Rye neighbors claim nearby restaurant has no usage rights

The City of Rye and the new owner of the former La Panetière restaurant property have been sued for allegedly ignoring zoning laws.

Neighbors David A. Cutner and Thomas W. Tobin petitioned Westchester Supreme Court on May 22 to overturn a zoning decision and to rescind a certificate of occupancy for the new Ocean Blue Prime steak and seafood restaurant on Milton Road.

Unlike most cases where the zoning board has discretion to balance the interests of property owners and the community, the petition states, this is a “rare one that involves strictly legal issues where the zoning board of appeals has no claim to special expertise.”

La Panetière closed in October 2021 after 36 years of bringing the delights of Provençal cuisine to Westchester.

The following December, 530 Milton Road LLC, managed by Andrew Tonaj and Monica Iken, bought the property for $2.3 million.

Their Ocean Blue Prime is in a business district created by zoning regulations adopted in 1945, according to the petition. But the property at 530 Milton Road does not comply with the law because it is too close to homes and has no frontage on an arterial highway or county road.

Previous restaurants were grandfathered as a pre-existing, nonconforming uses. As long as they continued to operate, they were protected. But if a restaurant ceased to operate for at least six months, according to the petition, the property was no longer grandfathered.

The new owners applied for a building permit on June 6, 2022 — more than seven months after La Panetière  closed — to replace a bar on the first floor and install a bar on the second floor.

On Nov. 4 — more than a year after La Panetière  closed — the Rye building department issued a certificate of occupancy that allowed continued use of the building as a restaurant.

Cutner, who lives on Oakland Beach Avenue, and Tobin, who lives on Milton Road, objected to the occupancy permit, arguing that the property’s pre-existing nonconforming status had lapsed.

The city ignored their objection, according to the petition, and the men appealed to the zoning board. On April 23, the zoning board ruled that the property is still permitted as an existing non-conforming use and that the occupancy permit was issued properly.

Tobin and Cutner, who had once served on the zoning board, claim that the board was “determined to reach a particular result” and had unilaterally rewritten the zoning code.

The board ignored the plain language of zoning regulations and decisions, they contend, and had improperly discussed the issue with city officials in violation of the state Open Meetings Law and the city’s public hearings regulations.

They are asking the court to annul the zoning board decision, declare that the decision was arbitrary and capricious, direct the city to rescind the occupancy permit, and restrain the zoning board from granting the owners a variance to operate the restaurant.

Attorneys for Ocean Blue Prime and City of Rye did not reply to emails asking for their side of the story.