In the Matter of Colin Realty Co., LLC, Appellant,v.Town of North Hempstead, et al., Respondents.BriefN.Y.September 10, 2014APL-2013-00252 Nassau County Clerk’s Index No. 009407/11 Appellate Division, Second Docket No. 2012-03037 Court of Appeals STATE OF NEW YORK COLIN REALTY CO. LLC, Petitioner-Appellant, against TOWN OF NORTH HEMPSTEAD, TOWN OF NORTH HEMPSTEAD BOARD OF ZONING AND APPEALS and DAVID L. MAMMINA, DONAL MCCARTHY, PAUL ALOE, LESLIE FRANCIS, ANA KAPLAN, as Members thereof, and MANHASSET PIZZA LLC, and FRADLER REALTY CORPORATION, Respondents-Respondents. >> >> BRIEF FOR RESPONDENTS-RESPONDENTS MANHASSET PIZZA LLC AND FRADLER REALTY CORPORATION ALBANESE & ALBANESE LLP Attorneys for Respondents-Respondents Manhasset Pizza LLC and Fradler Realty Corporation 1050 Franklin Avenue Garden City, New York 11530 516-248-7000 To Be Argued By: Bruce W. Migatz Time Requested: 30 Minutes Of Counsel: Bruce W. Migatz Date Completed: December 16, 2013 i RULE 500.1.(f) STATEMENT The Respondent-Respondent, Manhasset Pizza LLC, has no parents, subsidiaries or affiliates. The Respondent-Respondent, Fradler Realty Corporation, has no parents, subsidiaries or affiliates. RULE 500.13.(a) STATEMENT There is related litigation between the parties in the action Colin Realty Co. LLC v. Manhasset Pizza LLC, Fradler Realty Corporation and John Doe No.1 through and including John Doe No. 5, Supreme Court, Nassau County Index No. 11-006563. In this action, commenced pursuant to Article 15 of the RPAPL, Colin Realty Co. LLC seeks judgment declaring that Manhasset Pizza LLC and Fradler Realty Corporation have no right to traverse the property of Colin Realty Co. LLC to access the property of Fradler Realty Corporation. In their counterclaim, Manhasset Pizza LLC and Fradler Realty Corporation seek judgment declaring that they have a prescriptive easement to traverse the property of Colin Realty Co. LLC to access the property of Fradler Realty Corporation. The Supreme Court issued a Short Form Order dated November 8, 2013, holding that Manhasset Pizza LLC and Fradler Realty Corporation do not have a prescriptive easement to traverse the property of Colin Realty Co. LLC to access the property of Fradler Realty Corporation. The Short Form Order directed ii judgment to be settled on notice. At this time, a judgment has not been entered. i TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES…………………………… iii STATEMENT OF THE NATURE OF THE CASE…………………… 1 POINT I THE ZBA PROPERLY TREATED THE PARKING AND LOADING ZONE VARIANCES AS AREA VARIANCES…………………………………………….….… 7 Amendments to Town Law §267, Village Law, §7-712 and General City Law §81-b…………… 14 Rationale for Treating Off-street Parking and Loading Zone Requirements as Area Variances………………. 22 POINT II THE ZBA’S DECISION GRANTING THE AREA VARIANCES FOR PARKING AND LOADING ZONE IS SUPPORTED BY THE RECORD…………………………………………….…… 26 Standards for Area Variances………………………………… 28 Whether an Undesirable Change Will be Produced in the Neighborhood or Detriment to Nearby Properties Will be Created by the Granting of the Area Variances……… 29 Whether the Benefit Sought by the Applicant Can be Achieved by Some Method Feasible for the Applicant to Pursue Other than an Area Variance……………. 34 Whether the Requested Area Variance is Substantial…………. 34 Whether the Proposed Variance Will Have an Adverse Effect or Impact on the Physical or Environmental Conditions in the Neighborhood District……… 35 Whether the Alleged Difficulty was Self Created………………. 36 ii POINT III THE ZBA PROPERLY REFUSED TO CONSIDER THE OBJECTIONS BY LOCAL PROPERTY OWNERS AND BUSINESSES SUBMITTED IN A PETITION TO THE ZBA SUBSEQUENT TO THE CLOSING OF THE PUBLIC HEARING………………………………………………….…… 37 CONCLUSION……………………………………………………..…. 39 APPENDIX …………………………………………………………… 40 Article XIX of the Code of the City of Albany Article VI of the Code of the Town of North Hempstead Section 319 of the Town of Hempstead Building Zone Ordinance iii TABLE OF CASES AND AUTHORITIES Cases Page 1215 Northern Boulevard, LLC. v. Board of Zoning Appeals of the Town of North Hempstead, 63 A.D. 3d 1071 (2d Dep’t 2009) ............................... 21 Board of Commissioners of Great Neck Park District v. Board of Zoning and Appeals of Town of North Hempstead,188 A.D.2d 464 (2d Dep’t 1992) ................ 4 Bohner v. Casatelli, 38 A.D.3d 1230 (4th Dep’t 2007) ............................................ 11 Conley v. Town of Brookhaven Board of Appeals, 40 N.Y.2d 309 (1976) ............. 26 Consolidated Edison Company of New York v. Hoffman, 43 N.Y.2d 598 (1978) ................................................................................. 14, 23, 24 Cowan v. Kearn, 41 N.Y.2d 591 (1977) .................................................................. 27 Cucci v. Zoning Board of Appeals of the Town of Huntington, 154 A.D.2d 372 (2d Dep’t 1989) ................................................................................................... 3 Dawson v. Zoning Board of Appeals of Town of Southold, 12 A.D.3d 444 (2d Dep’t 2004) ............................................................................................................3, 6 Evans v. Zoning Board of Appeals of the Village of Buchanan, 15 Misc.3d 1102(A) (Sup. Ct., Westchester Co. 2007) .............................................................. 21 Franklin Square Donut System, LLC, 63 A.D.3d 927 (2d Dep’t 2009), lv denied 14 N.Y.3d 711 (2010) .............................................................................. 38 Halperin v. City of New Rochelle, 24 A.D.3d 768 (2d Dep’t 2005), lv denied, 7 N.Y.3d 708 (2006) .................................................................................. 20, 26, 28 In Association For Preservation of 1700 Block of N St., N.W. v. District of Columbia Bd. Of Zoning Adjustment, 384 A.2d 674 (D.C. 1978) ........................... 22 Incorporated Village of Laurel Hollow, 247 A.D.2d 585 (2d Dep’t 1998) ............ 11 iv Kenyon v. Quinones, 43 A.D.2d 125 (4th Dep't 1973). ........................................... 28 Khan v. Zoning Board of Appeals of Village of Irvington, 87 N.Y.2d 344 (1996), ...................................................................................................................... 16 KMO-361Realty Assoc. v. Davies, 204 A.D.2d 547 (2d Dep’t 1994), lv denied 84 N.Y.2d 811 (1994) ............................................................................... 21 Matter of Fulling v. Palumbo 21 N.Y.2d 30 (1967) ........................................... 9, 12 Matter of Hampshire Mgt. Co. v. Nadel, 241 A.D.2d 496 (2d Dep’t 1997) ........... 37 Matter of Ifrah v. Utschig, 98 N.Y.2d 304 (2002) ................................................... 26 Matter of Il Classico Rest. v Colin, 254 A.D.2d 418 (2d Dep’t 1998) .................... 18 Matter of Lim-Kim v. Zoning Board of Appeals of the Village of Irvington, 185 A.D.2d 346 (2d Dep't 1992) ............................................................................. 35 Matter of North Shore Steak House v. Board of Appeals of the Incorporated Village of Thomaston, 30 N.Y.2d 238, (1972) .......................................................... 4 Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972)…7-14, 16, 18, 22 Matter of Otto v. Steinhilber, 282 N.Y. 71 (1939)............................................ 23, 24 Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 ............... 8, 9, 10, 12, 13, 14 Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of Pleasantville, 98 N.Y.2d 683 (2002) ............................................................................................. 26 Matter of Plandome Donuts v. Mammima, 262 A.D.2d 491 (2d Dep’t 1999) ........ 15 Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 (1997) .................................. 21 Matter of Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, 98 N.Y.2d 190 (2002) ............................................... 26, 27, 38 Matter of Stein v. Board of Appeals of Town of Islip, 100 A.D.2d 590 (2d Dep’t 1984) ........................................................................................................ 37 v Matter of Townwide Properties, Inc. v. Zoning Board of Appeals of the Town of Huntington, 143 A.D.2d 757 (2d Dep't 1988) ........................................... 36 Matter of Toys “R” Us v Silva, 89 N.Y.2d 411 (1966) ........................................... 33 Matter of Von Kohorn v. Morrell, 9 N.Y.2d 27 (1961) ........................................... 27 Merrick Gables Assn. v Fields, 143 A.D.2d 117 (2d Dep’t,1988), lv denied, 73 N.Y.2d 707 (1989) ...................................................................... 18, 19 Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236 (2005) ................................................................................................ 38 Mobil Oil Corp. v. Oaks, 55 A.D.2d 809 (4th Dep't 1976) ..................................... 27 Nadell v. Horsley, 264 A.D.2d 422 (2d Dep’t 1999) ............................................... 11 Pecoraro v. Board of Appeals of Town of North Hempstead, 2 N.Y.3d 608 (2004). ........................................................................................ 26, 38 Sasso v. Osgood, 86 N.Y.2d 374 (1995) ..................................................... 14, 23, 29 Syracuse Aggregate Corporation v. Weise, 51 N.Y.2d 278 (1980), ....................... 11 Village of Bronxville v. Francis, 1 A.D.2d 236 (2d Dep't 1956), aff'd 1 N.Y.2d 839 (1956) ................................................................................. 13, 24 Village of Fayetteville v. Jarrold, 53 N.Y.2d 254, 257 (1981) ............................... 23 Village of Valatie v. Smith, 190 A.D.2d 17 (3rd Dep’t 1993). ................................. 11 Winston v. Town of Bedford, Zoning Board of Appeals, 14 Misc.3d 1235(A) (Sup. Ct., Westchester Co. 2007) ............................................................................. 21 Statutes Page 6 NYCRR § 617.5……………………………………………………………….35 Code of the City of Albany, Section 375-173……………………………………24 vi Code of the City of Albany, Section 375-185……………………………………17 Code of the Town of North Hempstead, §70-47 …………………………….…..18 Code of the Town of North Hempstead, §70-47.1 ……………….………….…..18 Code of the Town of North Hempstead, §70-51……………………….…….…..18 Code of the Town of North Hempstead, §70-103 .……………………....16, 17, 21 Code of the Town of North Hempstead, §70-208 …………………………...4, 5, 6 Code of the Town of North Hempstead, §70-231 …………………………….…..5 Building Zone Ordinance of the Town of Hempstead, Section 319……………..19 General City Law §81-b(1)……………………………………………………….14 General City Law §81-b(3)……………………………………………………23, 25 Town Law §267(1)……………………………………………………………..…14 Town Law §267-b(2)……………………………………………………….…23, 25 Town Law §267-b(3)………………………………………………………28, 29, 36 Village Law, §7-712(1)…………………………………………………….……..14 Village Law, §7-712-b(2).……………………………………………………..23, 25 Other Authorities Page 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02……..…….2, 3, 5 Anderson, New York Zoning Law and Practice § 27:07-08 (4th ed. 2002) ………13 Practice Commentaries, McKinney’s Town Law § 267……………………7, 15, 34 156295.1 1 STATEMENT OF THE NATURE OF THE CASE The Respondent-Respondent, Manhasset Pizza LLC, as the proposed tenant of the Respondent-Respondent, Fradler Realty Corporation (hereinafter, collectively the “Applicants”), filed an application with the Respondent-Respondent, North Hempstead Zoning Board of Appeals (hereinafter, the “ZBA”), for a conditional use permit and variances to permit the conversion of an existing retail store to a restaurant with insufficient off-street parking spaces and no loading zone. The Petitioner-Appellant, Colin Realty Co. LLC (hereinafter, “Colin Realty”), owns the adjacent premises. Fradler Realty Corporation’s property (hereinafter, the “Premises”) are located on Plandome Road in the downtown section of Manhasset, New York (R.274, 300 feet radius map).1 The Premises are located in a Business A zoning district of the Town of North Hempstead, in which district retail stores are a permitted use and restaurants are a conditional use. The Premises are improved with a nonconforming commercial building without off-street parking or a loading zone, because at the time of its construction, the zoning code of the Town North Hempstead (hereinafter, the “Town Code”) did not include any off-street parking or loading zone requirements (R.75, ZBA Findings of Fact). 1 As used herein, “(R.__)” references are to pages of the Record on Appeal. 156295.1 2 In this downtown section of Manhasset, municipal parking lots provide off- street parking to supplement the lack of available off-street parking for many properties. The Manhasset Park District maintains two (2) municipal parking lots to the rear of the Premises and adjacent premises (R.75- 76, ZBA Findings of Fact). The commercial building on the Premises are subdivided into five (5) stores; a dry cleaners, a shoe repair, a hair salon and two vacant stores. The Applicants seek to convert one of the vacant stores to a restaurant with 45 seats. Under the scheme of the Town Code, the proposed restaurant would require twenty-four (24) parking spaces and one (1) loading zone (R.75 – ZBA Findings of Fact). Under the scheme of the Town Code, the vacant retail store which is proposed to be converted to the restaurant requires nine (9) parking spaces. Thus, the existing nonconforming number of parking spaces would be increased by fifteen (15) spaces (R.185-186 – ZBA Hearing Transcript). Colin Realty’s contention, that the proposed conversion of the vacant retail store to a restaurant requires a use variance, is based upon its misunderstanding that the retail store being converted to a restaurant is a non-conforming use. A nonconforming use is the use of land that predated the enactment of a zoning regulation prohibiting such use. 1 Anderson, New York Zoning Law and Practice (3d ed.) § 6.02; Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39 (1958). 156295.1 3 A nonconforming building or structure is a building or structure that does not conform to the requirements of the zoning ordinance, but the use conducted in the building or structure is permitted by the zoning ordinance. 1 Anderson, New York Zoning Law and Practice, (3d ed.), § 6.02; see Cucci v. Zoning Board of Appeals of the Town of Huntington, 154 A.D.2d 372 (2d Dep’t 1989); Dawson v. Zoning Board of Appeals of Town of Southold, 12 A.D.3d 444 (2d Dep’t 2004). Under the Town Code, a retail store is a permitted use in a Business A zoning district. The retail store is located in a nonconforming building, that does not conform with the off-street parking and loading zone requirements. The ZBA’s Notice of Decision states that the application was “to permit the conversion of a nonconforming retail store to a food use with established insufficient off-street parking and loading zone (R.71, emphasis added)." The ZBA Decision states that the Applicants seek a conditional use permit and variances "to permit improvements to a nonconforming commercial building with established insufficient parking and off-street loading and unloading zones (R.72, emphasis added)." The ZBA’s Findings of Fact states that “[t]he subject property is developed with a pre-existing, non-conforming one-story brick building, originally developed to accommodate seven storefronts (R.75, emphasis added).” Under the Town Code, restaurants are permitted in a Business A zoning district with a conditional use permit. A conditional use permit “allows the property owner to 156295.1 4 put his property to a use expressly permitted by the ordinance.” Matter of North Shore Steak House v. Board of Appeals of the Incorporated Village of Thomaston, 30 N.Y.2d 238, 243 (1972). Colin Realty has not alleged on its appeal to this Court that the ZBA’s grant of the conditional use permit for a restaurant was improper. The Supreme Court correctly held, as affirmed by the Appellate Division, that, since the retail store is a nonconforming building, and not a nonconforming use, Colin Realty’s reliance on Board of Commissioners of Great Neck Park District v. Board of Zoning and Appeals of Town of North Hempstead,188 A.D.2d 464 (2d Dep’t 1992) is misplaced. That case did not, as alleged by Colin Realty, hold that § 70-208 of the Town Code applies to any application by a pre-existing nonconforming store owner to change the use to a restaurant. In that case, the facts of which are discussed in the lower court’s decision (R.158-161), the applicant sought to convert a retail store, located in a residence zone, to a restaurant. The property was zoned Business A when the store was constructed. Thereafter, the zone was changed to Residence B, which prohibits retail stores, thereby making the retail store a nonconforming use. Restaurants are also prohibited in a Residence B zone. Accordingly, a use variance was required to convert the retail store to a restaurant pursuant to § 70-208 of the Town Code and applicable case law. 156295.1 5 Contrary to Colin Realty’s contention, the Town Code does not treat a nonconforming building as a nonconforming use. The definition of “NONCONFORMING BUILDING OR USE” contained in § 70-231 of the Town Code, which Colin Realty relies for it contention, correctly defines a nonconforming building or use as one that does not conform to the regulations of the district. This definition does not alter established principals of zoning law that a nonconforming use is one that does not comply with use restrictions and a nonconforming building is one that does not comply with area restrictions. 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02. The fact that § 70-208 of the Town Code, which regulates both nonconforming uses and nonconforming buildings, is entitled “Nonconforming uses.” lends no support to Colin Realty’s argument. As noted in 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02, the term “nonconforming use” is often used to include a nonconforming building, but that does blur the distinction. In 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02 it is stated, “[i]t is recognized that the distinction between a nonconforming building or structure and a nonconforming use of land is genuine and may be critical. But both are regarded herein as nonconforming uses and they will be treated as one except in those instances where they are distinguished by statutes, ordinances, or the courts.” 156295.1 6 The courts recognize the distinction between a nonconforming use and a nonconforming building. See Dawson v. Zoning Board of Appeals of Town of Southhold, supra. Like the Code of the Town of Southhold, Town Code § 70-208 recognizes the distinction between a nonconforming use and a nonconforming building. Subsections C, D and E contain restrictions applicable to “nonconforming uses”. Subsection F contains restrictions applicable to “nonconforming buildings”. The Applicants sought and were granted a variance of Town Code § 70-208.F, that regulates nonconforming buildings. In the within matter, the subject building is nonconforming with respect to off- street parking and loading zone requirements. Since the use as a restaurant is not a prohibited use, these are area variances. 156295.1 7 POINT I THE ZBA PROPERLY TREATED THE PARKING AND LOADING ZONE VARIANCES AS AREA VARIANCES The Appellate Division held the ZBA properly determined the relief from parking and loading zone requirements were to be treated as applications for area variances under the scheme of the Town Code. The Court’s holding in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972) does not warrant a different result. A leading commentator has opined that the “ambiguous rationale of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972), that a reduction of a parking requirement which is dependent on the use of property, as opposed to the area of the usage, requires a use variance”, has resulted in confusion in classifying a parking variance as a use or area variance. See, Rice, Practice Commentaries, McKinney’s Town Law § 267-b, main volume p.295. In Off Shore Rest. the Court stated: To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adopt rules applicable to use or area variances, whichever best meets the problem. Illustratively, a parking restriction may be required because the building lots are too small, or on the other hand, because the use of the building regardless of lot size will cause many vehicles to be brought to the site. Most often, the parking restriction will relate to uses, and the ordinance 156295.1 8 by requiring off-street parking for certain uses by a stated formula will so indicate, as in this case. In others, the parking restriction may be related by the ordinance to the area. That was the situation in Matter of Overhill Bldg. Co. v. Delany (28 N.Y.2d at pp. 453–454, 322 N.Y.S.2d, at pp. 698–699, 271 N.E.2d, at p. 539) where the requirement for off-street parking was defined in terms of the office space available in the subject building. 30 N.Y.2d at 169. The majority opinion in Off Shore Rest. did not state it was abrogating its holding in Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 (1971). However, Justice Scileppi, in his dissenting opinion stated, “…the majority seems to retract from the view espoused in Matter of Overhill Bldg. Co. v. Delany (28 N Y 2d 449, 453- 454) where we recently postulated that off-street parking requirements take on the semblance of limitations on area and as such must be resolved according to that body of law.” 30 N.Y.2d at 170. Justice Scileppi wrote that in Overhill, the decision of the Court [written by Justice Scileppi] was premised on the nature of the zoning restriction, as opposed to the reason for the restriction, which was the premise for the majority holding in Off Shore Rest. Justice Scileppi stated: Inasmuch as an off-street parking requirement limits the quantum of space that an owner of property may properly use, it restricts area in the same manner as minimum lot size or set-back requirements and it was for that reason that the controversy in Overhill was adjudicated under the principles enunciated in Matter of Fulling v. Palumbo (21 N Y 2d 30). 156295.1 9 Thus, it is my view that because of Overhill, use variance rules do not obtain here.2 30 N.Y.2d at 171. The Court’s holdings in Off Shore Rest. is distinguishable from the Court’s holding in Overhill. As explained by the Overhill court: In this appeal, appellants have advanced the argument that the courts below have erroneously treated this litigation as a matter involving an area variance. They would have us adopt the view that respondent sought a use variance and contend that since the law does not generally sanction enlargements of nonconforming uses (see, e.g., Matter of Otto v. Steinhilber, 282 N. Y. 71), no variance should be granted. The Overhill court rejected the appellants’ argument that the applicant was seeking to enlarge a nonconforming use, since the applicant was seeking to convert garage space to office space, which was a permitted use. The Court stated: Thus, where, as here, property is located in a business zone, and there is no doubt that the use intended (i.e., additional office space) is within the allowed uses for that district, a requested variance is an area variance. Stated differently, respondent's proposed alteration would conform to approved uses for Business A zones. However, since it is governed by an off-street parking requirement, a limitation on floor area, cases such as Matter of Otto v. Steinhilber (282 N. Y. 71, supra.), are inapposite and the instant controversy must be resolved according to the law of area variances. 28 N.Y.2d 449, at 453-454. In Off Shore Rest., the applicant sought to convert a delicatessen to a cocktail lounge, also both permitted uses in the applicable business zone of the City of Long 2 The standards for area variances established in Matter of Fulling v. Palumbo have been replaced by the “balancing test” codified in Town Law §267-b(3) and Village Law, §7-712-b(3), as amended, effective July 1, 1992 and General City Law §81-b, effective July 1, 1994. 156295.1 10 Beach. However, under the City of Long Beach ordinance, no building or premises could be changed to a different use, until a Use Permit was issued by the Commissioner of Buildings, based on a finding of conformity with all of the provisions of the zoning ordinance, including off-street parking. Thus, unlike the Overhill court, the Off Shore Rest. court treated the parking variance application as an application to enlarge a prior nonconforming use and applied the use variance criteria. The Off Shore Rest. court recognized that, “[t]he zoning ordinance determines what changes are permitted in pre-existing, nonconforming uses” (30 N.Y.2d at 163), and that “. . . the courts do not hesitate to give effect to restrictions on nonconforming uses (e.g., City of Buffalo v. Roadway Tr. Co., 303 N.Y., at pp.461-462, 104 N.E. 2d, at p.99)” (30 N.Y.2d at164), “ . . . . . because these restrictions flow from a strong policy favoring the eventual elimination of nonconforming uses (see Matter of Harbison v. City of Buffalo, 4 N Y 2d, at pp. 559-560; Matter of Crossroads Recreation v. Broz, 4 N Y 2d, at p 42; Matter of Pisicchio v. Board of Appeals, Freeport, supra.; 1 Anderson, American Law of Zoning, §§ 6.07, 6.09; 58 Am. Jur., Zoning, § 155).” 30 N.Y2d at 164. The Off Shore Rest. court, determining that the reason for the parking restriction under the scheme of the City of Long Beach ordinance was to eliminate prior non- conforming uses, applied the criteria for use variances, stating: 156295.1 11 The Overhill court, looking to Matter of Fulling v. Palumbo (21 N Y 2d 30), with some qualifications it is true, applied rules applicable to area variances but also spoke of the test as one which was not met unless the owner was left with no reasonable use for his property. In this case, applying the rules applicable to use variances and in accord with the analysis in the Overhill case, it is material that the petitioner has made no showing that the property cannot yield a reasonable return without increasing the burden on street parking in violation of section 9-113.1 of the zoning ordinance. Indeed, there is no indication that the present use of the property as a delicatessen is not profitable. No hardship is shown except that a desired expansion is not available, and that is exactly what the policy in terminating nonconforming uses is designed to control. 30 N.Y.2d at 169-170. In Syracuse Aggregate Corporation v. Weise, 51 N.Y.2d 278 (1980), wherein the issue was the expansion of a prior nonconforming use, this Court cited Off Shore Rest., stating: By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it (see, e.g., Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228), quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. 51 N.Y.2d at 285. Off Shore Rest. has also been consistently cited by the various departments of the Appellate Division in cases involving a municipality’s right to restrict a landowner’s ability to expand or intensify a prior nonconforming use. See, Nadell v. Horsley, 264 A.D.2d 422 (2d Dep’t 1999), Incorporated Village of Laurel Hollow, 247 A.D.2d 585 (2d Dep’t 1998), Bohner v. Casatelli, 38 A.D.3d 1230 (4th Dep’t 2007), Village of Valatie v. Smith, 190 A.D.2d 17 (3rd Dep’t 1993). 156295.1 12 The confusion generated by the decision in Off Shore Rest. stems from the Court’s statement that its decision was “in accord with the analysis in the Overhill case.” Id. The analysis in the Overhill case clearly reached the conclusion that a parking variance should be considered an area variance, when the use intended is within the allowed uses for that zoning district. The Overhill court’s discussion of the test as one which was not met unless the owner was left with no reasonable use for his property, was in accord with the criteria for an area variances enunciated in Matter of Fulling v. Palumbo supra, and not the test of economic hardship for a use variance. The Overhill court stated: In Matter of Fulling v. Palumbo (21 N Y 2d 30, 33, supra.;), this court adopted the rule that “where the property owner will suffer significant economic injury by the application of an area standard ordinance, that standard can be justified only by a showing that the public health, safety and welfare will be served by upholding the application of the standard and denying the variance.” Thus, where property owners will suffer severe financial loss by the operation of the ordinance, they are entitled to a variance unless the zoning authorities can point to some legitimate purpose which would sustain the ordinance (id., at pp. 34-35; see Rowe St. Assoc. v. Town of Oyster Bay, 27 N Y 2d 973). It is only when such a showing is made by the public authorities, that the property owner, in order to be successful, “must demonstrate that the hardship caused is such as to deprive him of any use of the property to which it is reasonably adapted, and that, as a result, the ordinance amounts to a taking of his property” (Matter of Fulling v. Palumbo, 21 N Y 2d 30, 35, supra.;). It appears, however, that although financial hardship may satisfy the property owner's initial burden, once the zoning authorities show that the ordinance promotes public health, safety or welfare, mere financial loss is insufficient to require a variance (Rowe St. Assoc. v. 156295.1 13 Town of Oyster Bay, 27 N Y 2d 973, supra.; Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N Y 2d 258; Contino v. Incorporated Vil. of Hempstead, 27 N Y 2d 701, revg. on dissenting opn. at App. Div. 33 A D 2d 1043). 28 N.Y.2d at 454. This confusion has been put to rest by legislation adopted subsequent to the Court’s holdings in Off Shore Rest. and Overhill, defining a use variance and an area variance, and establishing the criteria applicable to both. Prior to 1956, the courts of this State routinely addressed variances without distinguishing between use and area variances. The courts strictly limited the power to vary zoning regulations, allowing a variance only when the literal enforcement of a regulation would result in “practical difficulties or unnecessary hardship.” Anderson, New York Zoning Law and Practice § 27:07-08 (4th ed 2002). This Court changed that approach in 1956 in Village of Bronxville v. Francis, 1 A.D.2d 236 (2d Dep't 1956), aff'd 1 N.Y.2d 839 (1956); stating: When the variance is one of area only, there is no change in the character of the zoned district and the considerations present in the Otto case are not present. A change of area may be granted on the ground of practical difficulties alone, without considering whether or not there is an unnecessary hardship.1 A.D.2d at 909. However, until the adoption of legislation in 1992, there was no statutory definition of a use variance and an area variance. Case law generally held that “[a]n ‘area’ variance is one which does not involve a use which is prohibited by the zoning ordinance, while a ‘use’ variance is one which permits the use of land which is 156295.1 14 proscribed.” Consolidated Edison Company of New York v. Hoffman, 43 N.Y.2d 598, 606-607 (1978). (See also, Sasso v. Osgood, 86 N.Y.2d 374 (1995) – “Although the former statute did not distinguish between ‘use’ and ‘area’ variances or assign the specific tests to them, court decisions generally applied the ‘unnecessary hardship’ test in use variance cases, while requiring a demonstration of ‘practical difficulties’ in area variance cases (citations omitted).” 86 N.Y.2d at 380. Amendments to Town Law §267, Village Law, §7-712 and General City Law §81-b This classification has since been clarified and codified in Town Law §267, Village Law, §7-712, as amended, effective July 1, 1992 and General City Law §81-b, effective July 1, 1994, which defines these terms as follows: 1. Definitions. As used in this section: (a) “Use variance” shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations. (b) “area variance” shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.” Under these definitions, the statement by the Off Shore Rest. court that “off- street parking restrictions do not fall easily into either classification” (30 N.Y.2d at 156295.1 15 169), is no longer the case. The requirement for off-street parking is a physical requirement of zoning regulations. Regardless of the method of computation of the number of required parking spaces, if the underlying use of the property is for a purpose allowed by the applicable zoning regulations, a variance from parking requirements should be treated as an area variance. See, Rice, Practice Commentaries, McKinney’s Town Law § 267-b, main volume p.295. Colin Realty’s contention that a parking regulation that is not premised on the size of the structure, but rather, on the intensity of the use, is imposing a restriction pertaining to use and not area, ignores the fact that all parking restrictions are premised on the intensity of the use. Whatever formula is used, the number of people that are likely to use a building dictate the number of parking spaces required. All area restrictions, such as, lot area, setbacks and height requirements, regulate how premises can be used. Parking and loading zone requirements are no different. Colin Realty’s reliance on Matter of Plandome Donuts v. Mammima, 262 A.D.2d 491 (2d Dep’t 1999) is misplaced. The language in that decision quoted by Colin Realty concerned a condition imposed by the Board of Zoning Appeals of the Town of North Hempstead in connection with the granting of a conditional use permit and parking variance. This court upheld the condition because it related to the use of the land, rather than the user. 156295.1 16 Even if an off-street parking requirement is construed to be a density regulation, the Court has recognized, post 1992, that variances of density regulations are area variances. In Khan v. Zoning Board of Appeals of Village of Irvington, 87 N.Y.2d 344 (1996), the Court, citing Matter of Overhill Bldg. Co. v Delany, supra, stated: “Generally speaking, an area variance involves no change in the essential character of the zoned district” (Matter of Wilcox v Zoning Bd. of Appeals, 17 NY2d 249, 254; see also, Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449), nor does it seek to change the essential use of the land (Matter of National Merritt v Weist, 41 NY2d 438, 441). Thus, an area variance involves “matters such as setback lines, frontage requirements, lot-size restrictions, density regulations, and yard requirements” (2 Anderson, op. cit., § 23.06). 87 N.Y.2d at 351. A density regulation clearly restricts the intensity of the use of land, but yet, is an area variance, since it is regulating a permitted use. The Off Shore Rest. court generated additional confusion in its statement that, “parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction (emphasis added).” 30 N.Y.2d at 169. However, parking requirements are commonly tied to both a use and area restriction. This is the case under the Town Code, where an area formula is used, which formula varies dependent on the use. Section 70-103 of the Town Code lists numerous different classes of uses and then specifies the required parking for that use, based upon the area of the use. For example, medical offices, general offices and retail stores are permitted uses in a 156295.1 17 Business A zone and restaurants are permitted as conditional uses. Pursuant to §70- 103, medical offices must provide one parking space for each 150 square feet of floor area in excess of 1,000 square feet; general offices must provide one parking space for each 200 square feet of floor area in excess of 1,000 square feet; retail stores must provide one parking space for each 300 square feet of floor area in excess of 1,000 square feet; and restaurants must provide one parking space for each four seats, plus one parking space for each employee (R.248-249). This is also the case under the Code of the City of Albany, where an area formula is used, which formula varies dependent on the use. For example, pursuant to §375-185 of Article XIX of the Code of the City of Albany3, general offices must provide one parking space per 250 sf of floor area; shopping centers must provide one parking space per 200 sf of floor space; a sit down restaurant mist provide 1 parking space per 50 sf of dining room floor area; a theater must provide one parking space per 3 seats; and schools must provide parking based upon the number of faculty members, staff members and students. The fact that the formula for required off-street parking and loading zones in the Town Code (as well as the Code of the City of Albany), is determined by both use and area of the use, does not change the fact that the requirement for off-street parking and 3 Article XIX of the Code of the City of Albany is set forth in the Appendix. 156295.1 18 loading areas is a dimensional or physical requirement. It is common for dimensional or physical requirements to vary depending on the use. For example, under Article VI of Chapter 70 of the Town Code4, both single- family dwellings and two-family dwellings are permitted uses in a Residence C District. However, the requirements for lot area (§70-47), lot width (§70-47.1) and side yard setbacks (§70-51) are different for each use. The fact that these dimensional requirements differ for the use of the land either as a single-family dwelling or a two- family dwelling, does not change the fact that they are dimensional requirements, a variance of which is an area variance. The parking requirements for restaurants, similar to those for offices and retail stores, are based upon the area of the building. The estimated number of people that will occupy the area of the restaurant, for whom parking will be required, is based upon the number of seats and employees. In this regard, the Town Code is no different than the codes involved in Matter of Il Classico Rest. v Colin, 254 A.D.2d 418 (2d Dep’t 1998) and Merrick Gables Assn. v Fields, 143 A.D.2d 117 (2d Dep’t,1988), lv denied, 73 N.Y.2d 707 (1989), which cases Colin Realty states are reconcilable with Off Shore Rest. In Matter of Il Classico Rest. v Colin, supra, the zoning code required one off- street parking space for every fifty square feet of floor area devoted to patron use. 4 Article VI of the Code of the Town of North Hempstead is set forth in the Appendix. 156295.1 19 Rather than estimating the number of people that will occupy the area of the restaurant, for whom parking will be required, by the number of seats provided for patrons, the zoning code bases the estimate on the floor area devoted to patron use. This is a distinction without a difference. In Merrick Gables Association v. Fields, 143 A.D.2d 117 (2d Dep’t 1988), lv denied, 73 N.Y.2d 707 (1989), the Second Department held that under the scheme of the Building Zone Ordinance of the Town of Hempstead, variances from parking requirements were area variances. Like the Town of North Hempstead, required parking under the Building Zone Ordinance of the Town of Hempstead is dependent on both use and area. Section 319 of the Building Zone Ordinance of the Town of Hempstead5, provides that “[n]o person shall maintain any of the following uses in any district unless he shall provide off-street automobile spaces … in the amounts or proportions as follows…”. Section 319 lists numerous different classes of uses and then specifies the required parking for that use, based upon the area of the use. For example: retail stores must provide one parking space for each 200 square feet of floor area; industrial plants must provide one parking space for each 2 ½ employees or for each 800 square feet of total floor area, whichever is greater; and restaurants must provide one parking 5 Section 319 of the Building Zone Ordinance of the Town of Hempstead is set forth in the Appendix. 156295.1 20 space for each three seats or each 100 square feet of total floor area, whichever is greater, plus one parking space for each four employees. The fact that the Building Zone Ordinance of the Town of Hempstead states that a parking variance is an area variance is of no moment. In Halperin v. City of New Rochelle, 24 A.D.3d 768 (2d Dep’t 2005), lv denied, 7 N.Y.3d 708 (2006), the Second Department, in affirming the grant of parking variances as area variances, held6: Because the existing and proposed uses of the subject property were uses permitted as of right in the relevant zoning district, the Zoning Board properly applied the statutory criteria for area variances (see General City Law § 81-b [4] [b]) to the applicant's request for a variance from off-street parking requirements (see Matter of Marro v Zoning Bd. of Appeals of City of Long Beach, 287 AD2d 506 [2001]; Matter of Il Classico Rest. v Colin, 254 AD2d 418 [1998]; Sanzone v City of Rome, 170 AD2d 977 [1991]; Merrick Gables Assn. v Fields, 143 AD2d 117, 121 [1988]; cf. Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160, 169 [1972]; Matter of Sunrise Plaza Assoc. v Town Bd. of Town of Babylon, 250 AD2d 690, 692-693 [1998]). Since it was proper for the Zoning Board to do so without relying on the provision of the city zoning ordinance defining all variances from off-street parking requirements as area variances (see City of New Rochelle Zoning Ordinance § 331-4), we need not determine the validity of that provision, and that portion of this matter which is for a judgment declaring that the City Council of the City of New Rochelle acted beyond its authority in enacting the provision is academic. 24 A.D.2d at 773-774. 6 While Colin Realty contends this analysis by the Second Department is flawed, this Court denied leave to appeal. 156295.1 21 Furthermore, the Town Code authorizes the ZBA to interpret its requirements. 1215 Northern Boulevard, LLC. v. Board of Zoning Appeals of the Town of North Hempstead, 63 A.D. 3d 1071 (2d Dep’t 2009). The ZBA interprets parking variances under the Town Code as area variances. “A zoning board’s rational construction of the code provisions it is charged with administering is entitled to judicial deference.” Evans v. Zoning Board of Appeals of the Village of Buchanan, 15 Misc.3d 1102(A) (Sup. Ct., Westchester Co. 2007) (Lippman, J., citing this Court’s holding in Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 (1997)). Where “…the zoning board’s construction of its code provisions comports with reason and logic, and finds a rational basis in the record, it is entitled to judicial deference”. Winston v. Town of Bedford, Zoning Board of Appeals, 14 Misc.3d 1235(A) (Sup. Ct., Westchester Co. 2007) (Lippman, J., citing KMO-361Realty Assoc. v. Davies, 204 A.D.2d 547 (2d Dep’t 1994), lv denied 84 N.Y.2d 811 (1994)). The requirement for loading zones pursuant to the Town Code is also dependent on both use and area. The Town Code specifies in Section 70-103.F that loading zones are required for premises used for a business purpose. The number of loading zones is dependant on the area of the building (R.250). 156295.1 22 Rationale for Treating Off-street Parking and Loading Zone Requirements as Area Variances The Off Shore Rest. court stated that. “…in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adopt rules applicable to use or area variances, whichever best meets the problem” 30 N.Y.2d, at 169. Unless the reason for the restriction is to eliminate a nonconforming use, applying the rules for area variances best meets the problem. The rationale for treating a variance of off-street parking requirements for a permitted use as an area variance was explained in In Association For Preservation of 1700 Block of N St., N.W. v. District of Columbia Bd. Of Zoning Adjustment, 384 A.2d 674 (D.C. 1978), wherein the court stated: The distinction between a use variance and an area variance is that the former 'permits a use other than that prescribed by zoning ordinance' whereas an "area variance has no relation to change of use. It is primarily a grant to erect, alter or use a structure for a permitted use in a manner other than that prescribed by the ordinance.' Since we have previously decided that the YMCA is a private club within the meaning of the applicable zoning regulation, and given that a private club is a permitted use in the relevant area here, it is apparent that the YMCA is seeking to erect its proposed structure in a manner other than that prescribed by ordinance i.e., without providing the required number of off-street parking spaces. The principal rationale for the different standard applicable to the two variances is that an area variance does not affect the use of the land and does not threaten the neighborhood or adjacent landowners with the maintenance of an incompatible use of the subject property. 384 A.2d at 677. The same rational applies under New York Law. 156295.1 23 This Court has consistently recognized that an “applicant for a use variance bears a heavier burden of proof than one who desires relaxation of an area limitation.” Village of Fayetteville v. Jarrold, 53 N.Y.2d 254, 257 (1981). Since a prohibited use, if permitted, will result in a use of the land in a manner inconsistent with the basic character of the zone, a heavier burden is placed on the applicant. Matter of Consolidated Edison Co. v. Hoffman, supra. A three-pronged test of “unnecessary hardship” was articulated in Otto v. Steinhilber, 282 N.Y. 71 (1939) and subsequently codified in Town Law '267-b(2), Village Law, '7-712-b(2)and General City Law '81-b(3), with the added requirement that the applicant prove that the hardship is not self-created. Sasso v. Osgood, supra. The standards for a use variance codified in Town Law '267-b(2), Village Law, '7-712-b(2)and General City Law '81-b(3), provide: (b) No such variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of 156295.1 24 the neighborhood; and (4) that the alleged hardship has not been self-created. A variance of the number of off-street parking spaces or loading zones required does not change the character of the zoned district and, as stated in Village of Bronxville v. Francis, supra, the considerations present in Otto v. Steinhilber, supra, as presently codified, are not present. A parking or loading zone variance will not result in a use of the land in a manner inconsistent with the basic character of the zone, which is the reason for imposing a heavier burden for use variances. Matter of Consolidated Edison Co. v. Hoffman, supra. An off-street parking or loading zone variance has the potential to have a detrimental effect on adjacent properties, as does a side yard setback variance. This is one of the statutory factors to be considered in application of the balancing test for area variances. The application of the use variance criteria to a parking or loading zone variance would render it impossible for a zoning board to grant such relief in a countless number of cases. It is respectfully requested that the Court take judicial notice of the fact that throughout this State there are numerous properties in older downtown areas with little or no off-street parking, now required in most municipalities. The Court need look no further than the downtown area of the City of Albany. Pursuant to §375-173 of the Code of the City of Albany, any existing use that does not meet the minimum off-street parking requirements, must provide off-street 156295.1 25 parking “when the intensity of the use is increased through the addition of dwelling units, gross floor area, additional employees, seating capacity or modification of use.”7 Pursuant to Colin Realty’s contention, since these parking requirements relate to the intensity of the use, they constitute use restrictions, the variance of which is a use variance. These property owners, like the Applicant, rely on street parking and municipal parking lots for customer and employee parking. The hardship relating to these properties is not unique, but rather, applies to a substantial portion of the district or neighborhood Thus, the owner of property with insufficient off-street parking would not be permitted to increase the size of its building, or change its use to another permitted use requiring more parking, unless the owner could prove unnecessary hardship, notwithstanding the construction of a new municipal parking facility across the street. Moreover, since ownership of these properties is routinely transferred subject to these conditions, the owner’s hardship under the use variance criteria is self-created. Self-created hardship precludes the granting of a use variance. Town Law '267-b(2), Village Law, '7-712-b(2) and General City Law '81-b(3). 7 An exception is made for properties in the C-3 District. 156295.1 26 POINT II THE ZBA’S DECISION GRANTING THE AREA VARIANCES FOR PARKING AND LOADING ZONE IS SUPPORTED BY THE RECORD It is a firmly established principle that a zoning board has discretion in considering applications for relief and that the judicial function is a limited one. Courts may only set aside a board’s determination where the record reveals illegality, arbitrariness or abuse of discretion. Conley v. Town of Brookhaven Board of Appeals, 40 N.Y.2d 309 (1976); Matter of Ifrah v. Utschig, 98 N.Y.2d 304 (2002), Pecoraro v. Board of Appeals of Town of North Hempstead, 2 N.Y.3d 608 (2004). If there is substantial evidence in the record to substantiate the determination of a zoning board, a court may not set it aside. Matter of Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, 98 N.Y.2d 190 (2002); Matter of P.M.S. Assets, Ltd. v. Zoning Board of Appeals of Pleasantville, 98 N.Y.2d 683 (2002); Matter of Ifrah v. Utschig, supra. When reviewing the determinations of a zoning board, courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the board's determination. A determination of a zoning board must be confirmed if it was rational and not arbitrary and capricious. Halperin v. City of New Rochelle, supra. “Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record (see Matter of Toys “R” Us v Silva, 89 NY2d 411, 423 [1996]).” Matter of 156295.1 27 Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, supra at 196. With respect to the question of the effect of variances on the surrounding community, this Court in Cowan v. Kearn, 41 N.Y.2d 591 (1977) stated: Local officials generally possess the familiarity with the local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and responsible officials to determine where the public interest in zoning lies (citations omitted). Judicial review of the local decisions is limited not only in our court, but in all courts. Where there is a rational basis for the local decision, that decision should be sustained. It matters not whether in close cases, the court would have or should have, decided the matter differently. Judicial responsibility is to review decisions, but not absent proof of arbitrary or unreasonable action to make them ... 41 N.Y.2d at p. 599. Zoning boards are not made up of theoreticians or doctrinaire specialists, but of representative citizens doing their best to make accommodations between conflicting community pressures. Matter of Von Kohorn v. Morrell, 9 N.Y.2d 27 (1961). As stated in Mobil Oil Corp. v. Oaks, 55 A.D.2d 809 (4th Dep't 1976): Courts will not generally interfere with the Town Board’s determination in a zoning dispute, since these matters are best “resolved by the ‘common-sense judgments’ of ‘representative’ citizens doing their best to make accommodations between conflicting community pressures.” (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 407, 409.) This rationale is particularly apt in a case such as this where to interfere would be to ignore the important ingredient of flexibility which the Town Board plainly reserved to itself when it enacted the Henrietta Zoning Ordinance (see, Todd Mart v. Town of Webster, 49 A.D.2d 12, 19, 370 N.Y.S.2d 683). 55 A.D.2d at 809. 156295.1 28 This Court “…has continued to articulate the CPLR 7803(3) standard of review in zoning cases, emphasizing the deference that must be afforded to local officials in making judgments concerning land use in their community.” Halperin v. City of New Rochelle, supra at 771. A zoning board is not bound by formal rules of evidence to support its discretion. Kenyon v. Quinones, 43 A.D.2d 125 (4th Dep't 1973). Standards for Area Variances The standards for an area variance are set forth by statute and found in Town Law, § 267-b(3). Specifically, Town Law § 267-b(3) provides that: (b) In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to the nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. Pursuant to Town Law § 267-b(3)(b), a board of zoning appeals is required to weigh the benefits to the applicant from the proposed variance against the detriment to 156295.1 29 the health, safety and welfare of the community if the variance is granted. Sasso v. Osgood, supra. Prior case law interpreting the prior “practical difficulty” standard for area variances is not controlling or applicable to the “balancing test” standard prescribed by Town Law § 267-b(3)(b). In Sasso, the Court held: We conclude Town Law § 267-b(3)(b) requires the Zoning Board 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 area variance is granted, and that an applicant need not show “practical difficulties” as that test was formerly applied. 86 N.Y.2d at 384. The record reflects that the ZBA properly weighed the benefit to the Applicants from the proposed variances against the detriment to the health, safety and welfare of the community if the variances are granted, by considering the factors set forth in Town Law § 267-b(3)(b). An analysis of the subject variances pursuant to the criteria set forth in Town Law § 267-b(3)(b) and controlling case law, demonstrates that the benefit to the Applicants outweighs any detriment to the health, safety and welfare of the neighborhood or community. Whether an Undesirable Change Will be Produced in the Neighborhood or Detriment to Nearby Properties Will be Created by the Granting of the Area Variances Pursuant to the Town Code, the proposed restaurant requires 24 parking spaces and none are provided (R.75). In granting the variance, the ZBA determined that the 156295.1 30 variance will not produce an undesirable change in the neighborhood or a detriment to nearby properties, since there is ample parking in two municipal lots located to the rear of the subject premises and along the street. In making this determination, the ZBA relied upon the parking analysis report submitted by the Applicants’ traffic expert (R.79). The Applicants’ traffic expert, Harold Lutz, of VHB Engineering, testified that the parking study he conducted revealed that during the evening dinner hours there is a minimum of between 98 and 103 available parking spaces in the municipal lots (R.190). Mr. Lutz testified that during the day when parking demand was at its highest for the area, 32 parking spaces were still available in the area. As found by the ZBA (R.79), Colin Realty’s traffic expert, Norman Gerber, agreed that there was available parking in the municipal parking lots (R.205). Mr. Lutz also testified that during the day, most of the business for a restaurant is walk-in customers (R188). This finding was corroborated by the ZBA’s own personal observations. The ZBA stated in its decision that, “(b)ased on the Board’s experience with similar appeals, and its own personal observation and experience, those that work in buildings located on or in the immediate vicinity of Plandome Road will walk to their destination during peak midday hours” (R.80). Colin Realty’s traffic expert did not disagree. He testified that “some will walk, some will take a car” (R.212). When asked by a ZBA member, “[w]hat percentage 156295.1 31 do you think will walk?”, Mr. Gerber responded, “I haven’t the foggiest idea…” (R.212-213). Colin Realty erroneously alleges that the ZBA failed to take into account the Colin Realty’s lawsuit commenced against the Applicants to enjoin customers and employees from traversing Colin Realty’s property to access the paved area and doors in the rear of the building. The record reflects that this was discussed and considered by the ZBA. Although the ZBA stated in its Decision that “there is a small lot located directly behind the subject storefront that is intended for employee parking (R.76, emphasis added), these spaces were not included by the Applicants or the Applicants' traffic expert as available spaces. At the public hearing, the Applicants’ attorney stated, “we have not counted those cars back there as part of our off-street parking, because it is not striped and does not meet Town Code requirements, so although there is a small area in the back, for all intents and purposes, this building has no compliant off-street parking” (R.185). The Applicants’ attorney further expressly stated, “We are relying on the municipal parking lot and the available street parking” (R.237). Colin Realty erroneously alleges that the ZBA argued in its Brief before the Appellate Division that Applicants’ employees and customers can park in the private parking lots of adjoining businesses (citing page 9 of the ZBA’s Brief ). At the cited 156295.1 32 page of the ZBA Brief, the ZBA was merely describing the parking facilities in the general area. In response to Colin Realty’s allegation at the hearing that the Applicants have no right to traverse its property to gain access to the rear door, the Applicants’ attorney stated, “We don’t need the rear entrance for this restaurant….” (R.237); “If it is determined that we don’t have the right to walk across his lot, we won’t walk across his lot. As Mr. Mammina [Chairman of the ZBA] said, you walk around, and if it’s too far to walk, you don’t walk” (R.238). In response to a ZBA member’s question regarding garbage pick-up and deliveries if the Applicants are denied access to the rear of the Premises, the Applicants’ attorney stated that garbage pick-up and deliveries can be accomplished via the front of the premises, as with other businesses on Plandome Road (R.238-239). In its Decision, it is clear that the ZBA considered Colin Realty’s threat to deny access to the rear of the premises across its property. The ZBA stated: … neighboring property owners argued that the proposed variances will cause a detriment to nearby properties because it will increase the likelihood that patrons will park in the municipal parking lots and traverse over their property to reach the restaurant. There are ample remedies available in law or otherwise to address this problem, in the event this occurs. For example, they may post “no-trespassing” signs, monitor their property, erect fencing and/or institute legal proceedings (R.79). 156295.1 33 Colin Realty also erroneously alleges that the ZBA failed to take into account the distances patrons would have to walk if access is denied to the rear of the premises. In his March 29, 2011 report, Mr. Gerber stated that if access is denied to the rear door, a patron would have to walk 800 feet from the municipal lot to the front door. Mr. Gerber opined that this was not conducive to customers (R.326). The Applicant’s traffic expert disagreed. He stated in his report dated April 5, 2011 that “[a] walking distance of 800 feet is not uncommon in a downtown area in which Municipal parking is provided. Quite often the distance can be greater” (R.329). The ZBA agreed with the Applicant’s traffic expert (R.80). “That conflicting inferences may have been drawn from this evidence is of no moment. “[T]he duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists” (Matter of Stork Rest. v Boland, 282 NY 256, 267). Matter of Toys “R” Us v Silva, 89 N.Y.2d at 424. Colin Realty's contention that the ZBA failed to consider the existence of vacant stores, which, when filled, will overwhelm available parking facilities, was not raised by Colin Realty at the public hearing and no such evidence was presented. 156295.1 34 Regarding the variance for the lack of a loading zone, the ZBA found that, “[l]oading and unloading of trucks is permitted along Plandome Road. Deliveries can be accommodated through the front of the building from Plandome Road” (R.77). Whether the Benefit Sought by the Applicant Can be Achieved by Some Method Feasible for the Applicant to Pursue Other than an Area Variance The ZBA properly found that the benefit sought by the Applicants cannot be achieved by some other feasible method, stating, “[t]he subject storefront is located in a pre-existing non-conforming building which was originally developed with no parking. A parking variance is necessary to operate any business at the premises” (R.81). Colin Realty has not disputed this determination. Whether the Requested Area Variance is Substantial Colin Realty’s reliance on the percentage deviation is misplaced. Percentage deviation, in and of itself, is not a fair indicator of the substantiality of a requested variance. Instead, the totality of the relevant facts and a common sense appraisal of the circumstances is a far more relevant gauge of the substantiality of the relief requested. The deviation only becomes relevant if it relates to an adverse effect in the neighborhood. McKinney’s Town Law § 267-b, Practice Commentaries by Terry Rice, main volume at page 334. The ZBA found: 156295.1 35 [w]hile the variance for is mathematically significant (a 100-percent deviation), the substantiality of a variance cannot be viewed solely by a comparison of the percentage deviation. Instead, the Board must consider the impact it has on the community. The parking analysis submitted by VHB indicates that there will be ample, if not excess, parking during hours of operation (R.81). In Matter of Lim-Kim v. Zoning Board of Appeals of the Village of Irvington, 185 A.D.2d 346 (2d Dep't 1992), the court reversed the zoning board of appeals’ denial of an area variance stating, “[i]n this case, although the variances sought by the petitioner are fairly substantial, they are unlikely to have an adverse impact on the surrounding neighborhood.” Similarly, in Padwee v. Bronnes, 242 A.D.2d 334 (2d Dep't 1997), the court reversed the board of zoning appeals denial of an area variance, holding that although the board properly found the requested variance to be substantial, there was insufficient evidence in the record to support the finding that the requested variance would produce an undesirable change in the character of the neighborhood and virtually no evidence in the record with respect to any adverse effect or impact on the physical or environmental conditions in the neighborhood. Whether the Proposed Variance Will Have an Adverse Effect or Impact on the Physical or Environmental Conditions in the Neighborhood District The ZBA determined that the variance application is a Type II action under SEQRA, which is deemed not to have a significant impact on the environment. 6 NYCRR § 617.5. 156295.1 36 Furthermore, Colin Realty did not offer any credible evidence that the granting of the variances will have an adverse effect or impact on the physical or environmental conditions in the area. Colin Realty has not disputed this determination. Whether the Alleged Difficulty was Self-Created The ZBA properly found that Applicants’ difficulty was not self-created (R.81). “Difficulty” is self-created, as a matter of law, for zoning purposes, when an applicant for a variance acquired the property subject to the restriction from which relief is sought.” Padwee v. Bronnes, supra. The ZBA found that the Applicants purchased the subject premises in 1938 and that the building was constructed in 1939, prior to the enactment of the code restrictions on parking and loading zones. Colin Realty has not disputed this determination. Furthermore, Town Law § 267-b(3)(b)(5) specifically states that a self-created difficulty “shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.” Case law has held that standing alone, self-created practical difficulty is not a sufficient basis to deny an area variance. Matter of Townwide Properties, Inc. v. Zoning Board of Appeals of the Town of Huntington, 143 A.D.2d 757 (2d Dep't 1988). 156295.1 37 POINT III THE ZBA PROPERLY REFUSED TO CONSIDER THE OBJECTIONS BY LOCAL PROPERTY OWNERS AND BUSINESSES SUBMITTED IN A PETITION TO THE ZBA SUBSEQUENT TO THE CLOSING OF THE PUBLIC HEARING Subsequent to the closing of the public hearing, Colin Realty submitted a “Community Petition” signed by 32 property owners and businesses objecting to the granting of the parking variance (R. 59-67). The ZBA properly refused to consider the Community Petition since it was submitted after the close of the public hearing and the Applicants did not have the opportunity to rebut it. Matter of Hampshire Mgt. Co. v. Nadel, 241 A.D.2d 496 (2d Dep’t 1997), Matter of Stein v. Board of Appeals of Town of Islip, 100 A.D.2d 590 (2d Dep’t 1984). Contrary to Colin Realty’s allegation, the hearing record was kept open for the limited purpose of the submission of reply traffic reports by Colin Realty and the Applicant (R. 245-247). Moreover, the Community Petition is nothing more than generalized community objections, stating in conclusory fashion that, “[t]here is currently inadequate parking for our customers and invitees during normal business hours…” (R.59), which opinion is not based upon empirical data. The conclusory allegation of the 32 property owners and businesses is contrary to the expert opinion of the Applicants’ traffic expert. It is also contrary to Colin Realty’s traffic expert, who 156295.1 38 agreed at the public hearing that there was available parking in the municipal parking lots (R. 205). Expert opinion regarding traffic patterns may not be disregarded in favor of generalized community objections. Matter of Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, supra. Colin Realty’s reliance on Franklin Square Donut System, LLC, 63 A.D.3d 927 (2d Dep’t 2009), lv denied 14 N.Y.3d 711 (2010), is misplaced. In that case, the objections were not presented in the form of a petition. The objections constituted eyewitness testimony of actual conditions at the premises. The Supreme Court below addressed this issue, holding that the ZBA did not err in refusing to consider the petition submitted after the hearing was closed and, “[i]n any event, the two sentences set forth in the petition are conclusory and non evidentiary in nature and merely voice generalized community objections”, citing this Court’s decisions in Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson, 5 N.Y.3d 236 (2005) and Pecoraro v. Board of Appeals of Town of North Hempstead, supra. (R.18). 156295.1 39 CONCLUSION The Decision and Order of the Appellate Division, Second Department, should be affirmed, on the grounds that, under the scheme of the Town Code, a parking variance and a loading zone variance are area variances and the Decision of the ZBA is supported by substantial evidence, is not arbitrary or capricious, not in violation of lawful procedure and not affected by an error in law. Dated: Garden City, New York December 16, 2013 Respectfully submitted, ALBANESE & ALBANESE LLP By: _________________________________ Bruce W. Migatz Attorneys for Respondents-Respondents, Manhasset Pizza, LLC and Fradler Realty Corporation 1050 Franklin Avenue Garden City, NY 11530 516-248-7000 156295.1 40 APPENDIX Article XIX of the Code of the City of Albany Article VI of the Code of the Town of North Hempstead Section 319 of the Town of Hempstead Building Zone Ordinance