| Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town ofHempstead |
| 2012 NY Slip Op 01824 [93 AD3d 731] |
| March 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of White Castle System, Inc., et al.,Appellants, v Board of Zoning Appeals of Town of Hempstead,Respondent. |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Joseph E. Macy andDonna A. Napolitano of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review seven determinations of the Board ofAppeals of the Town of Hempstead, all dated June 2, 2010, which, after a hearing, denied theirapplications for special exception permits and variances, the petitioners appeal from a judgmentof the Supreme Court, Nassau County (Galasso, J.), entered January 6, 2011, which denied theamended petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof denyingthose branches of the amended petition which were to annul the determinations denying a specialexception permit to construct a refuse/recycling enclosure and a variance to install a detachedsign in setbacks and dismissing those portions of the proceeding, and substituting therefor aprovision granting those branches of the amended petition to the extent of annulling thosedeterminations; as so modified, the judgment is affirmed, without costs or disbursements, and thematter is remitted to the Board Appeals of the Town of Hempstead for further proceedingsconsistent herewith.
The petitioners applied to the Board of Appeals of the Town of Hempstead, sued herein asthe Board of Zoning Appeals of the Town of Hempstead (hereinafter the BOA), for specialexception permits and variances related to the construction of a proposed 24-hour White Castlerestaurant. The petitioners sought special exception permits to install two drive-thru windows, toallow for parking in front yard setbacks, and to construct a refuse/recycling enclosure. They alsosought variances to waive off-street parking requirements, for insufficient maneuverability andback-up space and non-permitted parallel parking in a front yard setback, to install adouble-faced, illuminated, detached sign in setbacks, and to install a second menu board sign.After submitting the applications, the petitioners submitted revised plans which met theminimum parking requirement.
After a public hearing, the BOA denied the applications. The petitioners commenced thisproceeding to review the BOA's determinations. The Supreme Court denied the amended [*2]petition and dismissed the proceeding. The petitioners appeal.
"Unlike a variance which gives permission to an owner to use property in a mannerinconsistent with a local zoning ordinance, a special exception gives permission to use propertyin a way that is consistent with the zoning ordinance, although not necessarily allowed as ofright" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead,98 NY2d 190, 195 [2002] [citation omitted]). Thus, the burden of proof on an owner seeking aspecial exception is lighter than that on an owner seeking a variance. The owner is required onlyto show compliance with legislatively imposed conditions pertaining to the intended use(id.; see Matter of Wegmans Enters. v Lansing, 72 NY2d 1000 [1988]). "Failureto comply with any condition upon a special exception, however, is sufficient ground for denialof the exception" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town ofHempstead, 98 NY2d at 195).
A denial of a special exception permit must be supported by evidence in the record and maynot be based solely upon community objection (id. at 196; see Matter of Twin CountyRecycling Corp. v Yevoli, 90 NY2d 1000 [1997]; Matter of Jaharr, Inc. v Ronik, 272AD2d 546 [2000]). Where such evidence exists, deference must be given to the discretion of thezoning board. A court may not substitute its own judgment for that of the zoning board, even ifsuch a contrary determination is itself supported by the record (see Matter of Retail Prop.Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d at 196; Matter ofToys "R" Us v Silva, 89 NY2d 411, 423 [1996]).
Here, evidence in the record, including testimony by experts in traffic and real estate and byneighboring property owners, supports the BOA's finding that the proposed drive-thru andparking in front yard setbacks would prevent the orderly and reasonable use of adjacentproperties, and would adversely affect the safety, health, welfare, comfort, convenience, or orderof the Town (see Town of Hempstead Building Zone Ordinance § 267 [D] [2] [a][1], [3]; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead,98 NY2d at 193). Where there is conflicting expert testimony, deference must be given to thediscretion and commonsense judgments of the zoning board (see Matter of Retail Prop. Trustv Board of Zoning Appeals of Town of Hempstead, 98 NY2d at 196). However, the BOA'sdenial of a special exception permit to construct a refuse/recycling enclosure was not supportedby evidence in the record and, thus, that application must be remitted to the BOA for approvalsubject to the imposition of reasonable conditions (see Matter of Capriola v Wright, 73 AD3d 1043 [2010]).
"Local zoning boards are vested with broad discretion in considering applications for areavariances, and '[c]ourts may set aside a zoning board determination only where the record revealsthat the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbedto generalized community pressure' " (Matter of Roberts v Wright, 70 AD3d 1041, 1042 [2010], quotingMatter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; see Matter of Ifrah v Utschig,98 NY2d 304, 308 [2002]). A determination of a zoning board on a variance application shouldbe sustained if it has a rational basis and is not arbitrary and capricious (see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613; Matter of Ifrah vUtschig, 98 NY2d at 308).
The BOA's denials of variances related to the proposed layout of the parking lot and themenu board sign were made upon proper consideration of the required factors and had a rationalbasis (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613;Matter of Ifrah v Utschig, 98 NY2d at 308). Accordingly, those determinations will notbe disturbed. However, the BOA's denial of a variance to install a double-faced, illuminated,detached sign in setbacks was lacking in evidentiary support and lacked a rational basis.Accordingly, that application must be remitted to the BOA for issuance of the variance (see Matter of Cacsire v City of WhitePlains Zoning Bd. of Appeals, 87 AD3d 1135 [2011], lv denied 18 NY3d 802[2011]).
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Roman and Sgroi,JJ., concur.