Matter of DPL & B LLC v Village of Goshen Zoning Bd. of Appeals

[*1] Matter of DPL & B LLC v Village of Goshen Zoning Bd. of Appeals 2013 NY Slip Op 51930(U) Decided on November 22, 2013 Supreme Court, Orange County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 22, 2013
Supreme Court, Orange County

In the Matter of the Application of DPL & B, LLC, Petitioner,

against

Village of Goshen Zoning Board of Appeals, VILLAGE OF GOSHEN PLANNING BOARD; THEODORE LEWIS, III, in his individual capacity and official capacity as the Village Building Inspector; CHESTER LEBARON, BETRO & PRAY, INC. d/b/a DELANCEY'S RESTAURANT, and MICHAEL J. TOSCANO, Respondents.



7597/13



RICHARD B. GOLDEN, ESQ.

BURKE, MIELE & GOLDEN, LLP

Attorneys for Petitioner

40 Matthews Street, P.O. Box 216

Goshen, New York 10924

JAY R. MYROW, ESQ.

BLUSTEIN, SHAPIRO, RICH & BARONE, LLP

Attorneys for Respondent

BETRO & PRAY, INC. d/b/a DELANCEY'S RESTAURANT

10 Matthews Street

Goshen, New York 10924

DAVID A. DONOVAN, ESQ.

DICKOVER, DONNELLY, DONOVAN & BIAGI, LLP

Attorneys for the Respondents

THE VILLAGE OF GOSHEN ZONING BOARD OF

APPEALS, THE VILLAGE OF GOSHEN PLANNING BOARD AND THEODORE L. LEWIS, III BOTH IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS THE VILLAGE BUILDING INSPECTOR

28 Bruen Place, P.O. Box 610

Goshen, New York 10924

James D. Pagones, J.

Petitioner seeks a judgment, pursuant to CPLR Article 78, declaring that the determinations of the respondents Building Inspector Lewis, dated April 3, 2013, and Zoning Board of Appeals, on August 14, 2013, were arbitrary, capricious, an abuse of discretion and without substantial evidence. Respondent Betro & Pray, Inc. d/b/a Delancey's Restaurant moves for an order, pursuant to CPLR §7804(f), dismissing the petition. Respondents the Village of Goshen Zoning Board of Appeals, The Village of Goshen Planning Board and Theodore L. Lewis, III, both in his individual capacity and in his official capacity as the Village Building Inspector, move for an order, pursuant to CPLR §7804(f) and CPLR 3211(a)(7), dismissing the petition. Petitioner also moves for an order, pursuant to CPLR §6301, enjoining the respondent Betro & Pray, Inc. d/b/a Delancey's Restaurant from operating as a restaurant/bar during the pendency of this action.

The following papers were read:

Notice of Petition-Verified Petition-Affirmation-1-9

Exhibits A-F

Notice of Motion-Affidavit-Annexed Exhibits-10-13

Affidavit of Service

Notice of Motion-Affidavit-Affirmation-Annexed14-17

Exhibits

Order to Show Cause-Memorandum of Law-18-27

Affirmation-Exhibits A-G

Affirmation in Opposition—Affidavit of Service-28-35

Exhibits A-F

Memorandum of Law in Opposition36

Affirmation in Opposition-Exhibits A-B37-39

Affidavit in Opposition-Affidavit of Service40-41

Memorandum of Law-Affidavit of Service42-43

Upon the foregoing papers, the motions are decided as follows:

By way of background, petitioner herein is challenging the [*2]Village of Goshen Zoning Board of Appeals' (hereinafter the ZBA) determination that respondent Chester Lebaron and Betro & Pray, Inc., d/b/a Delancey's Restaurant (hereinafter Delancey's) may operate a restaurant and/or bar at 40 Park Place, Goshen, New York. Petitioner is an adjoining property owner with its principal place of business located at 42 Park Place, Goshen, New York.

On or about April 2, 2013, respondent Michael J. Toscano (Toscano) filed an application for a building permit for 40 Park Place. Respondent Village of Goshen Building Inspector Theodore Lewis, II (Lewis) issued Building Permit No. 3868 to Toscano for the "interior alteration of the existing restaurant/bar" for the property. On May 30, 2013, Lewis issued a Certificate of Occupancy for the property to respondent Chester Lebaron. On June 3, 2013, Lewis issued Building Permit No. 3891 to Joseph Betro for a "free standing sign (exist.) Sign replacement" for the property. On May 31, 2013, petitioner appealed Lewis' issuance of Building Permit No. 3868 and his determination that the property had been used as a restaurant/bar within twelve (12) months preceding the building permit, to the ZBA. On July 10, 2013, the petitioner amended its appeal to include the issuance of the May 30, 2013 Certificate of Occupancy and Building Permit No. 3891.

After a public hearing on July 10, 2013, the ZBA denied petitioner's application and upheld Lewis' issuance of two Building Permits, Certificate of Occupancy and his determination that the restaurant/bar use of the property had been in existence and was operating on the property during the prior twelve (12) months preceding the building permit, pursuant to The Code of the Village of Goshen, Appendix A, Article 8, Section 8.2.2.1(d)[FN1].

Local zoning boards have broad discretion and judicial review of their actions is limited to determining whether the action taken by the zoning board was illegal, arbitrary, or an abuse of discretion (see Matter of Ifrah v. Utschig, 98 NY2d 304 [2002]; Matter of Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d 545 [2nd Dept 2007]; Matter of Mann v. Zoning Bd. of Appeals of Town of E. Hampton, 34 AD3d 588 [2nd Dept 2006]; Matter of DiPaci v. Zoning Bd. of Appeals Vil. of

Upper Nyack, 4 AD3d 354 [2nd Dept 2004]). A determination should be sustained upon judicial review if it was not illegal, has a rational basis, and is not arbitrary and capricious (see Matter of Sasso v. Osgood, 86 NY2d 374 [1995]; Matter of [*3]Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood, 38 AD3d 545 [2nd Dept 2007]; Matter of Pietrzak & Pfau Assoc., LLC v. Zoning Bd. of Appeals of Town of Wallkill, 34 AD3d 818 [2nd Dept 2006]; Matter of Pasceri v. Gabriele, 29 AD3d 805 [2nd Dept 2006]). The courts may not weigh the evidence or reject the choice made by the zoning board where the evidence is conflicting and room for choice exists (see Matter of Calvi v. Zoning Bd. Of Appeals of City of Yonkers, 238 AD2d 417 [2nd Dept 1997]).

Contrary to the petitioner's contention, upon a review of the records, this court finds that the determination of the ZBA, i.e. that the nonconforming use of the premises was not abandoned, was not arbitrary and capricious. The ZBA found, in its decision dated August 20, 2013, that the property located at 42 Park Place, Goshen, New York had "long been utilized as a restaurant/eating dining establishment and that said use was before Zoning was adopted in the Village and was long protected as a pre-existing, non-conforming use." Further, the ZBA found that the decision of the building inspector "was well founded and supported by the record." Said record included, extensive testimony from counsel for the applicant, petitioner herein, and counsel for the restaurant operator and property owners and the subpoenaed testimony of Mr. Lewis. The ZBA concluded that the owner of the premises had produced overwhelming evidence that the premises had been used for a restaurant/eating and drinking establishment for the specified period of time being questioned by the applicant/petitioner herein and even assuming all the statements made by the applicant/petitioner herein and its representatives were true, they were insufficient to overcome the evidence and testimony before the board.

Here, the petitioner fails to establish that the determination of the ZBA was illegal, arbitrary, or an abuse of discretion. The zoning board's determination is entitled to great deference and will not be overturned, as it was neither unreasonable nor irrational (see Action Redi-Mix Corp. v. Cianciulli, 309 AD2d 742 [2nd Dept 2003]). Further, the record contains sufficient evidence to support the rationality of the ZBA's determination (see Halperin v. City of New Rochelle, 24 AD3d 768 [2nd Dept 2005]). Additionally, the premise is now completed and operational and there is nothing in the record to suggest that petitioner sought injunctive relief preventing the alterations to the proposed restaurant site or preventing the restaurant from opening. Petitioner's failure to seek injunctive relief prior to the completion of the improvements and the opening of the restaurant renders the petition academic (see generally Ughetta v. Barile, 210 AD2d 562 [3rd Dept 1994] leave to appeal denied by 85 NY2d 805).

Additionally, while the first paragraph of the Notice of Petition indicates that the decision of the ZBA on August 14, [*4]2013, was "...without substantial evidence..." The determinations of a zoning board are to be reviewed under the arbitrary and capricious standard of CPLR §7803(3) and not the substantial evidence standard of CPLR §7803(4), thus transfer to the Appellate Division pursuant to CPLR §7804(g) would be improper (see Halperin v. City of New Rochelle, 24 AD3d 768 [2nd Dept 2005]).

Based upon the foregoing, the petition is dismissed. Respondents' motions are granted in their respective entirety. Petitioner's order to show cause is denied as academic.

The foregoing constitutes the decision, order and judgment of the Court.

Dated:November 22, 2013

Poughkeepsie, New York

ENTER

________________________________

HON. James D. Pagones, A.J.S.C.

112213 decision & order Footnotes

Footnote 1: Section 8.2.2.1(d) provides: "Any nonconforming use of buildings or open land...may be continued indefinitely, but: Shall not be re-established if such use has been abandoned or has been changed to, or replaced by, a conforming use. Intent to resume a nonconforming use shall not confer the right to do so. Discontinuance of a nonconforming use for a period of one year or more shall create a rebuttable presumption of abandonment."