One of the charms of Rye, that distinguish it from many newer communities, is what zoning boards refer to as a “non-conforming use”.  In practice, that means that our older, residential neighborhoods — many dating from before our adoption of a zoning code in 1945 — include small businesses. Their presence makes it possible to walk to the corner for pizza or ice cream or for a sit-down dinner in a restaurant. Before everything was available online, they made it possible for us to head out for a newspaper, when a snowstorm halted home delivery.

But there’s a reason such uses are called non-conforming: they don’t fit into their surroundings. They might not be permitted if they weren’t already there. In Rye, many such businesses are grandfathered, and allowed to continue because they predate proscription.

It’s an arcane and technical part of zoning law, for the most part, but it could lead to Ocean Blue Prime, a local dining establishment, having to close or at least make major operational adjustments because of strong objections on the part of neighbors. Two attorney neighbors, David Cutner and Thomas Tobin, on behalf of 20 others living near the restaurant on Milton Road, which for decades was home to the fine French restaurant, La Panetière, have filed an Article 78 challenging a Zoning Board of Appeals ruling to let it continue in business. Their key legal argument rests on the question of whether the restaurant was closed too long during a period of renovations such that the owners must forfeit their non-conforming use right. The neighbors’ other complaints involve the addition of “football stadium floodlights”, and increased noise from huge outdoor speakers and a dining, drinking, and entertainment deck wrapping around nearly the entire second floor, as well as a cigar bar.  

Says Cutner: “Unlike La Panetière, its quiet, respectful predecessor, Ocean Blue Prime seems to have little appreciation for the fact that private homes are located as close as 22 feet from the restaurant.” He added, “A noisy, late-night restaurant, bar, and cigar bar has its place, but that place is not in the center of a residential neighborhood.”

Cutner and Tobin have petitioned Westchester County Supreme Court to throw out the Zoning Board decision to let Ocean Blue operate, arguing that the restaurant lost the right to continue operation under the City’s lapse statute. They note that Ocean Blue opened not six months, but roughly a year after La Panetière closed (October 2021). Absent being “grandfathered”, they argue that a “full-service restaurant” in a B1 Neighborhood Business District, must be at least 150 feet from a residential area. Failure to serve a meal within six months, they effectively argue, means that other factors — such as proximity to neighboring homes — should have become decisive, and that the Zoning Board should have said no to Ocean Blue. 

Attorneys for the City are having none of this. In an August 3 brief, they state that the neighbors’ argument is a “myopic and constrained analysis of the City’s Zoning Code undertaken to prohibit the continuation of a permitted use as a restaurant which had been in existence for many decades prior to this legal challenge.” They point to another section of the Rye Zoning Code, that “a building that is conforming in use but does not conform to the height, yard, or land coverage requirements shall not be considered to be non-conforming.” If a restaurant is allowed, that’s what counts, in other words. More broadly, zoning boards, per the City, should not be put in a legal straitjacket, but need discretion. 

“Residents need to be able to rely on the City’s enforcement of its laws as written,” stated Cutner. “The City’s officials and its ZBA do not have the discretion to decide that a law means just what they choose it to mean.”

It will be up to Westchester County Judge Susan Cacace to sort out the legalities in all this.