Matter of Green 2009, Inc. v Weiss

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Matter of Green 2009, Inc. v Weiss 2012 NY Slip Op 31424(U) May 14, 2012 Sup Ct, Nassau County Docket Number: 14456/11 Judge: Antonio I. Brandveen 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 SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN 1. S. C. TRI / lAS PART 29 In the Matter of the Application of GREEN 2009 , INC. NASSAU COUNTY Petitioner against - Index No. 14456/11 Motion Sequence No. 001 for a judgment pursuant to Article 78 of the Civil Practice law and Rules, DAVID P. WEISS, Chairman, GERALD G. WRGHT , KATUA E. D' AMATO , CHRSTIAN BROWN , JOHN F. RAGANO , FRANK A. MISTERO and KIMERLY A. PERRY constituting the members of the TOWN OF HEMPSTEAD BOARD OF ZONING APPEALS Respondents. The following papers having been read on this motion: Notice of Petition , Affidavits , & Exhibits. . . Answering Affidavits. . . . . . . . Replying Affidavits Briefs: Plaintiffs / Petitioner s. . Defendant' s / Respondent' s. . The corporate lessee petitioner seeks an order and judgment pursuant to CPLR Article 78 to annul the August 24 2011 determination by the Town of Hempstead Board of Zoning Appeals. The Board denied the petitioner s application for a special exception to use of a premises designated on the Nassau County land and tax map as Section 57 , Block 102 and Lot 518. The petitioner contends , although a Code of the Town of Hempstead [* 2] 996- (A) applies to previously approved specific cabaret use , any potential ambiguity in that amendment , specifically Town of Hempstead Building Zone Ordinance 9272- C (6) effective March 31 , 1997 , must be strictly construed in its favor. Petitioner maintains it is entitled to operate its new cabaret pursuant to the 1969 special use permit as a prior conforming use that is unaffected by the 1997 amendments to the ordinance , and that it need not apply for a new special exception permit. The petitioner also contends the August 24 2011 decision reopened and reversed an April 28 , 2010 board resolution and June 2 , 2010 amendment which approved the initial temporary and sequent permanent special exception for cabaret use , approved the parking variance and denied the determination by the Department of Buildings that a special use exception was required. The petitioner asserts that 2010 approval , by its terms, was set to expire on April 28 , 2015. The petitioner maintains it accrued renovation expenses and other related costs in reliance upon the approval initially granted by the respondents. The petitioner avers any earlier decisions and the certificate of occupancy did not limit the premises to a specific cabaret use. The petitioner maintains the Code amendment only applies to previously approved specific cabaret uses , and does not apply to the subject premises which was previously approved for general cabaret use. The respondents oppose the petition. The respondents point out there was a unanimous request by members of the Board of Zoning Appeals , acting pursuant to the Code of the Town of Hempstead 267-a(12), to reopen this matter. The respondents indicate a hearing was held on May 28, 2011 on the applications with additional witnesses evidence and legal arguments submitted for the consideration ofthe Board of Zoning Page 2 of 5 [* 3] Appeals. The respondents assert the Board of Zoning Appeals concluded it misapprehended the actual nature and scope of the petitioner s proposed use , and that misapprehension arose from what reasonably appeared to have been an intentional and studied intent by the petitioner to be less than complete and candid in its description of its planned use and activities , to wit the nature of the so-called " Las Vegas Style entertainment to be offered there. The respondents aver the petition is fatally defective because the pleadings fail to comply with CPLR 30 15(b) regarding alleging corporate status and the failure pursuant to CPLR 100 I to join a necessary part, the owner of the subject propert. The that is One 55 Day, Inc. respondents claim , in view ofthe 1997 Code amendment, the petitioner may not rely on the 1969 special use permit " dancing and live music " so the Board of Zoning Appeals properly denied the petitioner s appeal from the determination ofthe Town of Hempstead Deparment of Buildings. Local zoning boards have broa4 discretion in considering applications for area variances , and judicial review is limited to determining whether the action taken by the board was ilegal , arbitrary and capricious , or an abuse of (see Matter of Pecoraro v. Board of Appeals of Town of 98 N. 2d 304 Matter ofIfrah Hempstead 2 NY3d 608 308; Matter of Wallach v. Wright 91 AD3d 881). In determining whether to grant an area variance , a zoning board is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health safety and welfare of the neighborhood or community if the variance is (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead discretion v. Utschig, , 613; granted Matter of Ifrah Nathan v. Zoning Bd. of Appeals of Vilage 2 NY3d at 612; v. Utschig, 98 N. of Russell Gardens, 2d at 307) --- N. 2d ---- , 2012 WL 1605991 (2d Dept , 2012). zoning board of appeals must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the (see Matter of Ifrah 2d 667 , 774 N. E.2d 732 (2002); 98 N. 2d 304 307 , 746 N. 2d 259 657 Matter of Sasso v. Osgood 86 N. 2d 374 382 384 633 N. (a J neighborhood or community if the variance is granted Utschig, Page 3 of 5 [* 4] E.2d 254 (1995)). The zoning board is also required to consider whether (I) granting the area variance wil produce an undesirable change in the character ofthe neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method , feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or (see Matter of Ifrah district; and (5) the alleged difficulty is self-created 2d 667, 774 N. E.2d 732)... 98 N. 2d at 308, 746 N. determination of a zoning board should be sustained on judicial review if it (see Matter of , 746 N. 2d 667 , 774 N. 2d 732; 98 N. 2d at 308 Ifrah 2d 56 382 N. E.2d 45 N. 2d 441 , 444 , 410 N. Utschig, has a rational basis and is supported by substantial evidence v. Utschig, Matter of Fuhst v. Foley, 756 (1978) ). Pecoraro v. Board of Appeals of Town of Hempstead 2 N. Y.3d 608 612- 613 814 N. E.2d 404 (2004 This Court cannot conclude the respondents ' denial of the petitioner s application for a special exception to use here was either an abuse of discretion , irrational or based upon (see generally Tandem generalized community objections under these circumstances Holding Corp. v. Board of Zoning Appeals of Town of Hempstead 43 N. 2d 801 , 373 2d 282 (1977)). The Board had the right , after the unanimous request of its members acting pursuant to Town Law 9267-a , to reopen , schedule and publicly notice a new hearing for both a special use exception and a parking space variance. The record shows the Town of Hempstead Board of Zoning Appeals reasonably considered all of the factors regarding the petitioner s application for a special exception to use and weighed the petitioner interest against the interest of the locality and supported its determination as required by law upon the considered presentations of the parties (see Pecoraro v. Board of Appeals of Town of Hempstead, supra). Board action refusing to grant a " special exception " is by definition and in Page 4 of 5 , , ,: . [* 5] (see Matter of essential character discretionary and not a denial of a right supra; Barkmann v. Town , there would be no point in listing of Hempstead 294 N. Y. 805). Otherwise certain uses as the permitted ones in a use district and listing others as permissible only when specially, exceptionally and affirmatively authorized by the board... For a court to say that those reasons are not good enough would mean that the Judges have taken over the duties and powers of the board. Special exception " disputes are to be resolved by the " common-sense judgments " of "representative citizens doing their best to make accommodations between conflcting community pressures , and for the courts to intervene , in the absence of clear ilegality, would be " contrary to the settled and practical necessities of zoning procedure (Matter of Von supra) Kohorn v. Morrell 9 N Y 2d 27 2d 374 (1962J. 11 N. 2d 20, 24- , 226 N. Matter of Lemir Realty Corp. v Larkin Reed v. Board of Stds. Appeals 255 N. Y. 126 Accordingly, the petition is dismissed. This decision wil constitute the judgment and order of the Court. So ordered. Dated: May 14, 2012 EN T E J. S. C. FINAL DISPOSITION &NTERED MAY 16 2012 NAIi COUNTY COUNtY CLERK' OFFIH Page 5 of 5

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