| Matter of Green 2009, Inc. v Weiss |
| 2014 NY Slip Op 01002 [114 AD3d 788] |
| February 13, 2014 |
| Appellate Division, Second Department |
| In the Matter of Green 2009, Inc.,Appellant, v David P. Weiss, as Chairman of the Town of Hempstead Board ofZoning and Appeals, et al., Respondents. |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (PeterSullivan and Michael J. Bonneville of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Boardof Appeals of the Town of Hempstead dated August 24, 2011, after a rehearing, vacatingits prior determination dated June 2, 2010, and thereupon denying the petitioner'sapplication for a special exception permit, the petitioner appeals from a judgment of theSupreme Court, Nassau County (Brandveen, J.), entered May 16, 2012, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The Code of the Town of Hempstead § 96-1 (A) defines a cabaret, in relevantpart, as "[a]ny room, place or space wherein musical entertainment, singing, dancing in adesignated area or other form of amusement or entertainment is permitted in conjunctionwith the sale or service of food or drink to the public." Effective March 31, 1997, theTown of Hempstead Building Zone Ordinance § 272 (C) (6) was amended toprovide that "the grant of any cabaret use by the Board of Zoning [sic] Appeals shall belimited to the specific cabaret use applied for and approved by the Board of Zoning [sic]Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter orpreviously granted by the Board of Zoning [sic] Appeals." In its determination datedAugust 24, 2011, the Town of Hempstead Board of Appeals (hereinafter BOA)determined that the above-quoted 1997 amendment to the Building Zone Ordinance wasapplicable to the proposed cabaret use of the petitioner's premises, for which a specialexception permit had been granted in 1969 allowing the property to be used as a cabaret.
In a proceeding pursuant to CPLR article 78 to review a determination of a zoningboard of appeals, a zoning board's interpretation of its zoning ordinance is entitled togreat deference and will not be overturned by the courts unless unreasonable or irrational(see Matter of Kabro Assoc.,LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118, 1119 [2012]; Matter of Ferraris v Zoning Bd. ofAppeals of Vil. of Southampton, 7 AD3d 710, 711 [2004]; Matter of HomeDepot USA v Baum, 243 AD2d 476, 478 [1997]). Judicial review is generallylimited to ascertaining whether the action was illegal, arbitrary and capricious, or anabuse of discretion (see Matter of Ifrah v Utschig, 98 [*2]NY2d 304, 308 [2002]; Matter of Fuhst v Foley, 45NY2d 441, 444 [1978]; Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. ofAppeals, 95 AD3d at 1119; Matter of Mejias v Town of Shelter Is. Zoning Bd. ofAppeals, 298 AD2d 458, 458-459 [2002]). As the BOA's interpretation of the zoningcode provision at issue is neither unreasonable nor irrational, we decline to disturb it (see Matter of Kennedy v ZoningBd. of Appeals of Vil. of Patchogue, 57 AD3d 546 [2008]).
Moreover, the BOA did not improvidently exercise its discretion when it reopenedand reheard the petitioner's application for a special exception permit after it hadoriginally granted it (see Matterof Moore v Town of Islip Zoning Bd. of Appeals, 28 AD3d 772 [2006]). Thepetitioner contends that the rehearing was improper because he had relied to hisdetriment on the previously granted special exception permit, having expended fundsrenovating and altering the premises for its proposed use. However, Town Law §267-a (12) permits a zoning board to rehear its determination, "provided the board findsthat the rights vested in persons acting in good faith in reliance upon the reheard order,decision or determination will not be prejudiced thereby." Here, the BOA expresslyfound that the petitioner did not rely upon the previously granted special exceptionpermit in good faith, but rather, the petitioner intentionally misled the BOA concerningthe intended use of the premises at the initial hearing on the application.
A denial of a special exception permit must be supported by evidence in the recordand may not be based solely upon community objection (see Matter of Retail Prop.Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196[2002]). However, where evidence supporting the denial exists, deference must be givento the discretion of the zoning board, and a court may not substitute its own judgment forthat of the zoning board, even if a contrary determination is supported by the record(see id; Matter of WhiteCastle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d731, 732 [2012]).
The BOA's findings pertaining to the petitioner's lack of candor and good faith werecredibility determinations, and issues of credibility were within the sole province of theBOA to resolve (see Matter ofJones v Zoning Bd. of Appeals of the Town of Oneonta, 90 AD3d 1280, 1282[2011]). Moreover, in addition to the objections of members of the community, there wasalso evidence presented, which was within the province of the BOA to credit, thatgranting the petitioner's application for a special exception permit would have an adverseimpact on neighboring properties (see Matter of Retail Prop. Trust v Board of ZoningAppeals of Town of Hempstead, 98 NY2d at 196; Brick Hill Constr. Corp. vZoning Bd. of Appeals of Town of Somers, 74 AD2d 810, 811 [1980], affd53 NY2d 621 [1981]).
The petitioner's remaining contention does not require reversal.
Accordingly, the Supreme Court properly upheld the BOA's denial of the petitioner'sapplication for a special exception permit. Mastro, J.P., Rivera, Sgroi and Cohen, JJ.,concur.