| Matter of Colin Realty Co., LLC v Town of N.Hempstead |
| 2013 NY Slip Op 03998 [107 AD3d 708] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of Colin Realty Co., LLC,Appellant, v Town of North Hempstead et al.,Respondents. |
—[*1] John B. Riordan, Town Attorney, Manhasset, N.Y. (Simone M. Freeman of counsel),for respondents Town of North Hempstead and Town of North Hempstead Board ofZoning and Appeals. Albanese & Albanese LLP, Garden City, N.Y. (Bruce W. Migatz of counsel), forrespondents Manhasset Pizza, LLC, and Fradler Realty Corporation.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of theTown of North Hempstead Board of Zoning and Appeals dated May 25, 2011, which,after a hearing, granted the application of Manhasset Pizza, LLC, for area variances and aconditional use permit, and action for a judgment declaring, in effect, that the proposedproject requires a use variance, the petitioner/plaintiff appeals from a judgment of theSupreme Court, Nassau County (Jaeger, J.), dated February 14, 2012, which, inter alia,denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
Manhasset Pizza, LLC (hereinafter Manhasset Pizza), sought to convert a vacantstorefront, located on Plandome Road in the Town of North Hempstead, into a 45-seat,full-service, dine-in restaurant. The storefront, which in the past housed, among otherthings, a retail gift shop, a dry cleaning establishment, and a take-out food store, is in anonconforming building without parking or a loading zone because, at the time of itsconstruction, the Code of the Town of North Hempstead (hereinafter the Town Code) didnot include any parking or loading-zone requirements. Restaurant uses are permitted inthe relevant zoning district, subject to the issuance of a conditional use permit (TownCode § 70-126). For the proposed restaurant use, the Town Code now requires oneoff-street parking space for every four seats or four persons "which [or who] can belegally accommodated," plus one space per employee (Town Code § 70-103 [A][1]). Although it is unclear how many persons the building could legally accommodate, itis undisputed that the restaurant, as proposed, would require a total of 24 parking spaces.
Since the proposal provided for no parking spaces and no loading zone, and sinceuse as a restaurant required a conditional use permit, Manhasset Pizza submitted anapplication to the [*2]Board of Zoning and Appeals ofthe Town of North Hempstead (hereinafter the ZBA) for variances from the parking andloading-zone requirements, and for a conditional use permit. After a hearing, the ZBAgranted the requested variances and permit. Colin Reality Co., LLC (hereinafter Colin),the owner of an adjacent property, thereafter commenced the instant hybrid proceedingand action, seeking to annul the determination and for a judgment declaring, in effect,that the proposed project required a use variance. The Supreme Court, inter alia, deniedthe petition and dismissed the proceeding.
Contrary to Colin's contentions, the ZBA properly determined that the variancespursuant to which Manhasset Pizza sought relief from the parking and loading-zonerequirements were to be treated as applications for area variances under the scheme ofthe Town Code (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449[1971]; Matter of Marro v Zoning Bd. of Appeals of City of Long Beach, 287AD2d 506 [2001]; Matter of Il Classico Rest. v Colin, 254 AD2d 418 [1998];Merrick Gables Assn. v Fields, 143 AD2d 117 [1988]; see also Matter of Halperin v Cityof New Rochelle, 24 AD3d 768, 773 [2005]; cf. Matter of Off Shore Rest.Corp. v Linden, 30 NY2d 160, 169 [1972]). In passing on an application for an areavariance, a zoning board is required to engage in a balancing test that weighs the benefitto the applicant if the variance is granted against the detriment to the health, safety, andwelfare of the neighborhood or community (see Matter of Il Classico Rest. vColin, 254 AD2d at 419; Matter of Halperin v City of New Rochelle, 24AD3d at 773). In making such a determination, a zoning board is to consider thefollowing factors: "(1) whether an undesirable change will be produced in the characterof the neighborhood or a detriment to nearby properties will be created by the granting ofthe area variance; (2) whether the benefit sought by the applicant can be achieved bysome method, feasible for the applicant to pursue, other than an area variance; (3)whether the requested area variance is substantial; (4) whether the proposed variance willhave an adverse effect or impact on the physical or environmental conditions in theneighborhood or district; and (5) whether the alleged difficulty was self-created, whichconsideration shall be relevant to the decision of the board of appeals, but shall notnecessarily preclude the granting of the area variance" (Town Law § 267-b [3][b]).
In the instant case, the ZBA engaged in the required balancing test and concluded,inter alia, that the issuance of variances from the parking and loading-zone requirementswould not have an adverse impact upon the surrounding area. In reaching thisconclusion, the members of the ZBA relied on their own personal knowledge of the area(see Matter of Il Classico Rest. v Colin, 254 AD2d at 419), along with testimonyfrom Manhasset Pizza's traffic engineer. That engineer conducted an empirical parkinganalysis, taking into consideration two nearby municipal lots, as well as availableon-street parking, and concluded, among other things, that there existed ample parking tosupport the proposed restaurant. Although a traffic engineer retain by Colin opined thatthe proposed restaurant would crowd available on-street parking, that expert alsoacknowledged that there would be parking spaces available in the nearby municipal lots.Inasmuch as the ZBA balanced and weighed the appropriate statutory factors, and basedits findings on objective facts appearing in the record, its determination to grant therequested area variances was rational and not arbitrary and capricious (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d 608, 612 [2004]; Matter ofHalperin v City of New Rochelle, 24 AD3d at 773).
Colin's remaining contentions are without merit. Angiolillo, J.P., Chambers, Hall andRoman, JJ., concur.