1 REGULAR MEETING
ZONING BOARD OF APPEALS
Nyack Village Hall April 25, 2011
Nyack, New York
Present: Catherine Friesen, Chair
In Memoriam:
John Dunnigan Raymond O’Connell
Robert Knoebel, Sr.
Mary Ann Armano
Ellyse Berg
Roger Cohen (alternate)
The following resolution was offered by Member Armano, seconded by Member Dunnigan, and carried based upon a review of the evidence presented at the public hearing held on April 25, 2011.
BOARD OF APPEALS
VILLAGE OF NYACK, COUNTY OF ROCKLAND
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In the Matter of the application of David Money Centers
and 294 Main Street Associates LLC,
(294 Main Street) for an interpretation of the Code of the
Village of Nyack pursuant to VON Code 360-5.19
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Pursuant to VON Code Section 360-5.19 (Interpretations and Appeals) the Applicant appeals the Chief Building Inspector’s interpretation of Section 360-3.1C, Table 3.1 that a use variance is required to install an ATM on a building exterior in the DMU zoning district.
The Zoning Board of Appeals held a public meeting on the 25th day of April, 2011, and due deliberations having been made;
Now, upon said hearing and upon the evidence adduced thereat, it is hereby found and determined that:
FINDINGS OF FACT & CONCLUSIONS OF LAW
First: That the applicant, David Money Centers and 294 Main Street Associates LLC, has 2
appeared before the Zoning Board of Appeals seeking reversal or modification of the Chief Building Inspector’s determination that, pursuant to Section 360-3.1C, Table 3.1, a use variance is required to install an ATM on a building exterior in the DMU zoning district.
Second: The ZBA, in reaching its Findings of Fact and Conclusions of Law has taken the following factual testimony and evidence under consideration:
1. The application and supporting documents submitted;
2. Testimony Ira Krell and Bart Rodi in support of the application.
3. ZBA members knowledge of the site in question; and
4. Site visits by all member of the ZBA.
Third: The site in question is located in the DMU zoning district. The owner of the property, 294 Main Street Associates LLC, purchased the property in 2010 pursuant to the local zoning regulations. David Money Centers is the lessee of the property and currently operates a check cashing facility at 2 South Highland Avenue, Nyack, New York. The applicant intends to move its check cashing business to the premises at 294 Main Street.
Fourth: The applicant proposes to install a private automated teller machine (ATM) on the exterior of the building. No exterior ATM currently exists at the site, nor has ever existed at the site. The applicant already operates an internal ATM at its 2 South Highland premises, but wishes to install an external ATM that could be used 24 hours a day, seven days a week to include when the check cashing facility is closed.
Fifth: The applicant argues that the installation of the external ATM is part of its business of “banking” and is not accessory to its principal use.
Sixth: The applicant is not considered a “banking institution” for purposes of the “ATM Safety Act” (Banking Law, Article II-A) enacted in 1996 to provide security and safety for consumers. The applicant provided extensive oral testimony regarding certain banking functions it performs, including check cashing, money transfers, ATM withdrawals, selling of debit cards, bill paying, as well as accepting electronic funds transfers and partnering with a bank in Illinois.
Seventh: The applicant appeared before the Planning Board on April 4, 2011, in connection with its application to install an ATM machine on the building exterior and to request a recommendation to the Zoning Board of Appeals if a use variance were required. According to the minutes of the Planning Board meeting, both the applicant and the Planning Board expressed concerns about the safety of the site with respect to the installation of an exterior ATM, and discussed the difficulty of obtaining a use variance. As noted, the applicant has appealed the Building Inspector’s determination that a use variance was required. No application for a use variance is presently before the Zoning Board of Appeals, nor did the Planning Board make any recommendation to the Zoning Board of Appeals whether a use variance should be granted if the Zoning Board of Appeals upheld the Building Inspector’s determination that one was required. 3
Eighth Exterior ATMs are not listed as a permitted accessory use in the DMU district pursuant to Table 3.1, and Section 360-3.1(C) of the VON Code states in pertinent part that, “any uses not specifically permitted shall be deemed prohibited”.
Ninth: Per Section 360-6.1 of the VON Code (“Definitions”), the term “use” “refers to any purpose for which buildings or other structures may be occupied”. While the term “accessory use” is not defined in the current code in the “Definitions” section, Section 360-3.2(E)(6), which establishes the standards for the accessory use of “outdoor dining”, describes an accessory use as one that is “incidental to and in conjunction with an established permitted [use]”.
Findings of Fact moved and passed 5-0.
CONCLUSIONS OF LAW
As to the applicant’s contention that VON Code 360-3.1(C) does not prohibit the installation of the proposed external ATM, the Zoning Board of Appeals reaches the following Conclusions of Law:
Our analysis begins with a restatement of settled principles regarding statutory construction. “Statutory interpretation begins with the statute’s literal language, which if unambiguous, limits the court’s interpretation to giving that language “its natural and obvious sense.” N.Y. Statutes § 94. (citations omitted) If the statute contains various parts, the court must presume the legislature “intended that each part have a distinct meaning.” Staruch v. New York Tel. Co., 277 A.D.2d 830, 832, 716 N.Y.S.2d 783 (3d Dep’t 2000). The court also must strive to harmonize the whole, giving “every part and word” of the statute a meaning and effect, N.Y. Statutes § 98(a); Hartnett v. New York City Tr. Auth., 200 A.D.2d 20, 25, 612 N.Y.S.2d 609 (2d Dep’t 1994), consistent with the statute’s overall intent. N.Y. Statutes § 92.” Commissioners of State Ins. Fund v. Brooklyn Barber Beauty Equipment Co., 740 N.Y.S.2d 180, N.Y.City Civ. Ct., 2001.
“Initially, as in all cases requiring statutory construction, we begin with an examination of the statute’s plain meaning“(citations omitted) ” Statutes should not be construed so as to negate their own stated purpose * * * ” (Lumpkin v. Department of Social Servs. of State of N.Y., 59 A.D.2d 485, 490, 400 N.Y.S.2d 220, affd. 45 N.Y.2d 351, 408 N.Y.S.2d 421, 380 N.E.2d 249, appeal dismissed 439 U.S. 1040, 99 S.Ct. 713, 58 L.Ed.2d 700 [citations omitted]).
First: It is black-letter law that statutory interpretation by a judicial body requires the evaluation of the statute using the plain-language meaning of the words comprising the statute. (5-0)
Second: The proposed ATM sought to be installed by the applicant reasonably falls within 4
the definition of an “accessory use” as contained in Section 360-3.1(C). (3-2, Knoebel and Berg dissenting)
THEREFORE, the Zoning Board of Appeals having taken testimony and evidence at a public hearing held on April 25, 2011 has weighed the evidence submitted and the factors contained in the VON Code provisions set forth above, and found that, on balance the interests of justice would be promoted by AFFIRMING the decision of the Chief Building Inspector.
On roll call, the vote was as follows:
Ayes: 3 (Friesen, Armano, Dunnigan)
Nays: 2 (Knoebel, Berg)
Abstain: 0