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Coco v. City of Rochester Zoning Board of Appeals
Citations: 236 A.D.2d 826; 653 N.Y.S.2d 769; 1997 N.Y. App. Div. LEXIS 1758
Court: Appellate Division of the Supreme Court of the State of New York; February 6, 1997; New York; State Appellate Court
Judgment was unanimously reversed, and the petition was dismissed without costs. Malero Corporation operates the Highland Park Diner, a notable "Art Moderne" style diner in Rochester, NY, built in the 1940s and eligible for landmark status. In 1986, Malero installed two exhaust fans that were later deemed in violation of the State Uniform Fire Prevention and Building Code due to their proximity to property lines. Various alternatives for compliance were explored, but Malero opted for a less costly solution: constructing a 10-foot high opaque metal fence adjacent to an existing chain link fence rather than relocating the fans. This fencing plan required variances from two agencies: a waiver from a regional board of review and an area variance from the City of Rochester Zoning Board of Appeals (ZBA). The ZBA conditionally approved the area variance, requiring Malero to secure a certificate of zoning compliance, a building permit, and a certificate of occupancy before proceeding. A petition was filed to annul the ZBA's decision, which the Supreme Court granted, claiming the ZBA improperly exercised discretion and that its findings lacked substantial evidence. The appellate court reversed this decision, stating the ZBA appropriately conducted a balancing test as mandated by General City Law, weighing the applicant's benefits against potential community detriments. The ZBA’s determination that the proposed fence's benefits outweighed any negative impacts was supported by substantial evidence. The Supreme Court's reasoning was criticized for misunderstanding the ZBA's decision-making process and for suggesting that the ZBA had ignored substantial evidence, such as concerns regarding the fence's ineffectiveness in addressing the Uniform Code violation. The ZBA clarified that the fence would only be built if the regional board granted a variance to keep the fans in place. Malero's entitlement to a waiver or variance from the Uniform Code's requirements must be evaluated by the regional board of review in accordance with 19 NYCRR 450.4. The court's assertion that the proposed variance "does not appear to be a reasonable solution" constitutes an improper substitution of its judgment for that of the Zoning Board of Appeals (ZBA). When assessing a ZBA's decision, the reviewing court's role is limited to verifying whether substantial evidence exists to support the Board's rationale. The ZBA acknowledged the need for a reservoir to prevent grease from dripping off a metal fence, and there is no evidence that such a device would be ineffective. Additionally, the record does not indicate that the ZBA ignored complaints from neighbors regarding smoke and odor; rather, the ZBA concluded that the proposed fence would contain grease and fumes within the subject property. The appeal originates from a judgment in the Supreme Court, Monroe County, under CPLR article 78.