Matter of Hamptons, LLC v Zoning Bd. of Appeals of the Inc. Vil. of E. Hampton

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Matter of Hamptons, LLC v Zoning Bd. of Appeals of the Inc. Vil. of E. Hampton 2011 NY Slip Op 32714(U) October 5, 2011 Supreme Court, Suffolk County Docket Number: 12952-2011 Judge: Melvyn Tanenbaum 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. [* 1] SHORT FORM ORDER- JUDGMENT INDEX NO. 11952-201 I SUPREME COURT - STATE OF NEW YORK IAS. PART XIII SUFFOLK COUNTY ~ to<-, ~ \.... PRESENT: HON. MELVYN TANENBAUM Justice ,L " ¢ ¢ ¢ ¢. 10'0\;-\\ MOTION If 001. If 002 Case Disp RlD:06-07-2011 SID:07-15-2011 In Ihe Mauer of c/o THE HAMPTONS, LLC, d/b/a c/o THE MAIDSTONE and I,EXINGTON LOUNGE, LLC. Petitioners, PLTFS/PET$ ATI'V: CAIrN & CAHN, LLP 21 High Street, Suite 3 l-iuntingloll. NY 11743 fur an Order Pursuant to Article 78 ofthe Civil Practice Law and Rules in the Nature of IIIGJI(/allllls and cerriorari -againslTHE ZONING BOARD OF APPEALS OF THE INCORPORATED VU.LAGE OF EAST HAMPTON and the DESIGN R[V[EW BOARD OF THE VILLAGE OF EAST HAMPTON, DEFT'SIRESP'S ATIY: LAMB & BARi'lOSKY. U~P 534 Broadhollow Road. P.O.Bux 9034 Melville, NY 11747 RespondcllIs .. Upon the following papers numbered 1 to 32 read on Ihis mOlion for an order pursuant to CPLR See 6301 & 6302. 7803 Notice of MOlion/Order to Show Cause and supp0rling papcrs...!.:i--; NOIice of Cross Motion and supporting papers 5-16 Answering Affidavits and supporting papers 17-18. 19-24. 25-26 Replying Affidavits and supponing papers 27-32 Olher ; (and ",fte. I IC"', illg CbUII5e1 ill "Uppdt t <Iudoppmcd IV the ",otioil) it is. ORDERED that thlS motion by petitioners THE HAMPTONS, LLC d/b/a c/o THE MAIDSTONE and LEXlNGTON LOUNGE, LLC ("MAIDSTONE") broughton by Orderto Show Cause seeking an order pursuant to CPLR Section 6301 & 6312 enjoming respondents ZONING BOARD OF APPEALS OF THE INCORPORATED VlLLAGEOFEASTHAMPTON ("ZONING BOARD'") and the DESIGN REVIEW BOARD OF THE VILLAGE OF EAST HAMPTON ("DESIGN REVIEW BOARD") from enforcing the conditions set forth in respondents resolutions dated Aplil 8,2011 and April 20, 2011 respectively pending determination of petitioners CPLR Article 78 petition and this petition by petilioners "MAlDSTONE" seeking aJudgment pursuant to CPLR Section 7803 m the nature of mandamus to rCVlew and annul the determinations of: I) respondent "ZONING BOARD" dated AprilS, 2011 declating null and void conditions # 2 nnd#3, and 2) respondent "DESIGN REVIEW BOARD" dated Apnl 20, 2011 declaring null and void conditions # I,#2 and #3 are determined as follows: Petitioner "MAIDSTONE" operates an historic mn and restaurant as a nonconfonmng use in residential zoning district. On August 3, 2009 petitioner filed special permit and Site plan applications with respondents "ZONING BOARD" and "DESIGN REVIEW BOARD" seeking permission to extend the nonconforming use to include outdoor dining. On August 19,2009 [* 2] Hamptons v. Inc. Vlg. E. Hampton Index # 12952-201 I Page 2 respondent "DESIGN REVIEW BOARD" conducted a preliminary heming which was adjourned unlil September 16, 2009 for submission of sealing plans and additional malcrials by petitioners. Respondent "ZONING BOARD's" anginal September I 1,2009 public hearing date was adjourned tWIce from September 25,2009 and then unlil October 9, 2009. On October I, 2009 respondent BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF EAST HAMPTON ("BOARD OF TRUSTEES") conducted a publtc hcming to consIder enacting a local law which would prohibit outdoor dimng as an accessory use in any commercial establishment located in a residential dIstrict. FolJowmg the hearing the "BOARD OF TRUSTEES" enacted Local Law No. 10 of 2009 amending the Village Zoning Code to limit the authority of the "ZONING BOARD" and "DESIGN REVIEW BOARD" to approve outdoor dining in all residential districts on lots used for a pre-existing nonconforming or special permit usc. On October 16,2009 the "BOARD OF TRUSTEES" adopted a resolution ratifying and re-enacting the local law. As a result respondents discontinued petitioners special permit and site plan applications. Petitioners commenced a CPLR Article 78 proceeding to compel the respondents to schedule hearings and grant "MAIDSTONE's" special permit application to permit outdoor dining m the restaurant. By Judgment dated December 9, 2010 the petition was granted and respondents were directed to issue the special permit subject to reasonable conditions consistent with respondents June, 2008 special permit grant to another historic inn on the same street and in the same residential zoning district. By resolution dated April 8, 2011 respondent "ZONING BOARD" granted petitioner "MAIDSTONE's" special permit application subject to compliance with nine conditions. By resolulion dated April 20, 2011 respondent "DESIGN REVIEW BOARD"granted petitioner "MAIDSTONE" permission to provide outdoor dIning subject to compliance with three conditlons. PetitIOners claim lhat respondent "ZONING BOARD's" resolution conditions # 2 and # 3 and respondent "DESIGN REVIEW BOARD's" resolution conditions # 1, #2 and #3 must be declared null and void. Respondent "ZONING BOARD's" resolution conditions #2 and #3 provide: 2. The area in which the tables and chairs may be located shall include but be limited to the enlire area between the outside edges of the two curved walls immediately behind the awning at the back of the main portion of the principal building (much but not all of which is already paved as a slme patio), as depicted on the survey prepared by George Walbridge Surveyors, P.c., most recently revised July 14, 2009 Hamptons v. Inc. Vlg. E. Hampton [* 3] Index # 12952-2011 Page 3 (hereafter refcfTed to as thc "survey"), as Indicated by the hatch marks on the attached portion of the survey. To the extent some of the penmssible outdoor dllling area is not paved, but contains shrubbery, the shrubbery may be substituted with lawn, subject to the approval of the Design ReView Board. 3. The premises shall be landscaped so that vegetative screemng at least five feet in height shall be maintalllcd around the perimeter of the outdoor dinlllg area, along the outside of the curved walls and the back of the slate patio where the outdoor dining is permitted. Further, a double six-foot-high fence with sound baffling material sandwiched between the two fences shall be installed and maintained along the portions of the L-shaped northeast boundary line that strelch between the two one-story cottages. The foregoing shall be subject to Design Review Board approval. Respondent "DESIGN REVIEW BOARD's" resolution conditions #1, #2 and #3 provide: L The vegetative screening required pursuant to Condition #3 in the determination by the Zoning Board of Appeals around the perimeter of the outdoor dining area, along the outside of the curved walls and the back of the slate patio where the outdoor dining is permitted, shall be ilex inkberry, planted 18 inches on cenler and 5 feet high as planted. However, there shall be an opening 6 feet wide in the center of [he back of the slale patio (wesl side) and an opening 4 feet wide on the north side of the northerly curved wall whcre the existing slate connects to the circular wall. 2. There shall be no additions or changes in outdoor lighting or III illuminating the outdoor dining area, with the sale exception of three pathway fixtures, two to be installed on either side of the 6-foot-wide opening in {he ilex required by the foregoing paragraph (at the center of the slate patio on the wesl side) and one at the 4-foot-wide opening in the ilex on the north side of the northerly curved wall. These pathway fixtures are to be HadcD Pathlytc (R3), with a maximum wattage A19 or florescent equivalent, to be on a stem of 18 wches above finished grade. 3. The sides of the sound-attenuating fence reqUIred pursuant to Condition #3 in the determination by the Zoning Board of Appeals shall be of clear western red cedar 5/4" x 10" tongue and groove boards with a cap of (he same material. [* 4] Hamptons v. Inc. Vig. E. Hampton Index # 12952-2011 Page 4 "MAlDSTONE's" petition seeks a judgment declaring the conditions set forth above null and void claiming that they violate the Coun's prior Judgment which required reasonable conditions consistent with the respondents 2008 special permit granted to the neighboring historic inn known as "1776". Petitioners seck a preliminary injunction enJ·oinino0 enforcement of the conditions . pending a determlllation of the underlying petition. Petitioners claim that the "ZONING BOARD's" condition # 2 requiring chairs and tables be clustered 1I1 a confined space causes an unreasonably hazardous conditions for patrons and slaff. Petilioners claim that the "ZONING BOARD's" condition #3 mandatingconslruction of double6-foot high fencinu~ with sound bafnino ~ materials and ~ ~ additional five fOOL vegetative screening is unnecessary and damaging to the premises. It is petitioners position that neither of these conditions were imposed by respondent when issuing the special permit to "1776" and therefore such conditions violate this Court's prior Judgment. Petitioners also claim that the "DESIGN REVIEW BOARD's" conditions are not consistent with the "ZONING BOARD's" conditions and must therefore also be declared null and void. Petitioners contend that an injunction IS necessary to enjoin respondents from enforcing the arbitrary conditions contained in respondents resolutions and that the CPLR Article 78 petition must be granted based upon respondents abuse of discretion and failure to abide by the prior Judgment. In opposition respondents submit a verified answer and two attorney affirmations and claim that no basis exists to grant injunctive relief since the conditions imposed by respondents are rationally based and designed to mitigate impacts on the residential community that adjoins It. Respondents claim [hal the requirements of fencing, shrubbery and additional hghting seek to protect neighboring property owners from the adverse effects resulting from {he proposed outdoor dining. Respondents claim that petitioner's palio location places the dining area eight feet beyond the transitional yard of the adjacent residences. Respondents also claim that the petition was improperly served and junsdicLionally defecti ve since the notice of petition failed to provide a return date in comphance with CPLR Section 403(a). There IS no issue but that jurisdiction has been acquired over the respondents based upon petitioner's service of rhe petition and motion brought on by Order to Show Cause upon the respondents WhlCh established the Court's return dale for submission of papers. A prehminary injunction may be granted upon a clear showing of three thmgs; I) the likelihood of ultimate success on the merits, 2) irreparable injury to movant absent the granting of the prelimmary injunction and 3) balancing of the equities in his favor (ALBINI v. SOLORK ASSOCIATES, 37 AD 2d 835, 325, NYS 2d 150 (2"' Dept., 1971); HUDSON VALLEY TREE INC v. BARCANA. INC, 114 AD 2d 400. 494 NYS 2d 124 (2"" Dept., 1985)). The December 9,2010 Judgment reqUired that respondents grant petitioners a special pennit to provide outdoor dining subject to reasonable conditions consistent with a prior substantially Identical application awarded to another historic faci lity in June, 2008. Based upon a revIew of the [* 5] I-Iamptons v. Inc. Vlg. E. I-Iampton Index # 12952-2011 Page 5 evidence submitted by the parties, petitioners have made the required clear showing of a likelihood of success on the melits. irreparable injury and a balancing of the equities in «MAIDSTONE's" favor SInce the conditions imposed by respondents appear inconsIstent with the prior 2008 speclal permit granted the neighboring histonc mn. Under such circumstances petitioners are entitled to a preliminary Injunction preventing enforcement of the conditions. CPLR Section 7803(3) provides: The only questions that my be raised in a proceeding under this article arc: 3. whether a determmation was made in violation of lawful procedure, was affected by an cnor of law or was arbitrary and capricious or an abuse of discretion, mcluding abuse of discretion as to the measure or mode of penalty or discipline imposed ... In a proceeding in the nature of mandamus to review a court examines an administrative action involving the exercise of discretion. Mandamus to review resembles certiorari except that in a certiorari proceeding a quasi-judicial hearing is required and the reviewing appellate court has the benefit of a full record. The standard of review in such a proceeding is "substantial evidence" (CPLR Section 7803(4). "In a mandamus to review proceeding no hearing is requtred; the petitioner need only be given an opportunity to be heard and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law." (CPLR Asection 7803(3); SCHERBYN v. WAYNE-FINGER LAKES BD. OF CO-OP., 77 NY2d 753, 757-758, 570 NYS 2d 474 (1991»). Based upon a review of the cvidence submItted, respondents resolution conditions requiring: 1) clustering of tables and chairs IIIa confined space; 2) construction of double 6-foot fencing with sound bafflmg materials; 3) vegetative screening; and 4) prohlbition of outdoor lighting was arbitrary and capricious and clearly not consistent with respondents June, 2008 special permit award to "1776". The pnor Judgment required imposition of reasonable conditJons measured against the prior award. The conditions imposed by respondents are unreasonable and an abuse of the "ZONING BOARD" and "DESIGN REVIEW BOARD's" discretion pallicularly where precedent was previously established. This petition seeking a judgment setting aside the conditions set fOIlh in respondents resolution must therefore be granted. Accordingly It is ORDERED that petitioners motion for an order pursuant to CPLR Section 6301 & 6312 is granted, and it is further ORDERED, ADJUDGED AND DECREED that petitioners CPLR Article 78 pelitIOn is granted. The conditions denominated as # 2 and #3 set forth in respondent "ZONING BOARD's" resolution dated Api'll 8, 20 [ 1 and the conditions denominated as # 1, #2 and #3 in respondent [* 6] Hamptons v. Inc. Vig. E. Hampton Cndex # 12952-2011 Page 6 "DESIGN REVIEW BOARD's" resolution dated Apnl 20,2011 are hereby declared null and vOld, Respondents are directed to issue the special pennit subject to the remait1lng conditIons set forth 10 respondcnts resolutions Wtthlll 20 days of the date of service of a copy of this Judgment wIth notice of entry. Datcd: October 5, 2011 l.S.C.

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