| Matter of Bonefish Grill, LLC v Zoning Bd. of Appeals of the Vil. ofRockville Ctr. |
| 2017 NY Slip Op 06643 [153 AD3d 1394] |
| September 27, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Bonefish Grill, LLC,Respondent-Appellant, v Zoning Board of Appeals of the Village of Rockville Centre,Appellant-Respondent. |
Cullen and Dykman LLP, Garden City, NY (Thomas B. Wassel of counsel), forappellant-respondent.
Davidoff Hutcher & Citron LLP, Garden City, NY (Michael G. Zapson and Jonathan E.Temchin of counsel), for respondent-appellant.
In a proceeding pursuant to CPLR article 78 to review two determinations of the ZoningBoard of Appeals of the Village of Rockville Centre, both dated May 30, 2014, which,respectively, after a hearing, imposed conditions upon the granting of the petitioner's applicationsfor a parking variance and a substantial occupancy permit, the Zoning Board of Appeals of theVillage of Rockville Centre appeals, as limited by its brief, from (1) so much of an order of theSupreme Court, Nassau County (Jaeger, J.), dated October 30, 2014, as denied that branch of itsmotion which was for recusal, (2) so much of an order of the same court dated December 23,2014, as, in effect, directed that the petition be granted to the extent of annulling the conditionsrestricting hours of operation and requiring valet parking, (3) so much of an order of the samecourt (Peck, J.), dated February 23, 2015, as, upon reargument, adhered to the determination inthe order dated December 23, 2014, directing that the petition be granted to the extent ofannulling the conditions restricting hours of operation and requiring valet parking, and (4) somuch of an order and judgment (one paper) of the same court dated March 10, 2015, as, upon theorders dated December 23, 2014, and February 23, 2015, granted those branches of the petitionwhich were to annul the conditions restricting hours of operation and requiring valet parking; andthe petitioner cross-appeals, as limited by its notice of appeal and brief, from (1) so much of theorder dated February 23, 2015, as, in effect, denied its cross motion to compel the Zoning Boardof Appeals of the Village of Rockville Centre to issue a permanent certificate of occupancy, and(2) so much of the order and judgment dated March 10, 2015, as, upon the order dated February23, 2015, failed to award such relief.
Ordered that the appeals from the orders dated October 30, 2014, December 23, 2014, andFebruary 23, 2015, and the cross appeal from the order dated February 23, 2015, are dismissed;and it is further,
Ordered that the order and judgment is reversed insofar as appealed from, on the law, thosebranches of the petition which were to annul the conditions restricting hours of operation [*2]and requiring valet parking are denied, and those portions of theproceeding are dismissed; and it is further,
Ordered that the order and judgment is affirmed insofar as cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the Zoning Board of Appeals of the Village ofRockville Centre.
The appeals and cross appeal from the intermediate orders must be dismissed since anintermediate order made in a CPLR article 78 proceeding is not appealable as of right(see CPLR 5701 [b] [1]; Matterof Smyles v Board of Trustees of Inc. Vil. of Mineola, 120 AD3d 822 [2014]), and anypossibility of taking a direct appeal or cross appeal therefrom terminated with the entry of theorder and judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Westchester County CorrectionOfficers Benevolent Assn., Inc. v County of Westchester, 71 AD3d 1040 [2010]). Theissues raised on the appeals and cross appeal from the orders are brought up for review and havebeen considered on the appeal and cross appeal from the order and judgment (see CPLR5501 [a] [1]).
The petitioner is the lessee of property located at 340 Sunrise Highway in the Village ofRockville Centre (hereinafter the subject property). In 2013, the petitioner sought to demolish theexisting structure on the subject property and build a 5,400-square-foot restaurant. Given thesquare footage of the proposed structure, the Village's Zoning Code (hereinafter the ZoningCode) required the petitioner to have 54 off-street parking spaces. The subject property did nothave any off-street parking spaces.
In applying for a building permit, the petitioner, as a means to remedy the lack of off-streetparking spaces, proposed to merge the subject property's lot with the adjoining property locatedat 330 Sunrise Highway, which was also owned by the lessor of the subject property. Thepetitioner anticipated that the proposed merger would allow it to utilize an exception to theZoning Code's off-street parking requirement for "interior restaurants that abut municipal parkingfields." The adjoining property was adjacent to a municipal parking lot.
The Village's Building Department then issued a building permit to the petitioner. When thepetitioner's restaurant was substantially completed, the Building Department discovered that theproposed merger between the subject property and the adjoining property had never taken place.As a result, before issuing a certificate of occupancy, the Building Department directed thepetitioner to apply for a parking variance. The petitioner did so, relying on a license agreementwhich allowed the petitioner access to the adjoining property's 40 exclusive parking spacesbetween 4:00 p.m. and 12:30 a.m. on Mondays through Fridays. On May 30, 2014, the Village'sZoning Board of Appeals (hereinafter the ZBA) granted the parking variance but imposed severalconditions, including that the restaurant's operating hours be restricted to 4:00 p.m. through 12:30a.m. on Mondays through Fridays, and that valet parking be mandatory. On the same day, theZBA granted the petitioner's application for a substantial occupancy permit, imposing the sameconditions.
Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the ZBA'sdeterminations dated May 30, 2014, and to annul the conditions. During the proceeding, the ZBAmoved, among other things, for recusal. The Supreme Court denied that branch of the ZBA'smotion. Subsequently, the court granted those branches of the petition which were to annul theconditions restricting the restaurant's operating hours to after 4:00 p.m. during weekdays andrequiring valet parking.
Contrary to the ZBA's contention, the Supreme Court providently exercised its discretion indenying that branch of its motion which was for recusal. "Absent a legal disqualification underJudiciary Law § 14, a Trial Judge is the sole arbiter of recusal" (People vMoreno, 70 NY2d 403, 405 [1987]; see Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856[2017]). "A court's decision in this respect may not be overturned unless it was an improvidentexercise of discretion" (Wells FargoBank, N.A. v Chaplin, 144 AD3d 1021, 1023 [2016] [internal quotation marks [*3]omitted]). Denial of a motion for recusal is appropriate where, ashere, the movant fails to set forth any proof of bias or prejudice on the part of the court whichwould have warranted recusal (see W& H Equities, LLC v Odums, 150 AD3d 1176 [2017]; Stepping Stones Assoc.,L.P. v Scialdone, 148 AD3d at 856; Wells Fargo Bank, N.A. v Chaplin, 144 AD3d at1023).
"A zoning board may, where appropriate, impose reasonable conditions and restrictions asare directly related to and incidental to the proposed use of the property, and aimed at minimizingthe adverse impact to an area that might result from the grant of a variance or special permit"(Matter of St. Onge v Donovan, 71 NY2d 507, 515-516 [1988] [internal quotation marksomitted]; see Village Law § 7-712-b [4]; Matter of Rendely v Town of Huntington, 44 AD3d 864, 865[2007]). "However, 'if a zoning board imposes unreasonable or improper conditions, thoseconditions may be annulled although the variance is upheld' " (Matter of Martin v Brookhaven Zoning Bd.of Appeals, 34 AD3d 811, 812 [2006], quoting Matter of Baker v Brownlie, 270AD2d 484, 485 [2000]).
Here, the ZBA's conditions requiring valet parking and limiting the petitioner's hours ofoperation to coincide with the hours of access to the 40 off-street parking spaces granted in thelicense agreement were proper because the conditions related directly to the use of the land andwere intended to protect the neighboring commercial properties from the potential adverse effectsof the petitioner's operation, such as the anticipated increase in traffic congestion and parkingproblems (see Matter of Milt-Nik LandCorp. v City of Yonkers, 24 AD3d 446, 449 [2005]; Matter of Plandome Donuts vMammima, 262 AD2d 491 [1999]; Matter of Moundroukas v Nadel, 223 AD2d 645,646 [1996]; see also Matter of FNRHome Constr. Corp. v Downs, 57 AD3d 540, 542 [2008]). " 'The need toalleviate traffic congestion by requiring adequate parking facilities' is a legitimate considerationfor a zoning board of appeals" (Matter of FNR Home Constr. Corp. v Downs, 57 AD3d at542, quoting Matter of Il Classico Rest. v Colin, 254 AD2d 418, 420 [1998]).
Contrary to the Supreme Court's determination, the ZBA's rationale was supported byempirical and testimonial evidence (cf.Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118,1120 [2012]). The ZBA was entitled to rely on the testimony of the local store owners, since "azoning board's reliance upon specific, detailed testimony of neighbors based on personalknowledge does not render a variance determination the product of generalized and conclusorycommunity opposition" (Matter ofRamapo Pinnacle Props., LLC v Village of Airmont Planning Bd., 145 AD3d 729, 731[2016]; see Matter of Fagan vColson, 49 AD3d 877, 878 [2008]). Their testimony was supported by the observationof the petitioner's own expert that there is a great demand for parking in the area of the subjectrestaurant. Members of the ZBA were also entitled to rely on their own personal knowledge ofthe area in reaching their decision (seeMatter of Colin Realty Co., LLC v Town of N. Hempstead, 107 AD3d 708, 710 [2013],affd 24 NY3d 96 [2014]).
The petitioner's alternative grounds for affirmance on the ZBA's appeals (see ParochialBus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]) are without merit.
Accordingly, those branches of the petition which were to annul the conditions restrictinghours of operation and requiring valet parking must be denied, and those portions of theproceeding must be dismissed.
Contrary to the petitioner's contention on its cross appeal, the Supreme Court properly, ineffect, denied the petitioner's cross motion to compel the ZBA to issue a permanent certificate ofoccupancy. The record does not support the petitioner's contention that the ZBA promised toissue a permanent certificate of occupancy upon the petitioner's filing of a declaration ofcovenants and restrictions. Mastro, J.P., Leventhal, Austin and Roman, JJ., concur.