K). In that report, it was stated

"[t]he Village's current zoning ordinance does not set any size standards for seasonal residential accessory uses in the Marine Recreation District. As stated in Section 4.0 of this report many codes do not explicitly regulate the size of accessory uses. Rather these are controlled by regulations which apply to the site in its entirety. In the case of the Village these regulations were set in the mid 1980s and are summarized in the table below. The maximum floor area ratio (FAR) was added by the Trustees in 1999. The 0.15 FAR^[FN5] is the lowest of any zone in the Village. Multiplying the FAR by the lot sizes yields the total gross square footage allowed for both principal and accessory uses" (id. at 16).

SAPOA appealed the Building Inspector's January 14, 2004 determination by filing a letter of appeal with the Building Department on or about March 12, 2004 (see Letter dated March 12, 2004 from SAPOA's counsel, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP to the ZBA, Certified Record, Exhibit 1). SAPOA's appeal is based on its argument "that the proposed construction of thirty one (31) additional residential units on the site far exceed[ed] the permitted residential use of the property under code section 342-35(B)(6) which contemplates minor residential uses as accessory to the principal permitted use as a Club ...." (id. at 1). Although SAPOA filed its appeal on March 12, 2004 with the Building Department, it did not file any paperwork directly with the ZBA and the Building Inspector did not forward the appeal to the ZBA.

Likewise nothing was done either internally within the Village of Mamaroneck nor externally [*4]by SAPOA to get the appeal before the ZBA,^[FN6] yet it nevertheless became evident to petitioners that as a result of the SAPOA appeal, the Village's Planning Board was not going to put the MBYC's site plan application on its agenda because the Village and SAPOA were taking the position that the SAPOA appeal stayed the ability of the Planning Board to review the site plan pursuant to Village Law §7-712-a(6).^[FN7] It was this position that precipitated the first Article 78 proceeding brought by petitioners on April 15, 2004, which sought an order of mandamus compelling the Planning Board to begin its site plan review and its review pursuant to New York State's Environmental Quality Review Act and NY Envir. Cons. Laws § 8-0101, et seq. ("SEQRA"). The Court granted the petition in its April 2004 Decision finding that the SAPOA appeal did not stay the Planning Board's obligations to review petitioners' site plan pursuant to Village Law §7-712-a(6). This Court further ordered the Planning Board to declare its intent to act as lead agency pursuant to SEQRA, conduct the appropriate environmental review and "proceed with site plan review of the Application ... and render a decision pursuant to Section 342-79 of the Village of Mamaroneck Zoning Code, as presently written without further delay" (April 2004 Decision at 8, Petition, Exhibit I). The Planning Board was further directed to hear the site plan application at its April 22, 2004 Planning Board meeting.

The Planning Board and SAPOA (as amicus) immediately appealed the Court's April 2004 Decision to the Appellate Division, Second Department. As a result of the appeal, CPLR 5519(a) automatically stayed the mandamus relief granted against the Planning Board during the appeal period, but had no effect on the ability of the ZBA to hear SAPOA's appeal.

Nevertheless, SAPOA's appeal lay dormant and was never even forwarded to the ZBA to be placed on the ZBA's agenda, even though the appeal was filed more than two weeks before the ZBA's April 1, 2004 meeting and over six weeks before the Village enacted its moratorium on development in the MR District. It further appears that SAPOA did nothing to compel the appeal to be heard by the ZBA throughout the relevant time period. Instead, SAPOA vigorously pursued the appeal of this Court's April 2004 Decision by filing an amicus brief. In that brief, SAPOA argued, inter alia, that "it is likely that the Zoning Board will find the Club's proposed plan does not constitute a permitted accessory use as established by this Court's recent decision in Mueller v Zoning Board of Appeals of the Town of Southhold .... Here, even though the catering and residential uses are supposed to be accessory to the primary club use, the Club proposes to add structures equaling 64,531 square feet, which is more than the existing structures combined and which will constitute seventy-seven (77%) of all the structure [sic] proposed on the site. Consequently, under this Court's ruling in Mueller, this would not constitute a use accessory' to the principal use of the [*5]Club" (Brief for the Amicus at 13, 15, Petition, Exhibit T).

By decision dated December 19, 2005 (the "December 2005 Decision"), the Appellate Division, Second Department affirmed this Court's April 2004 Decision that the automatic stay provisions of Village Law § 7-712-a(6) did not apply to the filing of an appeal to the ZBA by a third party and, therefore, the SAPOA appeal had no effect on the ability of the Planning Board to engage in its SEQRA and site plan review (December 2005 Decision at 2, Petition, Exhibit L). Furthermore, the Appellate Division expressly held that "[t]he remaining contentions of the appellants and SAPOA are without merit" (id. at 3).

As a result of the Appellate Division's December 2005 Decision, on December 28, 2005, petitioners wrote to the Planning Board demanding that the application be placed on the Planning Board's January 12, 2006 agenda. When the Planning Board refused to place the application on its agenda on the grounds that the moratorium that had originally been enacted in April 2004 for a period of 90 days, and which had been successively extended for over eighteen months, precluded its review of the application, MBYC brought a motion for contempt against the Planning Board. In the April 2006 Decision, this Court granted the motion to the extent that the Planning Board would be held in contempt if it failed to comply with the directives set forth in the Court's April 2004 Decision within 30 days from the date of the decision's issuance. This Court further held that the Court's original April 2004 Decision directing that the Planning Board immediately commence its site plan and SEQRA review and render a determination under the Zoning Code as it currently existed trumped any moratorium subsequently enacted.

The Planning Board complied with the Court's April 20, 2006 Decision and placed the application on its May 11, 2006 agenda. Prior to the May 11, 2006 meeting, the Planning Board asked its Planning Consultant, Frank Fish, to provide a recap and Mr. Fish again confirmed that the site plan was complete for purposes of review, including the determination (based on a meeting the Village Planning Consultant had with Village Counsel and the Building Department) that the proposed seasonal housing may be considered accessory uses (see Memorandum dated May 8, 2006 from Frank Fish, Tom Yardley [Buckhurst Fish & Jacquemart, Inc.] to the Planning Board at 1, Certified Record, Exhibit 9).

According to petitioners, the Planning Board's SEQRA and site plan review has proceeded in an orderly fashion and petitioners have expended approximately $100,000 in a Draft Environmental Impact Statement ("DEIS") required as a result of the SEQRA review. Respondents concede that the provisions of the Village's Zoning Code as they existed at the time of the Court's April 2004 Decision, control the Planning Board's review of petitioners' site plan application. During the public hearings held by the ZBA on the SAPOA appeal, SAPOA, however, has taken the position that the ZBA is free to apply the newly enacted amendments to the provisions of the Zoning Code (which were enacted in May 2006) relating to the MR District (i.e., the new provision for seasonal residences that limits the number of seasonal residences any membership club may construct to twelve).

The Re-Institution of the SAPOA Appeal

Within twenty days of the Court's April 2006 Decision, on May 10, 2006, SAPOA's President, respondent Leonard Aubrey, requested the ZBA "place on its agenda for June 2006 SAPOA's application, originally submitted on March 12, 2004, for review of a decision by the Director of Buildings that a site plan submitted by Mamaroneck Beach and Yacht Club complies [*6]with the accessory use provisions of the Village Zoning Code" (Certified Record, Exhibit 3 at 1). SAPOA explained that because of the moratorium that had been enacted by the Village, the ZBA

"had no reason to take action ... for the past two years. In a recent decision, however, Justice Lippman of the State Supreme Court has held that the moratorium does not apply to the application by Mamaroneck Beach and Yacht Club, and has ordered the Planning Board to proceed with site plan review. In light of the decision that the moratorium does not apply to the Mamaroneck Beach and Yacht application, the Board of Appeals is now free to consider and obligated to consider the application for review of the decision made by the Director of Buildings. Moreover, in light of the time pressure faced by the Planning Board, it is imperative that the Board of Appeals expeditiously review the decision by the Director of Buildings" (id.).

From the record of the proceedings before the ZBA, it is clear that from the date of its initial filing with the building inspector on March 12, 2004 to May 10, 2006 (the date SAPOA re-instituted its appeal), SAPOA's appeal remained in a holding pattern and neither SAPOA nor the Village did anything to pursue it.

The ZBA, acting on SAPOA's request that the appeal be restored, put SAPOA's appeal on its agenda for its June 1, 2006 meeting. Petitioners objected to the ZBA's hearing of the appeal on the grounds that the appeal was time barred pursuant to Village Law § 7-712-a and that there was no basis to "restore" it to the ZBA's agenda since it was never placed on the agenda in the first place (see Letter dated May 23, 2006 from Paul J. Noto, Esq. to ZBA, Certified Record, Exhibit 8). Petitioners further argued that any interference by the ZBA would violate the letter and spirit of the Court's April 2006 Decision directing the Planning Board to immediately commence its review or be held in contempt of this Court, as well as the other decisions issued by the Court and by the Appellate Division with regard to petitioners' application.

The ZBA disregarded petitioners' objections and held public hearings on June 1, 2006 and July 6, 2006. Although SAPOA argued that the ZBA should determine the appeal based on the newly enacted provisions of the Zoning Code, SAPOA alternatively argued that even under the provisions of the prior law, the seasonal residences proposed by petitioners were not an accessory use. Relying on another provision of the Zoning Code (outside of the provisions relating to the MR District) that defines an accessory use as a use customarily incidental and subordinate to the principal use of the property, SAPOA asserted that since residential structures (which would include petitioners' proposal for seasonal residences and the current residences provided on the site for the Club's staff) would occupy more than 62 percent of the structures on the property,^[FN8] the seasonal [*7]residences could not be considered incidental to the primary club use (Transcript of 6/1/06 Hearing at 5, 9, Certified Record, Exhibit 22). SAPOA also presented evidence of what other similar clubs had done with regard to providing seasonal residences for its members and guests to show that seasonal residences were not customarily found as accessory uses to a membership club.

In this regard, SAPOA presented evidence in the form of surveys done of other 22 Beach and Yacht Clubs in the immediate area and in Connecticut. Of those 22 clubs surveyed, only four had a small number of residences for members and guests that were dormitory style rooms without kitchen facilities. SAPOA also pointed out that in 1984, the Village of Mamaroneck's Beach Point Club had a few kitchenless residential units for members and guests and this fact should guide the ZBA in their determination over "what was intended by our existing ordinance in 1984" (Transcript of 6/1/06 Hearing at 13, Certified Record, Exhibit 22). SAPOA also relied on past history concerning MBYC's attempt to increase its dining facility to create a catering facility for non-members. That proposal was rejected by the ZBA as a non-accessory use, and that determination was upheld in an Article 78 proceeding before the Honorable James R. Cowey, J.S.C. (Matter of Mamaroneck Beach & Yacht Club v Vozza, et al., Index No. 18984/00, Hon. James R. Cowhey, J.S.C. [April 30, 2001], Certified Record, Exhibit 2).

In addition to arguing that the appeal should be time barred and that the ZBA's review of this appeal was violative of this Court's prior Decisions, petitioners refuted that the prior 2000 catering application to double the size of the Club's dining facility had any bearing on this appeal since the catering facility would be open to non-members of the club. As such, the ZBA determined "from the information provided by the Club that the proposed activity will not be a part of the recreational use by members, but one commonly conducted as a business in the form of a catering business for on-site catering" (id. at 5).

Petitioners also provided evidence of the legislative intent behind the Village's Local Waterfront Revitalization Program's proposal that the Zoning Code be amended to create this new MR District through their counsel, Paul Noto, Esq., who had been the Village's Mayor at the time of the enactment of the zoning regulations, regarding the MR District. During the hearings he explained that the very purpose behind the MR District was to ensure that the membership clubs, whose survival was deemed critical to the purpose behind the creation of the MR District, would not have to go to the ZBA every time they sought to make improvements to their clubs.^[FN9] [*8]

Petitioners further countered SAPOA's analysis concerning the percentage of the square footage of the seasonal residences as compared to the square footage of the other buildings on the property. Thus, in support of their position that the seasonal residences would indeed be incidental to the principal club use, petitioners' planning consultant pointed out that this analysis did not comport with the provisions found in the MR District which identify the principal permitted uses as "membership clubs, such as beach, golf, country, yacht and similar clubs." According to the Planning Consultant, because "that [d]efinition does not indicate in any way that the main club house of any club embodies its principal use, but implies rather that the overall use of the property is dedicated to targeted recreational membership purposes," it was improper to gauge the proportion of seasonal residence use as a percentage of the square footage of the Clubhouse (see Memorandum from Syrette Dym [Sacardi & Schiff, Inc.] to Planning Board dated January 27, 2005, Certified Record, Exhibit 16).^[FN10] Thus, it was petitioners' position that the percentage of the seasonal residences should be gauged against the entire facility (not merely its structures) since it was all the recreational uses of the facility that constituted the principal club use. If that analysis were adopted, then the seasonal residences constituted only 7.6% of the lot area (see Memorandum dated March 10, 2004 from Syrette Dymm [Saccardi & Schiff, Inc.] at 2, Certified Record, Exhibit 9). In addition, petitioners presented evidence that even if the ZBA chose to measure the seasonal residences only against the structures that would be found on petitioners' property (if and when the site plan were approved and construction was completed), the seasonal residences constituted approximately 49% of the total square footage of all the structures (i.e., that the square footage of the seasonal residences would be 41,367 and the square footage of all the structures that would be found on the property would be 83,906) (Memorandum from Syrette Dym [Sacardi & Schiff, Inc.] to Planning Board dated January 27, 2005, Certified Record, Exhibit 16).

The ZBA engaged in deliberations during their November 2, 2006 meeting. At the conclusion, the vote taken was: four in favor of reversing the Building Inspector's determination and one opposed. The resolution setting forth the ZBA's determination is set forth, in pertinent part, as follows:

"[a]ccording to Section 342-3 of the Zoning Code, an accessory use must be ....customarily incidental and subordinate to the principal use of the land or building located on the same lot with such principal use' ... [t]he ... proposal suggests that it would occupy either 53 percent of the total building square footage or up to 62 percent of the total building square footage, [*9]depending on whether square footage of staff residences and the manager's house is included ... A new proposed use that is in excess of 50 percent of total building square foot area does not meet the definition of incidental and subordinate ...There is ... a clear and distinct difference between the type of seasonal accommodations that are available in the four clubs that have rooms' and the proposed units as put forth by Mamaroneck Beach and Yacht Club. It is clear that the proposed seasonal residences' are anything but dormitory-type rooms. As proposed, they meet every definition of a dwelling unit' ... [and are] not the sort of seasonal residence contemplated for the MR zone ... Based on the specific findings as described herein, this Board finds that the Building Inspector did err in his determination ... and ... [the] seasonal residences within the meaning of the Zoning Code are limited to a small number of accommodations found in a few other clubs within the area. The far more extensive residences proposed by Mamaroneck Beach and Yacht Club, both in terms of number of units and in the size and amenities proposed for those units, do not qualify as accessory uses within the MR zone because they are not customarily incidental and subordinate to the principal use in the MR zone ... and, therefore, are not seasonal housing" (Certified Record, Exhibit 20).

In this Article 78 proceeding, petitioners seek this Court's annulment of the ZBA's November 2, 2006 Decision on the grounds, inter alia, that the ZBA should not have heard the appeal based on the untimeliness of the appeal pursuant to the Village Law and laches, that the issue raised by SAPOA is barred by the doctrines of res judicata and collateral estoppel, that it is contrary to the spirit and intent of prior rulings of this Court (i.e., that it is contemptuous of the Court's April 2004 and April 2006 Decisions and the December 2005 Appellate Division Decision), and that on its merits the ZBA's determination was arbitrary, capricious and unlawful insofar as it failed to properly interpret the clear language of seasonal residences as accessory uses as set forth in the Zoning Code § 342-35.^[FN11]

The ZBA and respondents oppose the petition and assert, inter alia, that the SAPOA appeal is timely under the relevant Village Law provisions, that the ZBA's determination was rational and supported by substantial evidence because petitioners' proposed seasonal residences were "not zoning compliant in that ...[they] did not constitute an appropriate accessory use [i.e., one customarily and incidentally subordinate to principal use] in a Marine Recreation District" (ZBA's [*10]Memorandum of Law at 1). Finally, the ZBA and SAPOA argue that this Court should follow a 2001 decision rendered by Judge Cowhey, affirming the ZBA's determination that petitioners' proposed expansion of its catering facilities did not fit within the meaning of accessory use in the MR District since the use by nonmembers of its catering facilities was not incidental to the club member's primary use of the Club as a recreational facility.

On the present record, SAPOA was content to sit back and rest on the Village's enactment of successive moratoria with the expectation that the Village would enact an amendment to Zoning Code § 342-35 that would either prohibit seasonal residences altogether or severely limit them to a few dormitory style rooms. Thus, it was not until this Court rendered its April 2006 Decision, which made clear that no matter what new law was enacted the provision governing petitioners' proposal for seasonal residences would be the ordinance in effect at the time the Court rendered its April 2004 Decision, that SAPOA decided to restore its over two-year old appeal to the ZBA.

Indeed, SAPOA was direct in describing the purpose driving its belated appeal i.e., its desire to have the ZBA trump the Planning Board's review by finding that the seasonal residences proposed were not in compliance with the "meaning" of seasonal residences (a term left undefined in the Zoning Code), because SAPOA believes petitioners' seasonal residences cannot be deemed "customarily incidental and subordinate" to the primary use of this property (see, e.g., Transcript of 6/1/06 Hearing at 18-19, Certified Record, Exhibit 2; Letter dated 9/12/06 from Leonard Aubrey to the ZBA, Certified Record, Exhibit 17).

SAPOA's Appeal Must Be Barred as Untimely

The threshold question presented is whether the ZBA improperly heard an appeal that was time barred pursuant to the provisions of Village Law § 7-712-a(5)(b) and § 7-712-a(7), which require appeals to be filed within sixty days and thereafter heard and determined in a reasonable time. Pointing to the vast procedural history of the dispute over petitioners' site plan application, petitioners contend that the Village and SAPOA permitted the appeal to languish for more than two years to petitioners' substantial detriment while the other litigation proceeded. As such, petitioners assert that it was improper and inequitable for the ZBA to hear an appeal that was not pursued by the Village or SAPOA for over two years.

The ZBA and SAPOA assert that Village Law § 7-712-a(5) only requires that the applicant seeking the appeal file it with the administrative official and the ZBA within 60 days of the determination, which was done in this case. Respondents argue that the statute then places the burden on the administrative official to forward the papers and record to the ZBA and that "[t]he delay in transmitting the record to ... [the] ZBA can not be attributed to the applicant ... It certainly does not indicate that the applicant failed in any way to comply with its statutory duties or abandoned the appeal" (ZBA Memorandum of Law at 25).

The timeliness of SAPOA's appeal to the ZBA is controlled by the provisions of Village Law § 7-712-a(5)(b) which require that the applicant file the appeal within 60 days of the administrative official's decision and that the administrative official transmit to the ZBA the papers constituting the record on appeal. Furthermore, pursuant to the provisions of Village Law § 7-712-a(7), the ZBA is required to hear the appeal within a reasonable time. [*11]

During the public hearing held on June 1, 2006, Ms. Hoffstetter, the President of SAPOA at the time of SAPOA's filing of the appeal in March 2004, explained that it was she who delivered the appeal to the Building Department:

"and then that was it. I never heard another thing until about I don't know if was a month ago, I got a call from someone who was new in the Building Department and she found a stack of papers and a check that had never been cashed for this you know, this legal process. And she said, What should I do? I said, I don't know what you're talking about. Hold on to it. I'll come down and take a look. I came down, and that's what this was. And I said, I guess you should hold on to it, and then within a week or two this has developed. So, it was laying in the in you know, the offices, because it was never sent to the Zoning Board. But my understanding was there had been some discussion and a decision was made not to send it to the Zoning Board" (Transcript of 6/1/06 Hearing at 90-91, Certified Record, Exhibit 22).

Given the foregoing and the procedural posture of this proceeding, the Court finds that the Village's and SAPOA's failure to pursue the SAPOA appeal was based on their belief that the appeal would be rendered moot by the Village's enactment of a moratorium and subsequent enactment of an amendment to the zoning regulations regarding the MR District that would prohibit the type or seasonal residences proposed by petitioners. This was not a situation where there was simply a missing appeal that just happened to reappear shortly after this Court's April 2006 Decision. Although SAPOA arguably satisfied the 60 day time limit for the filing of the appeal, its counsel (as agent of SAPOA) apparently conferred with Village Counsel and they determined there was no need to pursue the SAPOA appeal. Thus, SAPOA was willing to allow other processes to run their course which the Village and SAPOA believed would have the effect of mooting the issue surrounding SAPOA's ZBA appeal. Accordingly, the Village's failure to comply with Village Code § 7-712-a(5)(b) and § 7-712-a(7) should be held against SAPOA as well.

It is well settled that the failure to comply with procedural requirements requires that the ZBA decision be annulled (Matter of Cipperly v Town of East Greenbush, 213 AD2d 933 [1995]; Matter of Blum v Board of Zoning Appeals of Town of North Hempstead, 1 Misc 2d 668 [1956]). Pursuant to Village Law § 7-712-a(7), the board of appeals is obligated to "fix a reasonable time for the hearing of the appeal referred to it." The Court finds that an unjustified delay in excess of two years prior to the hearing is unreasonable (Matter of Spandorf v Building Inspector of Inc. Village of East Hills, 193 AD2d 682 [1993]; Maroney v Friere, 74 Misc 2d 339 [1973]), and the decision must be annulled simply on the basis of this unreasonable delay.

Furthermore, even if the application were technically compliant with Village Code § 7-712-a(5)(b) and § 7-712-a(7), the Court further finds that the Village's and SAPOA's failure for over two years to pursue the appeal means that the appeal is barred on the basis of laches, particularly given the procedural history of the dispute over petitioners' application for seasonal housing (including all [*12]of this Court's previous findings of fact in the numerous related proceedings) (see Marlowe v Elwood, Inc., 34 AD3d 970 [2006]; Matter of Jamil v Village of Scarsdale Bd. of Appeals, NYLJ, Oct. 9, 2003, at 20, col 3). The law is well settled that "[d]elay in instituting legal proceedings to enforce what one perceives to be a recognized right, particularly in the area of zoning and its allied concerns such as planning ... can result in denial because of laches" (Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 86 AD2d 246, 248 [1982]; New York Botanical Gardens v Board of Standards and Appeals of City of New York, 91 NY2d 413 [1998]).

Further, on the merits of the ZBA's November 2, 2006 Decision, the site plan and SEQRA review by the Village's Planning Board may proceed given, as set forth below, there is no issue as to the zoning compliance of seasonal residences as proposed by petitioners.

The Clear Language of Zoning Code § 342-35 Establishes That the ZBA's

Determination Was Arbitrary and Capricious

Turning to the merits of the ZBA's decision, the Court initially notes that the ZBA's decision neglects to quote or even analyze the provision of the Zoning Code (§ 342-35) that should have controlled the ZBA's "interpretation" of whether the seasonal residences proposed were a permitted accessory use. This occurred despite the fact that SAPOA's appeal specifically framed the issue on appeal as whether the Building Inspector was correct in his determination that petitioners' proposed seasonal residences were a permitted accessory use pursuant to Zoning Code § 342-35 (see Certified Record, Exhibit 1).

Section 342-35 of the Village's Zoning Code provides, in pertinent part, the following permitted principal and accessory uses for the clubs located in the MR District:

"A.Permitted principal uses. The following are the only principal uses permitted in MR Marine Recreation Districts:

(1) Membership clubs, such as beach, golf country, yacht and similar clubs.

B.Permitted accessory uses. The following accessory uses are permitted in MR Marine Recreation Districts only in conjunction with a permitted principal use:

***

(6) Residences for caretakers and staff and seasonal residences for club members and guests.

There are several well settled principles that govern this Court's review of the ZBA's determination. First, "[a] zoning board's interpretation of a zoning code is not entitled to unquestioning judicial deference, since the ultimate responsibility of interpreting the law is with the court' ... Thus, where ... the interpretation of a zoning code is irrational or unreasonable, a zoning board's determination will be annulled" (Matter of Tartan Oil Corp. v Bohrer, 249 AD2d 481, 482 [1998], quoting Matter of Exxon Corp v Board of Standards and Appeals of City of New York, 128 AD2d 289, 296 [1987] ["the Board's interpretation of what constitutes an accessory use is not [*13]entitled to unquestioning judicial deference, since the ultimate responsibility of interpreting the law is with the court"]. "[W]here the question is one of pure legal interpretation of statutory terms, deference to the ... [administrative agency] is not required'" (Matter of New York Botanical Garden v Board of Standards and Appeals of the City of New York, 91 NY2d 413, 419 [1998], quoting Matter of Toys "R" Us v Silva, 89 NY2d 411, 419 [1996]).

Second, " [w]here [a] statute is clear and unambiguous on its face, the legislation must be interpreted as it exists. Absent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute' .... It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature, and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used'"(Matter of Orchard Glen Residences and Carriage Houses, LLC v Erie County Industrial Dev. Agency, 303 AD2d 49, 51 [2003], lv denied 305 AD2d 1127 [2003], lv denied 100 NY2d 511 [2003]; quoting Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669 [1988]; see also Matter of Toys "R" Us, 89 NY2d at 420). As pronounced by the New York Court of Appeals, when an administrative agency's "interpretation conflicts with the plain statutory language ... [it] may not be sustained" (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 102 [1997]).

A fair reading of the subject ordinance leads to the inescapable conclusion that the Village determined that the accessory uses delineated in Zoning Code § 342-35 for the MR District would be deemed accessory uses per se, regardless of their proportional size in relation to the sizes of other uses found on the property. Thus, because these permitted accessory uses were not limited to a certain number or square footage, petitioners' proposed seasonal residences, which will constitute approximately 49% of the square footage of all the buildings found on the property, are zoning compliant as a permitted accessory use of seasonal residences as provided for in Zoning Code § 342-35(B)(6).

Indeed, the ZBA's counsel himself recognized the difficulty in the ZBA's "interpretation" since it was obviously being based on the ZBA members' interpretation of what seasonal residences mean, even though seasonal residences are nowhere defined in the Zoning Code:

"CHAIRMAN GABRIELE: ... Now, I think that we really have to acknowledge the fact that seasonal housing is a permitted use within the Marine Recreational Zone.

MR.MESSINA: Mr. Gabriele, if you're going to acknowledge that, then the only way you can approve the application of SAPOA is to say that what's being proposed doesn't constitute seasonal housing.

MR. MGRDITCHIAN: That's right.

MR. MESSINA: If you're going to say seasonal housing is permitted, then this can't be seasonal housing, because if it was it would be permitted.

***

You have to say that this isn't seasonal housing ... You can't say there's permitted seasonal housing and non-permitted seasonal housing.

CHAIRMAN GABRIELE: This this particular application does not does not represent a development which would be consistent with the definition of seasonal housing.

MR. MESSINA: Then it's not seasonal housing.

*** [*14]

MR. MGRDITCHIAN: Mr. Messina, the application doesn't represent so-called seasonal housing as described. Well, who's to describe what seasonal housing is? Well, are we determining what is seasonal housing? Do we actually know? Is it something you stay overnight as a motel? I mean, you know, what is seasonal housing? So

***

MR. MESSINA: There's a determination that it was a permitted accessory use, and you look in the permitted accessory use it's seasonal housing that is a permitted accessory use. There's no other housing that's a permitted accessory use" (Transcript of 11/2/06 Hearing at 38-42).

The ZBA went outside the plain terms of Zoning Code § 342-35 as to seasonal residences as an accessory use. It is well settled that if the Village had intended to limit the number, size or amenities of seasonal residences in the MR District, it should have provided for such restrictions in the Zoning Code (see Matter of New York Botanical Garden, 91 NY2d at 422 [zoning ordinance which specifically listed "radio or television towers" as examples of permissible accessory uses could not be limited with a height restriction where no such restriction was present in the ordinance]; Matter of Allen v Adami, 39 NY2d 275, 277 [1976] ["[h]ad the Village intended to impose such a condition on the exception, it could easily have done so ...."]; Matter of Exxon Corp., 128 AD2d at 293 [same]).^[FN12]

Instead, as noted by the Village's Planning Consultant, the Village decided that 0.15 FAR ("Floor Area Ratio") regulating the MR District would ensure that the development at these beach and yacht clubs remained at a level acceptable to the community (Analysis of Seasonal Housing at 16, Petition, Exhibit K).

Even if The Court Were to Find the Provisions of the Zoning Code Ambiguous and Subject to Interpretation, The ZBA's Interpretation Was Improper and Irrational

In its interpretation of Zoning Code §342-35, it was the ZBA's position that all of the accessory uses listed in § 342-35 as permitted accessory uses in the MR District (including cabanas, tennis courts, beaches, etc.) were subject to the further qualification found in another section of the Zoning Code (outside of the MR District regulations) regarding the definition of accessory uses which require that such uses be "customarily incidental and subordinate to" the principal use of the land. Therefore, because in the minds of four of the five ZBA members, petitioners' 31 snow bird residences did not fit within their definition seasonal residences, petitioners' proposal was not zoning compliant. The ZBA's interpretation, however, failed to follow the cardinal rule of interpretation of zoning statutes, namely that "[s]ince zoning regulations are in derogation of the common law, they [*15]must be strictly construed against the municipality which has enacted and seeks to enforce them ... Any ambiguity in the language used in such regulations must be resolved in favor of the property owner" (Matter of Allen v Adami, 39 NY2d 275, 277 [1976]; see also Matter of Exxon Corp., 128 AD2d at 293; Matter of Tartan Oil Corp., 249 AD2d at 482).

To begin with, in its comparison of the square footage of the seasonal residences, the ZBA improperly limited the comparison to the structures on the property. As noted by the Village's Planning Consultant, the square footage of the cabanas, which are also a permitted accessory use found in Zoning Code § 342-35, constitute 100% of square footage of the Clubhouse facility (Analysis of Seasonal Housing at 5, Petition, Exhibit K), yet no one contends that given the size of the cabanas they cannot be deemed incidental to the principal Club use. Indeed, given that many of the other accessory uses found in § 342-35 would also exceed the square footage of structures found on the property, the more appropriate analysis would have been to compare the seasonal residences to the entire facility. Because the seasonal residences constituted less than 8% of the lot area, they should have been deemed incidental to the primary club recreational, athletic and social use.

Pursuant to Zoning Code § 342-35, the permitted principal use in the MR District is membership clubs, such as beach, golf, country, yacht and similar clubs. Zoning Code § 342-3 defines "Club" as "[a]n annual membership organization, including beach, golf, tennis, yacht and similar recreation facility, not to be used for an activity commonly conducted as a business, and not including indoor tennis clubs, with its facilities catering exclusively to members and/or their guests for recreational, athletic or social purposes and where there are not conducted any vending stands or merchandising or commercial activities, except as required generally for the membership and purposes of such club." Nowhere in the definition of Club is the principal use of a membership club limited to the structures found on the property. Yet the ZBA's and SAPOA's argument that the seasonal residences cannot be deemed incidental to the principal use is based entirely on its misconception that the structures found on the property are the principal use against which the seasonal residences should be gauged. This circumspect view of the principal use of the Club is not supported in the Zoning Code's definition of membership club, which involves all of the recreation, athletic and social services usually offered by clubs.

Moreover, even if the proper yardstick for incidental use were the total square footage of structures found on the property, petitioners provided evidence that the square footage of the seasonal residences would constitute, at most, 49% of the square footage of all the structures on the property. As such, it fell below the 50% figure set forth by the ZBA in its decision as the maximum percentage of an accessory use that should qualify as incidental.

Respondents' reliance on the decision rendered by the ZBA and affirmed by Judge Cowhey in an Article 78 proceeding is readily distinguishable since in that case, petitioners were admitting that the catering facility would be open to nonmembers' use. As a result of that admission, and the fact that the definition of a Club in the Zoning Code was limited to catering exclusively to members and their guests, the ZBA was justified in finding that the proposed catering use was not a permitted accessory use under Zoning Code § 342-35. By contrast, here, the seasonal residences would only be rented to Club members or their guests and, therefore, the seasonal residences are accessory to the principal use of the membership club. Accordingly, Judge Cowhey's decision has no precedential value for purposes of deciding the instant proceeding.

The Court further finds that the ZBA's determination that the seasonal residences proposed [*16]were more like dwelling units as opposed to seasonal residences was based on its circumspect survey of comparable clubs. Thus, by narrowing its comparison to beach and yacht clubs in the general vicinity, where the seasonal residences consist of several small dormitory style rooms, the ZBA failed to take into account the types of seasonal residences offered at other types of membership clubs, such as golf clubs in the Westchester area, whose square footage compares to the square footage of seasonal residences proposed by petitioners herein.^[FN13]

Motion to Dismiss by Respondents Leonard Aubrey, Roslyn Wood,

Stewart Sterk, Beth Hofstetter and Dan Natchez (the "Individual Respondents")

The individual respondents seek to dismiss the proceedings on the grounds that they are improperly joined as respondents. Although the Court agrees that to the extent this Article 78 only sought the annulment of the ZBA's decision as arbitrary and capricious, the individual respondents would not need to be joined to obtain complete relief. However, in this Article 78, petitioners also sought a stay against any further actions by the individual respondents and/or SAPOA to thwart the Planning Board's processing and review of petitioners' site plan application pending this Court's determination of this Article 78 proceeding, and to annul the ZBA's decision on the ground that SAPOA's appeal was untimely (either pursuant to the Village Law or because of laches), it appears that the individual respondents were properly joined in this proceeding as either the current^[FN14] or former officers and directors of SAPOA, the entity that appealed the Building Inspector's January 12, 2004 determination to the ZBA (see CPLR 1002). Furthermore, SAPOA (through its past and present officers and directors) have sought and were granted the right to intervene in at least two of the prior Article 78 proceedings before this Court regarding this same dispute, and, indeed SAPOA was granted the right to participate as amicus in the appeal of this Court's April 2004 Decision to the Appellate Division, Second Department.

Although the Court agrees with the individual respondents' argument that there is no basis to hold them liable for damages since they were engaging in their constitutionally protected right to petition their government, that does not negate that there was relief requested in the petition that was directed against the individual respondents to which they needed to respond, and they were properly made respondents to this proceeding. [*17]

Based on the foregoing, it is hereby

ORDERED, that the ZBA's November 2, 2006 decision reversing the Building Inspector's determination that petitioners' seasonal residences were a permitted accessory use is annulled for the reasons set forth more fully herein.

The foregoing constitutes the Decision, Order and Judgment of the Court.

Dated: White Plains, New York

January 24, 2007__________________________________

HON. JONATHAN LIPPMAN, J.S.C.

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