Matter of Country Glen, LLC v Botticelli Bldrs., LLC
2012 NY Slip Op 30924(U)
April 2, 2012
Supreme Court, Nassau County
Docket Number: 11-012133
Judge: Steven M. Jaeger
Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
publication.
----------------------------------------------------------------
CtV
[* 1]
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. STEVEN M. JAEGER
Acting Supreme Court Justice
In the Matter of the Application of
COUNTRY GLEN , LLC
TRIAL/lAS , PART 41
NASSAU COUNTY
INDEX NO. : 11- 012133
XXX
Petitioner
MOTION SUBMISSION
DATE: 2- 17-
For a Judgment Pursuant to CPLR Article 78
MOTION SEQUENCE
-against-
NO.
BOTTICELLI BUILDERS , LLC , BRENT
ASSOCIATES INC. and DAVID MAMMINA,
Chairman , DONAL McCARTHY , PAUL
ALOE , ANNA KAPLAN and LESLIE
FRANCIS , constituting the Board of Zoning
Appeals of the Town of North Hempstead
Respondents.
The following papers read on this motion:
Notice of Petition and Verified Petition
Verified Answer and Return and Exhibits (Town of North Hempstead)
Verified Answer (Brent Associates)
Affirmation in Opposition (Town of North Hempstead)
Affirmation in Opposition to Petition (Brent Assoc.
Affirmation in Support
Reply Affirmation
Verified Answer and Return (Town of North Hempstead)
Proceeding pursuant to CPLR article by the petitioner Country Glen , LLC
for an order inter alia setting aside and annulling a determination of the
respondent North Hempstead Board of Zoning Appeals , dated July 13 2011
,"
[* 2]
which granted an application by the respondents Botticelli Builders , LLC and
Brent Associates ,
Inc. for a special use permit and related parking variance.
In March of 2009 , the respondents Botticelli Builders , LLC and Brent
Associates , Inc. (" the respondents ) applied to the North Hempstead Board of
Zoning Appeals (the " Board" ), for: (1) a conditional use permit; and (2) related
parking variance ,
so as to convert portions of an existing commercial building into
a proposed , night club with a dine- in restaurant , to be located at 168C Glen Cove
Road , in Carle Place , New York (Pet. , ,-,- 8- 9; Return Exh.
In sum , and according to the respondents , the club would be an upscale- type
establishment , catering to an older clientele , which would operate primarily from
Thursday to Sunday during the hours of 10:00 p. m. to 4:00 a. m. Valet parking
would be made available to club patrons (March , 2011 Hearing Tr. , 203 , 247;
October , 2009 Hearing Tr. , 159 , 160).
By notice of disapproval dated June 2 , 2009 , The North Hempstead
Building Department denied the application on the grounds that there was
insufficient parking provided; namely that some 221 spaces were available
whereas 461 were required; and that a special permit was necessary to operate the
club (Return Exh.
)(see Town of North Hempstead Code (" Code ), 99 70-
103(AJ(1); 70- 215(B); 70- 225(B)(1),
(2)).
,"
[* 3]
A hearing before the Board was conducted with respect to the variance and
permit requests ,
inter
but the respondents later modified their original proposal by,
alia eliminating the restaurant and down-sizing the club' s square footage area
(Return Exh.
). A second hearing was conducted in connection with the
modified application. The petitioner Country Glen , LLC (" Country Glen ), which
owns the adjacent Country Glen Shopping Center, appeared at both hearings in
opposition to the applications. Country Glen and the respondents each submitted
expert traffic evidence in support of their respective positions (Return Exhs.
By decision dated July 13
2011 , the Board granted the requested parking
variance and the special use permit , although its approval was made subject to the
filing of revised plans and a series of ten , separately framed conditions , including
a maximum club occupancy of 668 persons (Decision at 16- 18).
Specifically, the Board determined , among other things , that: (l) the
subject club property is located in an Industrial " B" zone - the most permissive in
North Hempstead - which already contains a large number of shopping centers
and food uses; (2) there are no residential zones within a 300- foot
radius of the
proposed club; (3) the respondents proposed a total of217 marked parking stalls
which created at least a 47% deficiency in terms of the Co e-mandated , off-street
[* 4]
parking requirements; (4) most of the surrounding commercial uses would be
closed during the club' s peak hours of operation (10:45 p. m. to 12:30 a. m); and (5)
the club' s
valet parking system would be capable of accommodating up to 238
parking spaces (Decision at 5
, fn 3
11).
Based on these and other factual findings , the Board determined that the
club would not create traffic or safety issues on Glen Cove Road and would not
result in any significant , detrimental impacts to the health safety and welfare of the
surrounding neighborhood and community - particularly in light of the various
condition and requirements imposed in connection with the granting of the
application (Decision , 13- 15)(Code 9 70- 225(BJ(1J(a)-(gJ). Relying in part on the
respondents ' expert submissions , as well as its own personal inspections and/or
observations (Decision at 3), the Board further determined that the parking plan
proposed by the respondents would be sufficient to accommodate the anticipated
vehicle volume generated by the club without negatively impacting upon traffic
flow along Glen Cove Road (Decision at 7- 8;
12- 14).
The Board concluded that
the parking concerns raised by Country Glen were overstated and/or unsupported
by the record
Country Glen s assertion that inter alia
parking
overflow
would result and cause patrons to park on - and then trespass over - its property
in order to reach the club (Decision at 5- 10).
[* 5]
Significantly, among the conditions imposed by the Board , was one which
authorized the Town to station a Town employee on-site at the club , who would
then be charged with ensuring compliance with the Board' s decision and
applicable zoning Code provisions (Decision at 17 , conditions , ,- 5).
By verified petition dated August , 2011 , the petitioner Country Glen , LLC
the petitioner
), commenced the within proceeding pursuant to CPLR Article 78
to set aside and annul the Board' s determination. The respondents , including the
municipal respondents , have filed answers denying the material allegations of the
petition. The matter is now before the Court for review and resolution of the
petitioners ' claims.
Upon the record presented , the petition should be denied and the proceeding
dismissed on the merits.
It is settled that " (l)ocal zoning boards are vested with broad discretion in
considering applications for area variances , and judicial review is limited to
determining whether the action taken by the board was illegal , arbitrary and
capricious , or an abuse of discretion
Enterprises
728
, LLC
, 729 (2009);
608 612-
613 (2004);
v.
Wright 81 AD3d 955
Pecoraro
v.
Matter ofIfrah
v.
(Wallach
956
Wright 91 AD3d 881
see
, Gebbie
v.
882;
JSB
Mammina 13 NY3d
Board of Appeals of Town of Hempstead 2 NY3d
Utschig,
98 NY2d 304
307 (2002);
White
[* 6]
Castle System
, Inc.
v.
AD3d
Board of Zoning Appeals of Town of Hempstead
2012 WL 833168 (2
see also Town Law 267- b(3J(bJ). In
Dept. 2012)
determining whether to grant an area variance , a zoning board is required by, Town
Law 9 267- b(3J(b), to engage in a balancing test " weighing the benefit to the
applicant against the detriment to the health , safety and welfare of the
see Town Law 9 267-
98 NY2d at 307
b(3J(b);
White Castle System
of Zoning Appeals of Town of Hempstead
v.
, supra; Wallach
Dong
v.
Utschig,
(Matter of Ifrah
neighborhood or community if the variance is granted"
, Inc.
v.
Board
Wright , supra; Qing
Mammina 84 AD3d 820 , 820).
Upon applying the test , however
(a) Zoning Board is ' not required to
justify its determination with supporting evidence with respect to each of the five
statutory) factors , so long as its ultimate determination balancing the relevant
(Matter of Genser
considerations was rational ",
v.
Appeals of
Board of Zoning
Town of N. Hempstead 65 AD3d 1144 , 1147 quoting from , Matter of Merlotto
Town of Patterson Zoning Bd. of Appeals 43 AD3d 926
Enterprises
, Inc.
v.
City of Glen Cove 90 AD3d 764
767;
, 929
see also , Steiert
Friedman
v.
Board of
Appeals of Village ofQuogue 84 AD3d 1083 , 1085).
With respect to special permits
(t)he classification of a particular use as
permitted in a zoning district is ' tantamount to a legislative finding that the
[* 7]
permitted use is in harmony with the general zoning plan and will not adversely
1000 , 1001-
v.
(Twin County Recycling Corp.
affect the neighborhood' * * *"
1002 (1997)
see
Yevoli 90 NY2d
see , Retail
Appeals of Inc. Vi!. of Thomas ton 30 NY2d 238 , 243-c
244 (1972)
v.
Property Trust
196 (2002);
Board of
v.
, Matter of North Shore Steak House
Board of Zoning Appeals of Town of Hempstead 98 NY2d 190
White Castle System
, Inc.
v.
Board of Zoning Appeals of Town of
Hempstead, supra 2012 WL 833168; Town Code 9 70- 225(BJ). Further once it
is shown that the contemplated use is in conformance with the conditions imposed
the special use permit must be granted unless there are reasonable grounds for its
denial , supported by substantial evidence (Plaza Associates
Town of Babylon 250 AD2d 690
, 693
see
Zoning Appeals of Town of Hempstead
North Hempstead
Misc. 3d.
, Retail Property Trust
, supra; Colin Realty Co. LLC
v.
, L.P.
v.
Town Bd. of
Board of
v.
Town of
, 2012 WL 757010 (Supreme Court , Nassau
County 2012J).
With these principles in mind , the Court agrees that the challenged variance
and permit determinations are rationally based on the evidentiary record developed
before the Board. More particularly, the evidence supports the Board' s findings
inter alia that the subject location is an exclusively commercial location
characterized by a variety of proximately located restaurant uses and retail
[* 8]
establishments; that the proposed club use is of a scope , character , and design
appropriate to , and in harmony with , these surrounding uses; and that
considering the occupancy limit and other conditions imposed - the proposed club
will neither materially hinder , impair nor discourage the appropriate use and
development of the adjacent uses (Town Code 9 70-
337; Green
Lo Grande 96 AD2d 524
Hinck 220 AD2d 501
244 AD2d 336
Town Bd. of Town of Oyster Bay,
generally, Matter of Lerner
, 502;
, 525
Matter ofC.B.
see
225(B)(1J(a)-(g)
see also
, Framike Realty Corp.
Props.
Rose 205 AD2d 686 687).
It bears noting that the Board imposed a series of requirements , including on-site
compliance observation and an occupancy limit , which would correspondingly
(see, Matter ofC.B.
lessen the pressure placed on the existing parking resources
Props.
Rose, supra).
Although there was conflicting expert testimony relating to what impact the
use would have upon inter alia parking and access to the proposed club , there
was evidence presented - which the Board in its discretion could credit
indicating that there would be adequate parking available to support the proposed
use , particularly in light of the Club'
Metro Enviro Transfer
(2005); Matter of Retail Prop. Trust
, LLC
s later hours of peak operation
(see , Matter of
Vilage of Croton- on-Hudson 5 NY3d 236 241
Board of Zoning Appeals of Town of
g.,
[* 9]
Hempstead, supra
Matter of Gordon
v.
at 196;
Green
v.
Lo Grande, supra 96 AD2d at 525-
Peterson 230 AD2d 856
Jack
857;
cf,
526
Framike Realty Corp.
Hinck, supra 220 AD2d 501 502 ). It is settled that " (w)here there is
conflicting expert testimony, deference must be given to the discretion and
(White Castle System
commonsense judgments of the zoning board"
, Inc.
Board
v.
of Zoning Appeals of Town of Hempstead, supra).
Contrary to the petitioner s assertions , the record establishes that the Board
rationally engaged in the statutorily mandated balancing test. Moreover, while the
variance was significant
City of White Plains Zoning Bd. of Appeals 87 AD3d 1135
Matter ofCacsire
1137; Friedman
(see
, its mathematical scope is not alone determinative
v.
Board of Appeals of Village ofQuogue , supra 84 AD3d 1083
1085 see also, Colin Realty Co. LLC
v.
Town of North Hempstead
, supra),
since
there was evidence on which the Board could rely, showing that the overall impact
of granting the request would not adversely, or otherwise result in an undue
detriment to the health
, safety, and welfare of the community
(Matter ofCacsire
City of White Plains Zoning Bd. of Appeals , supra 87 AD3d 1135 , 1137- 1138). W
While an issue arose at the hearing relating to the proper application of the
Code s off-street parking provisions mandated thereunder (Code 9 70- 103(A)(1)
and the precise
number required spaces
March , 2011 Hearing Tr. , 224-
[* 10]
232) - the Board' s determination with respect to parking was predicated upon
inter alia the fixed , maximum occupancy figure it imposed , in conjunction with
expert testimony projecting the number of vehicles which would actually utilize
the existing parking resources available. The Board acknowledged that the parking
variance was mathematically significant , but rationally weighed the factors
v.
Co. LLC
v.
(Wallach
relevant to the specific proposal before it
Town of North Hempstead
, supra).
Wright , supra; Colin Realty
Upon doing so , it permissibly
concluded that the variance and resulting parking usage would not create an
undesirable change in - or adversely impact upon neighborhood
(Colin Realty Co. LLC
v.
the character of the
Town of North Hempstead, supra , 2012
WL 757010).
Although the petitioner may disagree with the Board'
v.
Town of Hempstead
s conclusions
(e.
The Town of Hempstead - Misc. 3d - ' 2011 WL
4657385 (Supreme Court , Nassau County, 2011)), when a rational basis exists for
a challenged decision , reviewing courts may not substitute their own judgment for
that of a zoning board , even if the court would have decided the matter differently
or if a contrary determination is supported by the record
Transfer
, LLC
Retail Prop. Trust
Village of Croton-on-Hudson , supra
v.
(Matter of Metro Enviro
5 NY3d at 241;
Matter of
Board of Zoning Appeals of Town of Hempstead, supra , 98
[* 11]
NY2d at 196 ;
White Castle System
Hempstead, supra
, Inc.
v.
Board of Zoning Appeals of Town of
v.
Roberts
2012 WL 833168;
Wright
, supra).
Indeed , where
there are grounds in the record supporting the challenged determination
deference must be given " to the commonsense judgments of the board " which is
composed of community members who " generally, possess the familiarity with
local conditions necessary to make the often sensitive planning decisions which
affect the development of their community
Town of Hempstead, supra 2 NY3d at 613 quotingfrom
Kern 41 NY2d 591
, 599 (1977)
see
Board of Appeals of
v.
(Pecoraro
, Matter of Cowan
Board of
, Matter of Retail Prop. Trust
Zoning Appeals of Town of Hempstead, supra
at 196).
The Court has considered the petitioners ' remaining contentions and
concludes that they are lacking in merit.
Accordingly, it is
ORDERED
that the petition is denied and the proceeding is dismissed on
the merits.
The foregoing constitutes the order and d
Dated: April 2 ,
sion of the Court.
2012
ENTE
APR
04
2012
NASSAU COUNTY
COUNTY CLERK' S OFFICE
