| Matter of Town of Hempstead v Board of Appeals of Town ofHempstead |
| 2013 NY Slip Op 02257 [105 AD3d 751] |
| April 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Town of Hempstead,Appellant, v Board of Appeals of Town of Hempstead et al.,Respondents. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), forrespondent Board of Appeals of Town of Hempstead. Avrutine & Associates, PLLC, Syosset, N.Y. (Howard D. Avrutine of counsel), forrespondent Scotty's Marina, Inc.
In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination ofthe Board of Appeals of the Town of Hempstead dated November 30, 2005, which, aftera hearing, granted Scotty's Marina, Inc., a special permit to use a deck above a waterwayfor the outdoor consumption of food, the petitioner appeals from a judgment of theSupreme Court, Nassau County (Murphy, J.), entered September 23, 2011, which deniedthe petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Scotty's Marina, Inc. (hereinafter Scotty's), owns property abutting the ReynoldsChannel, a navigable waterway owned by the Town of Hempstead. In 2004, Scotty'sapplied to the Town's Department of Buildings for a permit to "maintain outside dining"on a deck above Reynolds Channel. The Department of Buildings disapproved theapplication pursuant to the Building Zone Ordinance of the Town of Hempstead(hereinafter the Zone Ordinance), art XXVII, § 272 (C) (10), which provides thatthe outdoor consumption of food requires a special permit from the Board of Appeals ofthe Town of Hempstead (hereinafter the Board). Scotty's appealed to the Board.
At the public hearings before the Board, the application was opposed, among otherthings, on the ground that the Board did not have jurisdiction to grant a special permit forthe proposed outside dining, because the deck was located above a town-ownedwaterway and the use had not been approved by the Town. In a determination datedNovember 30, 2005, the Board granted Scotty's application, finding, inter alia, that themere consumption of food on the deck did not constitute a restaurant use, and that theapplication by Scotty's met the standard set forth in the applicable Zone Ordinance forthe issuance of a special permit.
The Town commenced this proceeding, inter alia, pursuant to CPLR article 78,challenging the Board's determination. The Supreme Court denied the petition anddismissed the proceeding.[*2]
On judicial review, a determination of a zoningboard should be sustained if it is not illegal, has a rational basis, and is not arbitrary andcapricious (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Pinnetti v Zoning Bd. ofAppeals of Vil. of Mount Kisco, 101 AD3d 1124 [2012]). Here, the Board'sdetermination was not illegal, had a rational basis, and was not arbitrary and capricious.The evidence in the record supports the conclusion that the proposed use of the deck byScotty's for outdoor dining was merely incidental to its already existing, permissiblemarina use (cf. Matter of Gilchrist v Town of Lake George Planning Bd., 255AD2d 791, 792-793 [1998]). Indeed, a permit authorizing the erection and maintenanceof the subject deck was already in place, having previously been issued by the Town'sown Department of Conservation and Waterways in 1998. Furthermore, the Board'sfinding that the proposed use of the deck would not have any meaningfully negativeconsequences on the surrounding properties and the adjacent neighborhood is supportedby the record.
The Board clearly had jurisdiction to grant a special permit for the outdoorconsumption of food on the deck based on Town Law § 267 and Zone Ordinance,art XXVII, § 267 (D) (2). As the Supreme Court correctly reasoned, the Board'sdetermination constituted a permissible exercise of its jurisdictional authority, i.e., itsauthority to grant special permits and exceptions for, inter alia, outdoor dining(see Zone Ordinance, art XXVII, § 272 [C] [10]). Thus, contrary to theTown's contention, the Board did not act in excess of its jurisdiction in rendering thesubject determination (see CPLR 7803 [2]; Zone Ordinance, art XXVII, §272 [C] [10]). Rivera, J.P., Leventhal, Hall and Roman, JJ., concur.