| Matter of Kogel v Zoning Bd. of Appeals of Town ofHuntington |
| 2009 NY Slip Op 00213 [58 AD3d 630] |
| January 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of James Kogel et al., Appellants, v ZoningBoard of Appeals of Town of Huntington et al., Respondents. |
—[*1] John J. Leo, Town Attorney, Huntington, N.Y. (Thelma Neira of counsel), for respondentsZoning Board of Appeals of Town of Huntington and Town of Huntington. Thomas A. Abbate, Woodbury, N.Y., for respondent Tino's Enterprises, Inc.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination ofthe Zoning Board of Appeals of Town of Huntington dated September 20, 2006, which, after ahearing, among other things, granted the application of Tino's Enterprises, Inc., for a parkingvariance and issued a negative declaration pursuant to the State Environmental Quality ReviewAct (ECL art 8), and action for a judgment declaring that the determination dated September 20,2006 is null and void, the petitioners-plaintiffs appeal from an order and judgment (one paper) ofthe Supreme Court, Suffolk County (Whelan, J.), dated December 13, 2007, which granted themotion of the Zoning Board of Appeals of Town of Huntington and Town of Huntington, ineffect, for summary judgment declaring that the determination dated September 20, 2006 isvalid, denied the petition, and dismissed the hybrid proceeding and action.
Ordered that the order and judgment is reversed, on the law, without costs or disbursements,the motion, in effect, for summary judgment declaring that the determination dated September20, 2006 is valid is denied, the petition is granted, the determination is annulled, and the cause ofaction for a judgment declaring that the determination is null and void is dismissed asunnecessary.[*2]
Since 1982 Tino's Enterprises, Inc. (hereinafter Tino's)has operated a motel on property it owns in the Town of Huntington. The use of the motel waspermitted by the Town's zoning regulations at the time it was constructed, but by 1982, the usebecame nonconforming. In 1983, after the Zoning Board of Appeals of Town of Huntington(hereinafter the ZBA) denied Tino's 1982 application for a use variance that would allow it toadd 20 units to the then 31-unit motel, the ZBA granted Tino's new application for a "UseVariance to erect an addition to [the] existing motel including 15 units," finding that "theaddition of 15 new units . . . will not alter the essential character of the withinneighborhood."
In 2003 Tino's applied to the ZBA seeking, inter alia, a determination that it was permitted toexpand the motel from 46 units to 71 units without obtaining a new use variance on the groundthat the 1983 determination converted the previously nonconforming motel use into a permitteduse. The ZBA denied that branch of the application, finding, inter alia, that the 1983 use variancewas limited to the addition of 15 rooms.
In 2004 Tino's made a new application to the ZBA for the variances, including a parkingvariance, necessary to allow it to, inter alia, increase the number of motel units on the propertyfrom 46 to 61. Tino's again argued that a use variance was not required to add the new motelunits. After declaring itself the lead agency pursuant to the State Environmental Quality ReviewAct (ECL art 8) (hereinafter SEQRA), classifying the proposed action as a Type I action, andcausing the preparation of a full environmental assessment form (hereinafter the EAF), the ZBAdetermined on September 20, 2006 that Tino's was not required to obtain a use variance for theproposed expansion, granted Tino's application for a parking variance, and issued a negativedeclaration pursuant to SEQRA. This hybrid proceeding and action was then commenced, interalia, to review the ZBA's determination dated September 20, 2006 (hereinafter the 2006determination), and for a judgment declaring that the 2006 determination is null and void. TheSupreme Court granted the motion of the ZBA and the Town, in effect, for summary judgmentdeclaring that the 2006 determination is valid, denied the petition, and dismissed the hybridproceeding and action. We reverse.
The ZBA's 2003 determination that Tino's was required to obtain a use variance to add newmotel units should have been given preclusive effect pursuant to the doctrine of collateralestoppel (see Ryan v New York Tel. Co., 62 NY2d 494, 499-501 [1984]; Matter of Palm Mgt. Corp. vGoldstein, 29 AD3d 801, 803-804 [2006]; Matter of Timm v Van Buskirk, 17 AD3d 686 [2005]; Matterof Waylonis v Baum, 281 AD2d 636, 638 [2001]). Moreover, although the grant of anunconditional use variance renders a nonconforming use conforming, such that a further usevariance is not required to expand the use (see Matter of Angel Plants v Schoenfeld, 154AD2d 459, 460-461 [1989]), the use variance granted to Tino's in 1983 was clearly limited to theaddition of 15 rooms (see Matter of Borer v Vineberg, 213 AD2d 828, 829 [1995]).Thus, even if it were not barred by the doctrine of collateral estoppel, the 2006 determinationthat a use variance was not required for the proposed expansion was irrational and contrary tolaw (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d 608, 613 [2004]).
The ZBA also failed to make a "reasoned elaboration" of the basis for its negativedeclaration and to demonstrate that it took the requisite "hard look" at the relevant areas ofenvironmental concern (Matter of Jackson v New York State Urban Dev. Corp., 67NY2d 400, 417 [1986]). The ZBA classified the proposed action as a Type I action, meaning thatit "carries with it the presumption that it is likely to have a significant adverse impact on theenvironment" (6 NYCRR 617.4 [a] [1]). [*3]Further, the EAFprepared by Town staff identified several potential environmental impacts to the freshwater pondlocated on the property and noted that the proposal conflicted with the 1993 update to the Town'sComprehensive Plan, which provided that no further commercial development should bepermitted within the area in which the property is located (see 6 NYCRR 617.7 [c] [1][iv]). Nevertheless, the ZBA issued a negative declaration pursuant to SEQRA, thus concludingthat the proposed action would not have a significant effect on the environment, withoutproviding any elucidation of its reasoning (see Matter of Farrington Close Condominium Bd.of Mgrs. v Incorporated Vil. of Southampton, 205 AD2d 623, 625 [1994]). Accordingly, theSupreme Court should have denied the motion of the ZBA and the Town, in effect, for summaryjudgment declaring that the 2006 determination is valid, granted the petition, and annulled the2006 determination. In light of the foregoing, the cause of action for a judgment declaring thatthe 2006 determination is null and void should have been dismissed as unnecessary. Santucci,J.P., Covello, Balkin and Belen, JJ., concur.