Atlantic Ready Mix, Inc. v. Macedo

We agree with the Supreme Court that the determination of the respondent Zoning Board of Appeals of the Incorporated Village of Mineola (hereinafter the ZBA) denying so much of the application as sought a use variance was rational and not arbitrary and capricious, as the petitioners failed to establish a basis for the granting of such a variance (see Matter of Ifrah v Utschig, 98 NY2d 304 [2002]). The ZBA also properly denied, as academic, so much of the application as sought an area variance.

The petitioners’ contentions that they had been using the subject property lawfully before the enactment of the applicable zoning law, and that the ZBA acted coercively in requiring them to apply for a use variance (see Matter of Torres v New York City Hous. Auth., 40 AD3d 328, 330 [2007]; Matter of Grogan v Zoning Bd. of Appeals of Town of E. Hampton, 221 AD2d 441, 442 [1995]; Matter of Clowry v Town of Pawling, 202 AD2d 663, 665 [1994]; Matter of Berbenich v Schoenfeld, 149 AD2d 505, 508 [1989]) are improperly asserted for the first time on appeal. Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.