In the Matter of Colin Realty Co., LLC, Appellant,v.Town of North Hempstead, et al., Respondents.BriefN.Y.September 10, 2014To Be Argued By: SIMONE M. FREEMAN, ESQ. Time Requested: 30 Minutes Court of Appeals STATE OF NEW YORK BRIEF FOR RESPONDENTS-RESPONDENTS 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. AMATO LAW GROUP, PLLC 666 Old Country Road, Suite 901 Garden City, New York 11530 Phone No. (516) 227-6363 Fax No. (516) 227-6367 Appellate Counsel to: LINDA B. ZUECH, Acting Town Attorney TOWN OF NORTH HEMPSTEAD Attorneys for Respondents-Respondents Town of North Hempstead, and Town of North Hempstead Board of Zoning and Appeals Brief Completed on: December 18, 2013 Of Counsel: SIMONE M. FREEMAN, ESQ. MEGAN F. CARROLL, ESQ. Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601 Printed on Recycled Paper 20331 TABLE OF CONTENTS TABLE OF AUTHORITIES...................................................... III STATEMENT OF THE NATURE OF THE CASE. ............. ...... ....... 1 QUESTIONS PRESENTED...................................................... 6 COUNTER-STATEMENT OF FACTS.. ... ........ .......... ...... ..... .... ... 7 ARGUMENT ..................................................................... ... 17 POINT I THE LOWER COURT PROPERLY HELD THAT THE VARIANCES SOUGHT FOR LOADING AND UNLOADING AREA AND PARKING WERE PROPERLY TREATED AS AREA VARIANCES ...................................................... 17 A. The Second Department's Holding is Consistent with Existing Case Law .................................................. 18 B. While the Second Department Properly Applied the Holding of Off Shore Rest. Corp. v. Linden, this Case's Facts Required a Contrary Result .... ... ....... ...... ... 27 POINT II THE SECOND DEPARTMENT PROPERL Y DETERMINED THAT THE BOARD'S DECISION GRANTING THE REQUESTED LOADING AND UNLOADING AND PARKING VARIANCES IS RATIONAL AND SUPPORTED BY SUBSTANTIAL EVIDENCE CONTAINED IN THE RECORD ... 31 A. The Board Carefully Considered all of the Factors Required Under Town Law Section 267-B(3) .................. 33 1 B. The Board Properly Found that the Grant of the Requested Variances will not Produce an Undesirable Change in the Character of the Neighborhood ............... 34 C. The Board Properly Considered Whether There Were Feasible Methods Available to the Applicant Other Than An Area Variance ................................... 38 D. The Board Properly Considered the Magnitude of the Requested Variances .............................................. 39 E. The Properly Board Considered the Potential Negative Environmental or Physical Impact Granting the Requested Variance Would Impose on the Community. . . . . . . . . . . . . . . . . .. 41 F. The Board Appropriately Considered Whether the Alleged Difficulty was Self-Created ....•.. ............ ... ......... ... .... 42 G. Generalized Community Opposition Does Not Justify the Denial of a Land Use Application.............................. 43 CONCLUSION ............................................................ ........ 47 ii TABLE OF AUTHORITIES Cases 300 Gramatan Ave. Ass 'n v. State Div. of Human Rights, 45 N.Y.2d 176 (1978) .............................................................. 45 Matter of 450 Sunrise Highway v. Town of Oyster Bay, 287 A.D.2d 714 (2d Dept. 2001) ................................................. .43 Matter of Bd. of Comm 'rs. of Great Neck Park Dist. v. Bd. of Zoning and Appeals of the Town of N Hempstead, 188 A.D.2d 464 (2d Dept. 1992) ................................................. .29 Matter of Bracke v. Zoning Bd. of Appeals of Town of Philipstown, 304 A.D.2d 663 (2d Dept. 2003) ................................................. .42 Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39 (1958) ................................................................. 28 Matter of Colin Realty, Co., LLC v. Town of North Hempstead, 107 A.D.3d 708 (2dDept. 2013) .................................... 17, 21, 28, 38 Matter of Cowan v. Kern, 41 N.Y.2d 591 (1977) ............................................................... 31 Matter of Easy Home Program v. Trotta, 276 A.D.2d 553 (2d Dept. 2000) ........................................................... .38 Matter of Friends of Shawangunks, Inc. v. Zoning Bd. of Appeals of Town of Gardiner, 56 A.D.3d 883 (3d Dept. 2008) .................................................. .42 Matter of Fanelli v. New York City of Conciliation & Appeals Bd., 90 A.D.2d 756, (lst Dept. 1982) .................................................. .44 Matter of Featherstone v. Franco, 95 N.Y.2d 550 (2000) ............................................................... 44 Matter of Ferencik v. Zoning Bd. of Appeals of Town of Oyster Bay, 74 A.D.3d 807 (2d Dept. 2010) ................................................... 31 Matter of Frank v. Zoning Bd. of Town of Yorktown, 82 A.D.3d 764 (2d Dept. 2011) ............................................... 31, 34 iii Matter of Gebbie v. Mammina, 13 N.Y.3d 728 (2009) ....................................................................... 32 Matter ofGenser v. Bd. of Zoning & Appeals of Town of North Hempstead, 65 A.D.3d 1144 (2d Dept. 2009) ................................................... .31, 34 Matter of Goldberg v. Zoning Bd. of Appeals of City of Long Beach, 79 A.D.3d 874 (2d Dept. 2010) ................................. ~ ............ .32,34 Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768 (2d Dept. 2005) ............................................. . passim Matter of Hampshire Mgt. Co. v. Nadel, 241 A.D.2d 496 (2d Dept. f997) ................................................. .44 Matter of Kam Hampton I Realty Corp. v. Bd. of Zoning Appeals of the Vi!. of East Hampton, 273 A.D.2d 387 (2d Dept. 2000) ................................................. .44 Matter of Long Island Affordable Homes, Inc. v. Bd. of Appeals of Town of Hempstead, 57 A.D.3d 996 (2d Dept. 2008) .............................................. .38, 43 Matter of Merrick Gables Ass'n v. Fields, 143 A.D.2d 117 (2d Dept. 1988) .......................................... 20, 22; 24 North Country Citizens for Responsible Growth, Inc. v. Town of Potsdam Planning Bd., 39 A.D.3d 1098 (3d Dept. 2007) ................................................. .39 Matter of North Shore FC.P., Inc. v. Mammina, 22 A.D.3d 759 (2d Dept. 2005) ................................................... 36 Matter of North Shore Steak House v. Bd. of Appeals of Incorp. Vi!. of Thomaston, 30 N.Y.2d 238 (1972) .............................................................. 28 Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972) ....................................................... .. passim Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 (1971) ............................... ......................... .passim Matter of Pecoraro v. Bd. of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004) .............................................................. 31, 32, 33 iv Matter 0/ Plandome Donuts, Inc. v. Mammina, 262 A.D.2d 491 (2d Dept. 1999) ................................................. .30 Matter 0/ Sasso v. Osgood, 86 N.Y.2d 374 (1995) ......................................................................... 33 Matter 0/ Sunset Sanitation Servo Corp. V. Bd. o/Zoning Appeals o/Town o/Smithtown, 172 A.D.2d 755 (2d Dept. 1991) .................................................. .44 Matter o/Thirty West Park Corp. V. Zoning Bd. 0/ Appeals 0/ the City 0/ Long Beach, 43 A.D.3d 1068 (2d Dept. 2007) ................................................. .37 Matter o/Twin County Recycling Corp. V. Yevoli, 90 N.Y.2d 1000 (1997) ............................................................... 43 Matter o/Yarbough V. Franco, 95 N.Y.2d 342 (2000) .................................................................. 43, 44 Statutes and Local Laws Building Zone Ordinance of the Town of Hempstead § 319 ...... : ............. passim General Municipal L(lw § 239-m .......................................................... 7 Town Code of the Town of North Hempstead § 70-103 .............................. 24 Town Code of the Town of North Hempstead § 70-103(A)(l) ........................ 7 Town Code of the Town of North Hempstead § 70-103(F) ........................... 7 Town Code of the Town of North Hempstead § 70-125(B) ........................... 28 Town Code of the Town of North Hempstead § 70-126(A) ........................... 13 Town Code of the Town of North Hempstead § 70-208(F) ........................... 7 Town Law 267-b ...................................................... ................ passim Town Law 267-b(3) ..................................................................... 6,33 v Other Authorities Anderson Zoning Law Practice in New York State § 18.04-18.05 .................. 20 The Bluebook: A Uniform System of Citation, Rule 1.2(a) (19th ed. 2010) ....................................................................... 27 Practice Commentaries, McKinney's Cons. Law of N.Y., Town Law § 267-b (2004 ed.) ............................................................................. 39 Rathkopf, Law of Zoning and Planning, § 45-1 ......................................... 20 Terry Rice, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y. Book 61, Town Law § 267-b, Pocket Part .......................................... 19, 34 VI STATEMENT OF THE NATURE OF THE CASE This brief is submitted on behalf of the Town of North Hempstead, Town of North Hempstead Zoning Board of Appeals, and David L. Mammina, Donal McCarthy, Paul Aloe, Anna Kaplan and Leslie Francis, as Members thereof (collectively the "Board,,)l in opposition to petitioner-appellant, Colin Realty Co., LLC's ("Colin"), appeal from the Appellate Division, Second Department's June 5,2013 Decision and Order (the "Order"). The Second Department's Order upheld an order of the Supreme Court, Nassau County, dismissing Colin's hybrid- action seeking a judgment vacating and annulling a determination of the Board granting applications for a conditional use permit and area variances for loading and unloading areas and parking. The Town respectfully requests that the Order be affirmed in all respects. This appeal arises from the Board's granting of applications made by respondents-respondents, Manhasset Pizza, LLC ("Manhasset Pizza") and Fradler Realty Corporation, LLC's ("Fradler"),2 for: (i) a conditional use permit; and (ii) loading and unloading areas and parking variances to convert an existing permitted retail use into a conditionally permitted restaurant use. The proposed restaurant I The Town of North Hempstead and the Board are hereinafter referred to collectively as the "Town"). 2 Fradler Realty Corporation, LLC is f/k/a Fradler Realty, LLC. 1 would be operated within a building with established insufficient loading and unloading areas and parking. The building, which does not provide any loading and unloading areas and/or parking, was developed prior to the enactment of a more restrictive zoning ordinance requiring same within the zoning district in which the building is situated. As a result, the building is considered to be a non- conforming building. The existing retail use at the building is, however, a permitted use. The proposed restaurant use is also permitted in the relevant zoning district, subject to the issuance of a conditional use permit. For the proposed restaurant use, the Code of the Town of North Hempstead (the "Code") now requires one off- street parking space for every four seats or four persons which can legally be accommodated within the confines of the building area, plus one space per employee for a total of24 off-street parking spaces. (R. at 248,420).3 One loading and unloading area is also required. (R. at 250,420). Consistent with prevailing law, the Board treated the applications for variances from the Code's loading and unloading area and parking requirements as area variances. In fact, as set forth in greater detail below, this Court's binding precedents counsel that this is the appropriate designation for the applications, 3 All references to "(R. at )" refer to the Record on Appeal. 2 since the existing retail use is permitted as-of-right, and the proposed restaurant is a conditionally permitted use in the relevant zoning district. As such, in considering the applications, the Board balanced the factors set forth in Town Law § 267-b governing area variances and concluded that the issuance of the requested variances from the parking and loading-zone restrictions would not have an adverse impact upon the surrounding area. The ultimate question on appeal is, therefore, whether the applications for loading and unloading area and parking variances were properly treated as applications for area variances, as opposed to applications for use variances. Applying the standards set forth by this Court in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1977) and Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 (1971), both the Supreme Court, Nassau County, and the Appellate Division, Second Department,. properly held that they were. Specifically, this Court reiterated, in both Off Shore and Overhill, that the analysis of whether a variance may properly be classified as an area variance or a use variance is fact specific. In Overhill, which involved facts similar to the case at bar, this Court instructed that when faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, courts should look to whether the proposed use is permitted 3 within the relevant zoning district. Matter of Overhill Bldg. Co. 28 N.Y.2d at 453- 54. If the use is permitted in the relevant zoning district, as it is here, the rules relating to area variances control. Id. Consistent with this rationale, this Court later reasoned, in Off Shore, that in determining whether an application for a parking variance should be treated as a use variance or an area variance, courts should "look to reasons for the restriction, and then adapt rules applicable to the use or area variance." Matter of OffShore Rest. Corp. 30 N.Y.2d at 168-70. In an attempt to obfuscate the issues, Colin attempts to persuade this Court that principles of stare decisis prevent trial courts from considering the unique facts of the cases before them in the context of applying established legal standards. To that end, Colin essentially asks this Court to overlook the dissimilarities between the facts giving rise to the Off Shore matter and the facts at issue herein. In addition, Colin incorrectly argues that this Court has effectively overruled its holding, in Overhill, that when the proposed use is permitted within the subject zoning district, a r~quest for a variance from parking restrictions is regarded as an area variance. As is amply demonstrated below, Colin's arguments fail as a matter of law. Simply stated, the Second Department's Order adheres to this Court's mandate and 4 should be affirmed. The Second Department clearly looked to the reasons for the restriction, namely the existing nonconformity of the building, and considered whether the existing and proposed uses are permitted in the relevant zoning district, which they are. Based upon the analysis of the applicable facts and law, the Second Department properly upheld the Board's treatment of the applications for parking and loading and unloading areas as area variances under the scheme of the Code. Respectfully, for the reasons that follow, the Order of the Second Department must be affirmed in all respects. 5 QUESTION: ANSWER: QUESTION: ANSWER: QUESTION: ANSWER: QUESTIONS PRESENTED Did the Second Department properly find that a use variance was not required to convert a permitted retail use to a conditionally permitted restaurant use in a pre-existing non- confirming building with established insufficient parking? Yes. The Second Department correctly concluded that the requested variances for loading and unloading area and parking were properly treated as area variances under the scheme of the Code of the Town of North Hempstead. Did the Second Department improperly depart from controlling precedent, namely, the holding in the Matter of OffShore Rest. Corp. v. Linden, in determining that the Board of Zoning and Appeals properly treated the requested variances for loading and unloading area and parking as area variances? No. While the Second Department properly applied the holding of Off Shore Rest. Corp. v. Linden, the facts in this . case required a contrary result. Did the Second Department properly find that respondent- respondent, Board of Zoning and Appeals engaged in the required balancing test set forth in Town Law § 267-b(3), and acted rationally in granting the requested loading-zone area and parking variances. Yes. The extensive record and 14-page findings of fact prepared by the Board of Zoning and Appeals demonstrate that it thoroughly analyzed the application before it as required by Town Law § 267-b(3), and acted rationally in granting the requested loading-zone area and parking variances. 6 COUNTER-STATEMENT OF FACTS Procedural History Respondents-Respondents, Manhasset Pizza and Fradler, submitted an application for a Commercial Building Permit to the North Hempstead Department of Building Safety, Inspection and Enforcement (the "Building Department"), in order to perform interior alterations to an existing commercial building to convert the same into a restaurant. (R. at 73,268-69). By Notice of Disapproval dated January 7,2011, the Building Department denied the application because a conditional use permit and certain area variances for parking and off-street loading and unloading areas were required. (R. at 72-73, 275). On February 4,2011, Manhasset Pizza and Fradler filed an appeal seeking: (a) a conditional use permit pursuant to Code § 126A to convert the existing commercial retail space into a restaurant; and (2) variances from Code §§ 70- 103(A), 70-103(F), and 70-208(F) to permit improvements to a nonconforming commercial building with established insufficient parking and off-street loading and unloading zones. (R. at 72-73,277-91). As required by General Municipal Law § 239-m, the Board referred the matter to the Nassau County Planning Commission which recommended local determination. (R. at 73). Thereafter, the Board conducted a public hearing on 7 March 23,2011, during which petitioner-appellant, Colin, was given an opportunity to appear in opposition to the application and present a traffic expert as a witness. (R. at 104-237). At the hearing, the Board reviewed the requested parking and loading and unloading variances pursuant to the balancing test set forth in Town Law 267-b governing area variances. (R. at 178-256). At no time during the hearing did petitioner-appellant or its expert object to this standard of review. (R. at 178-256). In addition, petitioner-appellant did not enter into the record any community petition(s), pleadings or court orders concerning the property, and/or other community opposition. (R. at 178-258). At the conclusion of testimony, the hearing was held open for the limited purpose of permitting Colin's traffic expert to support his testimony with a written response to the traffic analysis and report submitted by Manhasset Pizza's expert, and for Manhasset Pizza's traffic expert to submit a reply thereto. (R. at 245-47). Colin's expert filed its written response on March 29,2011. Manhasset Pizza's expert filed its reply on April 5, 2013, at which time the hearing was closed, and decision reserved. (R. at 328-29). The Board adopted a fourteen-page findings of fact and decision on May 25, 2011, in which it granted the requested variances by a vote of 5-0. (R. at 71-84). Petitioner-Appellant commenced a hybrid Article 78 proceeding seeking to 8 annul the Board's determination. (R. at 20-70). The decision of the Board was upheld in its entirety and the petition was dismissed by order and decision of the Supreme Court, Nassau County (Jaeger, J.S.C.), dated February 14,2012. (R. at 7-17). Petitioner-Appellant then appealed to the Appellate Division, Second Department. The Second Department upheld the lower court order, and the decision of the Board by decision and order, dated June 5, 2013. (R. at 419-21). Petitioner-Appellant thereafter filed a Motion for Leave to Appeal the decisi()n and order of the Second Department with this Court, which motion was granted by decision and order, dated September 3,2013. (R. at 417). Subject Property The property subject to this proceeding is known as 429 Plandome Road, Manhasset, New York, and identified on the Nassau County Land and Tax Map as Section 3, Block 138-02, Lot 20 (the "Premises"). (R. at 72, 181,274). The Premises is located in the Business A zone on the west side of Plandome Road, 110.02 feet north of Bayview Avenue in Manhasset. (R. at 72-73, 181). It is slightly irregular in shape, with approximately 90 feet of frontage along Plandome Road, and depths of approximately 137.15 feet on the south side, and approximately 114 feet on the north side. (R. at 73, 75). The total lot area is 9 approximately 10,946 square feet. (R. at 268-69,274). In 1938, Fradler purchased the property and developed it with a one-story commercial building capable of accommodating seven storefronts. (R. at 181, 332-33). A Certificate of Occupancy was issued to Fradler for the building on June 12, 1939. (R. at 181, 332). Since the Code did not include parking and/or on- street or off-street loading zone restrictions until 1967, no off-street parking or loading zones were required or provided. As a result, a parking variance is necessary to operate a business, other than retail, at the Premises. (R. at 192). As it exists today, the property is developed with a pre-existing, non- conforming one-story brick building with established insufficient off-street parking and loading zones. (R. at 332-33). When the application was made to the Board, five storefronts occupied this building: a vacant storefront (415 Plandome Road); a dry cleaner (421 Plandome Road); a shoe repair shop (425 Plandome Road); a hair salon (427 Plandome Road); and another vacant storefront at the location proposed herein (429 Plandome Road). (R. at 76, 181-83). The subject storefront has been vacant since 2007. (R. at 75, 77, 182, 191). 10 Proposed Restaurant Manhasset Pizza sought a conditional use permit to operate a full waiter service, dine-in restaurant, which will serve alcoholic beverages. (R. at 181, 184). The plans contemplate a pizza component, but the restaurant will not function as a pizzeria. (R. at 181, 184).4 Pursuant to·a condition imposed by the Board, there shall be no more than 45 seats on the Premises at any given time. (R. at 83). The condition defines "seat" as any place on the Premises where a patron may sit and be served, whether or not a person is seated there.5 (R. at 83). Character of this Downtown Community The Premises is situated on Plandome Road. (R. at 72-75). Plandome Road is a vibrant suburban downtown street with retail, office, public assembly, and food uses. (R. at 76, 80, 318-24). Within a 300-foot radius of the Premises, there are approximately 12 other food uses, including restaurants and/or delicatessens of similar size or layout. (R. at 75-76, 80,274). In addition, there is a barber shop and five hair and/or nail salons; 16 retail uses of various types; two office 4 At the hearing held before the Board, counsel for Manhasset Pizza represented that the primary restaurant service will be dine-in, not take out. (R. at 181-184). 5 For example, a table set up with four chairs qualifies as four seats. (R. at 83). 11 buildings; a movie theater; a fire house; a VFW hall; and two apartments. (R. at 80). The majority of retail uses in the area close between the hours of 5 :00 PM and 8:00 PM. (R. at 76-77,318-24). The Manhasset train station located along the Port Washington line of the Long Island Railroad is also situated approximately one block south of the Premises. (R. at 335). In this area, loading and unloading of trucks is permitted along Plandome Road. (R. at 77, 186). The Manhasset Park District also maintains two metered municipal parking lots for public use to the rear of the subject premises. (R. at 75- 76, 187-89,318-24,336-340). Both lots are located within a 300-foot radius of the Premises. (R. at 274). It is undisputed that these municipal parking lots provide parking to supplement the lack of available off-street private parking. (R. at 75, 76, 187-213,318-24,420). There are a total of 121 combined off-street parking spaces available for public use in these lots. (R. at 75-76, 187-90,318-24). Additionally, it is undisputed that there are another 55 on-street parking spaces provided along Plandome Road in the immediate vicinity, plus an additional five on-street parking spaces available along Bayview Avenue. (R. at 75-76, 187- 90,240,318-24). There are also several other lots in that area that provide off- street parking for customers and/or employees of local businesses. (R. at 187-91). 12 Available parking in this area is lowest during the midday hours, since it is a primary business area with multiple uses, including business, retail, and food uses in operation at this time. (R. at 76-77, 188-90,318-24). As a result, the parking demand in this area is likely to be its greatest at that time. (R. at 76-77, 188-90, 318-24). Conditional Use Permit & Variance Application Manhasset Pizza and Fradler jointly filed an application with the Building Department, to permit the conversion of the subject property into a 45-seat, full service dine-in restaurant. (R. at 268-74,268,275). By Notice of Disapproval dated January 7, 2011, the Building Department denied the application, as a conditional use permit under Code § 70-126(A) and certain variances for parking and off-street loading and unloading area, were required from the Board. (R. at 275). Specifically, Code § 126(A) provides, in part, that a building may be erected, altered or used and a lot or premises may be used for a restaurant in the Business A zone when authorized by the Board. (R. at 255-56). With respect to the number of required off-street parking spaces for restaurant uses, Code § 103 (A)(I) provides that there shall be one parking space for each: 13 ... 4 seats or 4 persons which can be legally accommodated, plus 1 space per employee. In the case of employee spaces, there shall be not less than 2 employee spaces, plus 1 employee space for every 10 seats. Parking for bar or waiting area, if any, shall be provided in addition to parking provided for dining room. If take-out service is provided, an additional 5 spaces shall be provided. (R. at 248). With respect to off-street loading and unloading parking spaces for business uses, Code § 103 (F) further provides that: Provision for off-street loading and unloading shall be made on premises used for a business purpose in a location that will not interfere with accessory parking and means of ingress and egress thereto, and such areas shall be surfaced in the same manner as the parking areas. The area to be allocated for loading and unloading shall be at least 10 feet in width, 25 feet in length and 15 feet in clear height. (R. at 250). After performing the requisite calculations, the Board determined that 24 parking spaces, and one off-street loading and unloading zone, are required for the proposed restaurant use. (R. at 275). Since the building is non-conforming as- built, none are provided. (R. at 72). Manhasset Pizza anticipates that its parking demand will be greatest: (i) on Friday and Saturday between the hours of 12:00 PM - 7:00 PM; and (ii) on Monday through Thursday between the hours of7:00 PM - 9:45 PM. (R. at 76-77, 188-90, 318-24). Manhasset Pizza's traffic expert conducted a parking analysis between 14 the hours of: (i) 12:00 PM - 7:00 PM on Friday, March 18,2011 and Saturday, March 19,2011; and (ii) 7:00 PM - 9:45 PM on Monday, March 21,2011. (R. at 76-77,188-90,318-24). The number of vacant on-street and municipal parking lot spaces was observed and recorded in 15 minute intervals during this analysis. (R. at 188-90). The lowest number of vacant spaces observed during the midday hours was 32, at 1:15 PM on that Friday. (R. at 76-77, 187-191,318-24). This is eight spaces more than the restaurant use is expected to generate under the Code. (R. at 76-77, 275,318-24). This number does not include the spaces provided in the small parking lot to the rear of the Premises which is used by the adjacent businesses for employee parking. (R. at 76-77, 275,318-24). Deliveries would be received approximately four times per week. (R. at 77). Deliveries can be accommodated through the front of the building on Plandome Road, as is done with other establishments located along Plandome Road. (R. at 77). 15 The Board's Determination The Board personally observed the neighborhood and also had before it and reviewed relevant documents including, a survey; records from the Nassau County Department of Assessment; a Short Environmental Assessment Form; a Disclosure Affidavit for Corporations; letters of consent; a site plan for the proposed restaurant prepared by Thomas Fitzsimmons, AIA, dated November 29, 2010; a Parking Analysis Report dated March 22, 2011, prepared by VHB Engineering, Surveying and Landscape Architects, P .C. ("VHB Report"); a letter prepared by Colin's traffic expert, Norman Gerber Associates dated March 29,2011 (the "Gerber Letter"); and VHB's letter dated April 5, 2011 prepared in response to the Gerber Letter ("VHB Reply"); a Certificate of Occupancy dated June 12, 1939; a Certificate of Completion dated November 29, 1990; a Notice of Decision for Appeal #15142 dated June 13, 1994; photographs; a 300-foot radius map; and the documented building history of the Premises and surrounding properties. (R. at 74). In a well-reasoned 14-page findings of fact and decision, the Board granted the application. (R. at 71-84). In doing so, it considered all of the relevant dimensional data of the proposal, including the floor area of the proposed restaurant and the number of seats proposed within that area. The Board also 16 evaluated the existing uses in the surrounding area and the impact the proposed use would have thereon, carefully considered relevant statutory criteria contained Town Law §267-b, and engaged in the appropriate balancing analysis required thereunder. It performed its charged task upon objective evidence contained in the record. (R. at 71-84). ARGUMENT POINT I THE LOWER COURT PROPERLY HELD THAT THE VARIANCES SOUGHT FOR LOADING AND UNLOADING AREA AND PARKING WERE PROPERLY TREATED AS AREA VARIANCES. By unanimous vote, the Second Department upheld the Board's determination to treat the requested variances for loading and unloading areas and parking, as area variances, and affirmed the decision of the Supreme Court, Nassau County, dismissing Colin's proceeding. (R. at 420). In doing so, the Second Department correctly concluded that, "[c]ontrary to Colin's contentions, the ZAB properly determined that the variances pursuant to which Manhasset Pizza sought relief from the parking and loading-zone requirements were to be treated as applications for area variances under the scheme of the Town Code." Matter of Colin Realty Co., LLC v. Town ofN Hempstead, 107 A.D.3d 708 (2d Dept. 2013); (R. at 420). 17 The two principal arguments advanced by Colin on appeal fail as a matter of law. Specifically, Colin erroneously argues that: (1) the Second Department improperly departed from controlling precedent, namely, the holding in the Off Shore Rest. Corp. v. Linden, in determining that the requested variances were properly treated as applications for area variances; and (2) that use variances, as opposed to area variances, were required for relief from the parking and loading- zone requirements of the Code. Colin's arguments are not now, nor were they ever, genuine arguments. A. The Second Department's Holding is Consistent with Existing Case Law. Even a cursory review of the prevailing case law confirms that the Second Department's decision properly considered and applied this Court's prior holdings, including Off Shore Rest. Corp. v. Linden and Matter of Overhill Bldg. Co. v. Delany. If accepted, Colin's argument that the Second Department committed reversible error by diligently applying the holdings of the cited cases to the facts of the case before it would tum the rule of stare decisis on its head. While lower courts may not overrule this Court's decisions, stare decisis simply does not require that lower courts overlook the unique facts of an individual case in -18- applying the legal standards set forth by this Court. Accordingly, the Second Department's decision should be affirmed. Colin's machinations cannot alter the fact that the Second Department's holding is entirely consistent with this Court's numerous pronouncements that the analysis of whether a variance may properly be classified as an area or a use variance is fact specific. Colin's attempt to misconstrue the OffShore decision to support his claim that parking variances are necessarily use variances flatly ignores the express holding thereof. In fact, in OffShore, this Court opined that a parking restriction, as an "adjunct restriction," will be categorized as a use variance or an area variance, based upon the particular circumstances at issue: [V]ariances are generally classified as 'use' or 'area' variances depending on the type of restriction to be avoided .... 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 adapt rules applicable to use or area variances, whichever best meets the problem. Id., 30 N.Y.2d at 169; (emphasis supplied); see also, Terry Rice, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 61, Town Law § 267-b, at 295. As discussed in greater detail below, the Second Department undeniably -19- abided by this Court's precedent by "look [ing] to the reasons for the restrictions" in concluding that the requested variance was an area variance. Matter of Off Shore Rest. Corp., 30 N.Y.2d at 169 The OffShore decision's assessment of the variable nature of parking restrictions is consistent with this Court's earlier holding in Overhill. In that case, this Court outlined the method by which courts should evaluate applications for variances from' zoning regulations which prescribe the number of off-street parking spaces required for a building. As in the case at bar, the subject use in Overhill was a permissible use within the zoning district. Accordingly, the Court concluded that the requested parking variance should be treated as an area variance: [I]n our view' ... when courts are faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, the rules relating to area variances obtained . ... '{IJn general, an area variance is one that does not involve a use which is prohibited by the zoning ordinance while a use variance is one which ... permits a use of land which is proscribed. ' ' ... Thus, where as here, property is located in a business zone, and there is no doubt that the use intended ... is within the allowed uses for that district, a requested variance is an area variance.' (emphasis supplied) (citing Anderson, Zoning Law and Practice in New York State, Section 18.04-18.05; Rathkopf, Law of Zoning and Planning, Section 45-1); accord Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 773-74 (2d Dept 2005), leave to appeal dismissed, 6 N.Y.3d 890 (2006); Merrick Gables -20- Ass 'n v. Fields, 143 A.D.2d 117, 120-21 (2d Dept 1988), appeal denied, 73 N.Y. 2d 707 (1989). Here, in rendering its decision, the Second Department properly considered the factors contributing to the need for the requested variances, including the existing nonconformity of the building. Specifically, the Second Department noted that the building is "a nonconforming building without parking or loading and unloading zone because, at the time of its construction, the Code did not include any parking or loading and unloading-zone requirements", Matter of Colin Realty, Co., 107 A.D.3d at 708-09 (emphasis supplied). The Second Department also considered the relevant Code provisions: (1) designating restaurants as a permitted use in the relevant zoning district, subject to the issuance of a conditional use permit, and (2) setting forth the method by which to calculate the required number of off-street parking and loading and unloading areas for restaurant uses. (R. at 420). Based upon its analysis of the applicable facts and law, the Second Department properly upheld the Board's treatment of the applications for parking and loading and unloading areas as area variances under the scheme of the Code. Matter of Colin Realty Co., LLC, 708 A.D.3d at 708-10; (R. at 420). -21- Having failed to demonstrate that the Second Department's decision is inconsistent with this Court's precedent, Colin baselessly argues that the lower courts improperly relied upon the dissenting opinion in Off Shore Rest. Co. v. Linden, supra. Colin, in direct conflict with this Court's express holdings and prevailing caselaw, opines that the majority decision in Off Shore intended to retract from the view espoused in Overhill. Specifically, Colin argues that under OffShore, New York courts may no longer treat parking variances as area variances where the existing and proposed uses are permitted in the relevant zoning district. This argument is, however, fatally flawed inasmuch as it is flatly at odds with the express holding of the majority in Off Shore, which provides, that " ... in determining the rules to govern variance from parking restrictions, one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem." 30 N.Y.2d at 169. Colin's argument that the Overhill decision has been deprived of precedential value is further undermined by virtue of the fact that this Court denied leave to appeal the Second Department's holdings in Matter of Halperin and Merrick Gables Assn., supra, both of which determined that specific applications for parking variances should be treated as area variances based upon the applicable facts and law. In Matter of Halperin, supra, the Second Department affirmed the -22- grant of parking variances as area variances, noting, that regardless of whether the zoning code defined parking variances as area variances, it is proper for zoning boards to apply the statutory criteria for area variances where an applicant seeks relief from off-street parking requirements and the existing and proposed uses of the subject property are permitted as of right. Matter of Halperin at 24 A.D.3d at 773-74. More specifically, the Second Department held: 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 criteriafor 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 II 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 OffShore 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 [citations omitted], we need not determine the validity of that provision ... Matter o/Halperin, 24 A.D.3d at 773-74 (emphasis supplied). -23- Likewise, in Merrick Gables Ass 'n, supra, the Second Department affirmed the grant of parking variances as area variances where the existing and proposed uses were permitted uses within the relevant zoning district, noting the zoning board" ... properly determined that the variances for insufficient parking spaces were area variances under the scheme of the Building Zone Ordinance [the "BZO"] of the Town of Hempstead [citations omitted]." Id., 143 A.D.2d at 121. In doing so, the Second Department cited both Matter of Off Shore Rest. Corp. and Matter of Over hill Bldg. Co. v Delany. Id., 143 A.D.2d at 121. Notwithstanding that the Merrick Gables Ass 'n decision is directly on point, Colin argues that the Second Department erred in relying thereon based upon his erroneous conclusion that the BZO at issue therein and the Code are dissimilar. Contrary to Colin's contentions, Code § 70-103 and BZO § 319 are virtually identical inasmuch as both tie parking restrictions to use and area. Compare, Code § 70-103 andBZO § 319. (R. at 248-54).6 To wit, Code § 70-103lists various types of permitted uses and then provides a method of calculation for the required number of parking spaces, etc., based upon the floor area provided for a specific use. (R. at 248-54).7 Similarly, BZO § 319 provides a list of various classes of use 6 BZO § 319 is available at: http://ecode360.comIHE0972. 7 For example, among others, a wholesale establishment or warehouse shall provide one parking space per 600 square feet of floor area; medical, dental and similar uses shall provide -24- and then sets forth required parking for that use, based upon the area of the use, providing 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 .... " Id. With respect to required parking for retail use, BZO § 319 provides that one parking space for each 200 square feet of floor area shall be provided for retail use. Comparably, Code § 103(A)(I) provides that retail stores shall provide one parking space per 300 square feet of floor area in excess of 1,000 square feet. Id. With respect to required parking for restaurant use, BZO § 319 provides that restaurant uses shall maintain one parking 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 corresponding section of the Code requires restaurants to maintain one parking space for each four seats and one parking space per employee. Code § 103(A)(1). In this instance, the number of required parking spaces for the restaurant use under Code § 103 is tied to the floor area of the existing building, and the number of seats that may be installed within that area. one parking space per 150 square feet of floor area in excess of 1,000 square feet; and senior day care uses shall provide one parking space per 500 square feet of gross floor area. Compare with Section 319 of the Building Zone Ordinance of the Town of Hempstead at Appendix to Brief for Respondents-Respondents Manhasset Pizza, LLC and Fradler Realty Corporation. -25- With respect to loading and unloading areas, Code § 103(F) requires that a business use shall provide parking for loading and unloading areas dependent on area (i.e. one per 10,000 square feet of area for retail use; one per 40,000 square feet of officelhotel/other business). Although, BZO § 319 does not contain a specific provision regulating loading and unloading area, BZO § 302(H) prohibits placement of commercial vehicles on premises improved with a single-or two- family residence. Id. Thus, it follows, that loading and unloading areas would only be required in connection with business uses. The only difference between BZO § 319 and Code § 103 is immaterial to the issues before this Court. The BZO provides that the zoning board of appeals may vary the parking restrictions set forth BZO § 319. The Code does not contain a comparable provision. However, this distinction is insignificant where, as here, an applicant seeks relief from off-street parking requirements to accommodate a conversion from one permitted use to another permitted use. See Matter of Halperin, 24 A.D.3d 773-74. As such, the Second Department properly rejected this argument. -26- B. While the Second Department Properly Applied the Holding of Off Shore Rest. Corp. v. Linden, this Case's Facts Required a Contrary Result. The fact that the Second Department determined that the subject variance is an area variance, while the variance at issue in Off Shore was a use variance, does not alter the foregoing analysis. The contrary conclusions reached by the courts reflect only that the facts of the two cases are distinguishable, not that the Second Department somehow erred in its application of the legal standard identified in that case. In fact, the Second Department properly denoted as much with its use of the "cf" citation signal with respect to the Off Shore decision. This citation signal, which indicates that the "[ c ]ited authority supports a proposition different from the main proposition but sufficiently analogous to lend support," is included among the signals indicating support. The Bluebook: A Uniform System of Citation, R. 1. 2 (a) (19th ed. 2010). Accordingly, Colin's position that this citation format constitutes reversible error is untenable. In Off Shore, under the scheme of the City of Long Beach zoning ordinance, an existing delicatessen with established insufficient off-street parking was considered a non-conforming use. See Matter of OffShore Rest. Corp., 30 N.Y.2d at 165-66. The proposed conversion of the delicatessen to a cocktail lounge was considered an enlargement of the non-conforming use; thus triggering the -27- provision in the City of Long Beach zoning ordinance applicable to non- conforming uses. See, e.g., Crossroads Recreation v. Broz, 4 N.Y.2d 39 (1958) (enlargement of a non-conforming use requires a use variance). Accordingly, the applicant was required to obtain a use permit under said zoning provision. Matter a/OffShore Rest. Corp., 30 N.Y.2d at 165-66. Although Colin argues that the existing retail use is non-conforming, simply because it exists within a building that is non-conforming as to parking and loading and unloading areas, this is just not the case. Pursuant to Code § 70-125(B), retail uses are a permitted use in the zoning district in which the Premises is located.8 Therefore, the existing retail use, is by definition, conforming. Further, as noted by the Second Department in its decision, "[R]estaurant uses are permitted in the relevant zoning district, subject to the issuance of a conditional use permit (Town Code 70-126)." Matter a/Colin Realty Co., LLC, 107 A.D.3d at 708-09. Pursuant to this Court's holding in Matter a/North Shore Steak House v. Bd. 0/ Appeals a/the Incorp. Vii. a/Thomaston, "a conditional use permit "allows the property owner to put his property to a use expressly permitted by the ordinance." Id., 30 N.Y.2d at 238,243. As such, both uses are permitted within the zoning district, and no use variance is required for either use. 8 Code § 125(B) is available at: http://ecode360.coml9300778. -28- Colin further argues, albeit incorrectly, that the Second Department, in Matter ofBd. of Comm 'rs. of Great Neck Park Dist., 188 A.D.2d 464 (2d. Dept. 1992), held that Code § 208(F), governing non-conforming uses, applies to any application by a pre-existing non-conforming retail store owner to convert an existing retail use to a restaurant use. This is simply not true. To the contrary, in Matter ofBd. ofComm'rs. of Great Neck Park Dist., supra, the Second Department held that an applicant may not convert an existing non-conforming retail use to another prohibited use absent a use variance. Id., 188 A.D.2d at 464; (R. at 158-61). The retail use at issue in that case was originally established in an area zoned Business A, which permitted such use. Id.; (R. at 158- 61). Thereafter, the zone was changed to Residence B, which prohibited both retail and restaurant uses. Id.; (R. at 158-61). As a result of the change of zone, the existing retail use became aprior non-conforming use. Id.; (R. at 158-61). The applicant then sought to convert the existing non-conforming retail use to a restaurant, which is also prohibited in that zone. Id.; (R. at 158-61). Since both , uses were prohibited uses within the zone, a use variance was required. Id.; (R. at 158-61). Here, on the other hand, Code § 208(F) provides that a nonconforming building shall be altered only if such alteration does not increase the existing -29- nonconformity. CR. at 396). As noted in the Board's findings of fact, the building is a "non-conforming commercial building with established insufficient parking and off-street loading zones." CR. at 72). No off-street parking and/or loading and unloading areas are provided. This nonconformity will not change, regardless of whether the storefront contains a retail use or a restaurant use. Moreover, the Code does not contain a provision designating the change in use an enlargement of the existing use, as was the case in Matter of OffShore Rest. Corp. As such, the Second Department properly rejected this argument. Further, Colin's reliance on Matter of Plandome Donuts, Inc. v. Mammina, 262 A.D.2d 491 (2d Dept. 1999), in support of its argument that the instant parking variance should be treated as a use variance, is also misplaced. The language cited by Colin clearly relates to a condition limiting the extent of the use of the land imposed by the Board in connection with its grant of the requested parking variance. Id. As such, the Second Department upheld the condition to the grant of the variance. Id. It did not hold that a use variance was required. Since the loading and unloading area and parking variances were necessitated by the building's pre-existing nonconformity, and not the existing use, the Second Department correctly held that the applications for relief therefrom -30- were properly treated as applications for area variances. (R. at 420). Accordingly, the decision of the Second Department should be affirmed in its entirety. POINT II THE SECOND DEPARTMENT PROPERLY DETERMINED THAT THE BOARD'S DECISION GRANTING THE REQUESTED LOADING AND UNLOADING AND PARKING VARIANCES IS RATIONAL AND SUPPORTED BY SUBSTANTIAL EVIDENCE CONTAINED IN THE RECORD. Local zoning boards have broad discretion in considering applications for area variances. Matter of Halperin , 24 A.D.3d at 770-771. Judicial review is therefore limited to '''determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion. '" Matter of Halperin, 24 A.D.3d at 771 (citing Matter of Cowan v. Kern, 41 N.Y.2d 591, 599 (1977»; see also Matter ofGenser v. Bd. of Zoning & Appeals of Town of North Hempstead, 65 A.D.3d 1144, 1146-47 (2d Dept. 2009). Thus, the determination of a zoning board to grant an area variance should be sustained upon judicial review if it has a rational basis and is not arbitrary and capricious. Matter of Halperin , 24 A.D.3d at 770-71; Matter of Pecoraro v. Bd. of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004); see also Matter of Frank v. Zoning Bd. of Town of Yorktown, 82 A.D.3d 764 (2d Dept. 2011); Matter ofFerencik v. Zoning Bd. of Appeals of Town of Oyster Bay, 74 A.D.3d 807 (2d Dept. 2010); Matter of Goldberg v. Zoning Bd. of Appeals of City -31- of Long Beach, 79 A.D.3d 874, 876 (2d Dept. 2010). In Matter ofGebbie v. Mammina, 13 N.Y.3d 728 (2009), this Court reaffirmed that it is error for the reviewing court to substitute its own judgment for the reasoned judgment of the zoning board. "[I]t matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions, but not, absent proof of arbitrary and unreasonable action, to make them." Matter of Pecoraro, 2 N.Y.3d at 613. The rationale for that standard, reiterated in Matter of Pecoraro, supra, is as follows: ... the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi- administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with 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 locally responsible officials to determine where the public interest in zoning lies. 2 N.Y.3d at 613. Though frequently argued, "substantial evidence" is not the appropriate I standard in reviewing the determination of a zoning board. Matter of Halperin, 24 A.D.3d at 770-72. Indeed, "substantial evidence" is relevant only to determine -32- whether the record contains sufficient evidence to support the rationality of the Board's determination. Matter o/Halperin, 24 A.D.3d at 772; Matter o/Sasso v. Osgood, 86 N.Y.2d 374,383 n.2 (1995). Rationality, in turn, requires only that there have been "some objective factual basis" to support the determination. Matter 0/ Halperin, 24 A.D.3d at 772. A. The Board Carefully Considered all of the Factors Required Under Town Law Section 267-B(3). In Matter 0/ Pecoraro, supra, this Court reiterated the statutory balancing test required to be undertaken by a zoning board when considering an area variance application: Pursuant to Town Law Section 267-b(3), when determining whether to grant an area variance, a 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 neighborhood or community if the variance is granted. The zoning board is also required to consider whether (1) granting the area variance will produce an undesirable change in the character of the 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 district; and (5) the alleged difficulty is self-created. Matter o/Pecoraro, 2 N.Y.2d at 612. -33- In rendering its decision, the Board is not required to justify its determination with supporting evidence with respect to each of the five factors, so long as the ultimate determination balancing the relevant considerations was rational. See Matter of Halperin, 24 A.D.3d at 772-74; see also Matter of Frank, 82 A.D.3d at 764; Matter of Goldberg, 79 A.D.3d at 877; Matter ofGenser, 65 A.D.3d 1144. Rationality instead requires only that there have been "some objective factual basis" to support the determination. Matter of Halperin, 24 A.D.3d at 772 B. The Board Properly Found that the Grant of the Requested Variances will not Produce an Undesirable Change in the Character of the Neighborhood. The Board engaged in the appropriate analysis, commencing its inquiry by examining whether granting the area variance would have produced an undesirable change in the character of the neighborhood or a detriment to nearby properties. (R. at 79-81). In assessing an area variance application, the conformity or dissimilarity of a property, as compared to the prevailing conditions in the neighborhood with respect to bulk and area, is a highly significant c.onsideration. Terry Rice, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y. Book 61, Town Law § 267-b, Pocket Part at 56. Thus, when examining community character, the Board -34- must focus upon the prevailing characteristics of a neighborhood with respect to the variance being sought. Rice, Practice Commentaries N.Y., Town Law § 267-b, (2006 ed.). In making its determination, the Board properly examined the prevailing character of Plandome Road and downtown Manhasset; considered that the Town Board designated a restaurant use as a permitted conditional use within the Business A zone; and evaluated the availability of alternate parking provided in the area to supplement the lack of available on-site parking at the subject Premises. Critically, there was evidence before the Board that ample parking existed on- street and in two municipal parking lots located to the west of the subject Premises. (R. at 76-77, 318-24). Pursuant to Code § 103(A), 24 spaces, including spaces for employee parking, are required for the proposed restaurant use. (R. at 75, 275-76). Since the building is non-conforming, none are provided. (R. at 75). Manhasset Pizza's traffic expert, Harold Lutz, ofVHB, conducted a traffic study at the subject premises during the proposed peak hours of operation in preparation for the hearing, and submitted a report summarizing results of the same. (R. at 318-24).9 9 The study did not include and/or evaluate the small private lot located directly behind the subject storefront. (R. at 318-24). -35- At the hearing, Mr. Lutz testified that two metered municipal parking lots located within a 300-foot radius of the subject storefront provide 121 combined off-street parking spaces for public use. (R. at 188-91). Another 55 on-street parking spaces are provided along Plandome Road, and an additional five on-street parking spaces are available along Bayview Avenue. (R. at 188-91). A number of private parking lots that restrict use to patrons or employees also provide parking for certain businesses located along Plandome Road. (R. at 188-91). Colin's traffic expert agreed with this analysis. (R. at 211-13,318-24). Mr. Lutz further testified that available parking in this area is lowest during the midday hours since downtown Manhasset is a primary business area with multiple uses. (R. at 188-91). The results of the traffic study revealed that the lowest number of vacant spaces provided during the midday hours was 32, or eight spaces more than would be required for off-street parking under the Code. (R. at 76-77, 318). Based upon the Board's experience with similar appeals, and its own personal observation and experience, it rationally found that those that work in buildings located on or in the immediate vicinity of Plandome Road will likely walk to their destination(s) during peak midday hours. See, e.g., Matter of North Shore F c.P., Inc. v. Mammina, 22 A.D.3d 759, 760 (2d Dept. 2005) (zoning board -36- is entitled to rely upon its personal observation and experience); Matter of Thirty West Park Corp. v. Zoning Bd of Appeals of the City of Long Beach, 43 A.D.3d 1068 (2d Dept. 2007). This point is reiterated by Mr. Lutz's testimony that during the day most restaurant business is generated by walk-in customers. (R. at 188). These customers will likely travel to Plandome Road, park in a municipal lot, and walk to multiple destinations. Once again, Colin's traffic expert did not disagree with this finding, noting that "some [customers] will walk, some will take a car." (R. at 212).10 10 Colin argued to the Second Department that the likelihood that patrons will park in the municipal parking lots and then traverse over Colin's land to reach the restaurant would increase as a result of a grant of the requested variances. The Board squarely addressed this argument in its decision and findings of fact, specifically noting" ... neighboring properly 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." (R. at 79). The Board then rationally concluded that " ... [T]here are ample remedies available in law and otherwise to address this problem, in the event it occurs. For example, they may post 'no trespassing' signs, monitor their property, erect fencing and/or institute legal proceedings." (R. at 79). Colin further alleged, albeit inappropriately, that the Board failed to consider the merits of its action to enjoin customers and employees from traversing its property to access the paved area and doors to the rear of the subject building. However, that action was commenced approximately two months after the close of the hearing on this application and is currently still pending before the Supreme Court, Nassau County. As such, the Second Department properly dismissed this argument, as it is of no merit. Notwithstanding, during the hearing the Board did evaluate the potential impact that a revocation of the existing license to access this area could have. (R. at 199-247). The Board noted that in the event that access to the rear of the property was revoked, patrons could walk down Bayview Avenue to Plandome Road and access the restaurant from Plandome Road. (R. at 236-39). In doing so, the Board considered arguments raised by Colin's traffic expert suggesting that patrons could be required to walk up to 800 feet to access the restaurant from Plandome Road. (R. at 236-39). -37- Although Colin's traffic expert "opined that the proposed restaurant would crowd available on-street parking, that expert also acknowledged that there would be parking spaces available in the nearby municipal lots." Matter of Colin Realty, Co., LLC, 107 A.D.3d at 710; (R. at 421). The Board also determined that garbage pick-up and deliveries could be made at the front of the premises, as is done with other businesses located on Plandome Road, based on evidence contained in the record and its personal knowledge in evaluating similar applications for parking and loading zone variances along Plandome Road (R. at90, 237-38). Based upon substantial evidence contained in the record the Board rationally concluded that the requested variances were in harmony with the character of the community and that the detriment to the community did not outweigh the benefit sought in granting the variances. C. The Board Properly Considered Whether There Were Feasible Methods Available to the Applicant Other Than An Area Variance. The record plainly reveals that the benefit sought by the applicant cannot be achieved by any method, feasible for the applicant to pursue, other than an area variance. See e.g. Matter of Long Island Affordable Homes v. Bd of Appeals of Town of Hempstead, 57 A.D.3d 996, 998 (2d Dept. 2008); Matter of Easy Home -38- Program v. Trotta, 276 A.D.2d 553 (2d Dept. 2000) (record showed the zoning board specifically acknowledged there was no feasible alternative to the proposed plan). As noted above, the subject storefront is located in a pre-existing non- conforming building which was originally developed without parking because none was required. (R. 72-74). Therefore, a parking variance is necessary to operate any business other than retail at the premises. The absence of a feasible altemativ~ to the variances weighs in favor of their grant in this instance; particularly since the variances are in harmony with the character with the community. D. The Board Properly Considered the Magnitude of the Requested Variances. The Board correctly considered the magnitude of the requested variances in granting the sought after relief. While the requested variances are mathematically significant (a 100-percent deviation), "the substantiality of a variance cannot be judged solely by a comparison of the percentage deviation from the mandated requirements of a zoning regulation. Instead, the overall effect of the granting of relief is the relevant inquiry". Practice Commentaries, McKinney's Cons. Law of N.Y., Town Law § 267-b at 334 (2004 ed.); see, e.g., North Country Citizens/or Responsible Growth, Inc. v. Town o/Potsdam Planning Bd., 39 A.D.3d 1098, 1101 (3d Dept. 2007). -39- As previously mentioned supra, the building is a pre-existing non- conforming building with established insufficient parking and loading and unloading zones. A majority, ifnot all, of the properties located along Plandome Road were constructed prior to the enactment of Code restrictions relating to off- street parking and loading zones. As such, many of these properties have sought relief from the parking and off-street loading and unloading area restrictions. Moreover, the parking analysis submitted indicates that there will be ample, if not excess, parking available during peak hours of operation. (R. at 318-24). Critically, it is undisputed that two municipal parking lots operated by the Manhasset Park District exist solely for the purpose of providing alternate off-street parking for the properties located along Plandome Road. Further evidence presented to the Board indicates that visitors to this area expect to park and walk to theirdestination(s). (R. at 82, 318-24, 28-29). The relief sought is therefore wholly consistent with the character of a majority of the properties located along Plandome Road and the character of this downtown community. When considered against the other buildings fronting on Plandome Road, the result of the variance would be in harmony with the neighborhood and wholly contextual. Clearly, the Board properly considered whether the requested area variances -40- were substantial, and rationally concluded that their impact is minimal in light of the character of Plandome Road and the existence of alternate off-street parking maintained to supplement the lack of available off-street private parking. E. The Properly Board Considered the Potential Negative Environmental or Physical Impact Granting the Requested Variance Would Impose on the Community. The Board properly considered the potential negative environmental or physical impact granting the requested variances would have created, noting that, (R. at 78). "[W]hile a restaurant, unlike a store, will produce food waste and noise from refrigeration units, the applicant proposes to mitigate these impacts by installing a refrigerated garbage room and an exhaust system that baffles noise away from the residential properties located on the west side of Locust Avenue." As an additional measure, the Board also imposed certain conditions relating to storage of putrescible waste generated and removal and disposal of same. (R. at 82-83). Colin did not put forth any admissible evidence at the hearing to dispute this finding. (R. at 177-247). As such, the potential negative environmental or physical impacts were appropriately considered as but one of the necessary factors to be analyzed, and the Board properly determined that any potential impact will be mitigated. -41- F. The Board Appropriately Considered Whether the Alleged Difficulty was Self-Created. The Board appropriately considered and determined that the difficulty faced by the owner of the property, Fradler, was not self-created. Difficulty is not self- created when the applicant acquired title to a property prior to the enactment of more strict zoning restrictions. See e.g. Matter of Bracke v. Zoning Bd. of Appeals of Town of Philips town , 304 A.D.2d 663 (2d Dept. 2003); Matter of Friends of Shawangunks, Inc v. Zoning Bd. of Appeals of Town of Gardiner, 56 A.D.3d 883 (3d Dept. 2008) (finding that the hardship was not self-created, as the respondents owned the parcel long before the zoning restrictions were enacted). Respondent, Fradler purchased the property in 1938, and constructed the building in 1939, prior to the enactment of the relevant Code restrictions on parking and loading zones. (R. at 332-33). Colin did not dispute this finding or submit any evidence to the contrary at the hearing. (R at 175-247). As such, the Board appropriately considered that the alleged difficulty was not self-created as one factor weighing in favor of a grant of the requested vanances. -42- G. Generalized Community Opposition Does Not Justify the Denial of a Land Use Application. Generalized community objection is not a basis for denial of a land use application. See Matter o/Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002 ( 1997) (a zoning board of appeals may not base its decision on generalized community objections); see also Matter o/Long Island Affordable Homes, 57 A.D.3d at 999; 450 Sunrise Highway v. Town o/Oyster Bay, 287 A.D.2d 714 (2d Dept. 2001). The findings and ultimate determination of the Board were based upon objective factual evidence and data gleaned from objective evidence contained in the record and personal observation of the affected community. (R. 175-273,318- 30,332-33,341-42). Contrary to Colin's contentions, the Board properly declined to consider the community petition and Complaint contained in the Record on Appeal at pages 47- 58, as they were received well after the close of the public hearing. (R. at 47-70). Late submissions received after the close of a hearing must not be considered, as an administrative determination is limited to the record properly before the agency. See Matter o/Yarbough v. Franco, 95 N.Y.2d 342 (2000).11 11 As noted above, the record of the public hearing was held open for the limited purpose of permitting Colin's traffic expert to prepare a written response, in support of his testimony at the -43- Late submissions of documents strips the Board and those present at the hearing of their opportunity to evaluate or rebut the information contained therein. Id.; see, e.g., Matter of Sunset Sanitation Servo Corp. v. Ed of Zoning Appeals of Town of Smithtown, 172 A.D.2d 755 (2d Dept. 1991); Matter of Hampshire Mgt. Co. v. Nadel, 241 A.D.2d 496 (2d Dept. 1997). Likewise, the Second Department properly declined to consider the community petition and/or Complaint, as information received after the close of an administrative hearing is dehors the record and must not be considered by a reviewing court. Kam Hampton I Realty Corp. v. Ed of Zoning Appeals of Vi!. of East Hampton, 273 A.D.2d 387 (2d Dept. 2000) (judicial review of an administrative determination is limited to the record before the agency, and proof outside the administrative record should not be considered) (citing Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756 (1st Dept. 1982), aff'd 58 N.Y.2d 952 (1983)). See also Matter of Featherstone v. Franco, 95 N.Y.2d 550 (2000); Matter of Yarbough v. Franco, 95 N.Y.2d 342 (2000). hearing, and for Manhasset Pizza's expert to submit a reply thereto (Gerber Letter). The VHB Reply is dated AprilS, 2011. Upon receipt of the same, the hearing was closed and decision reserved by the Board. Colin did not submit the community petition or Complaint until May, nearly a month later. -44- Even assuming arguendo, that the community properly raised its objections before the Board by sUbmitting this petition, the objections made in the petition are generalized, at best. The petition simply states: There is currently inadequate parking for our customers and invitees during normal business hours and we retailers and owners object to both: 1) The granting of the requested substantial variance for the twenty-four (24) required parking spaces and conditional use permit ... ; and 2) To the Manhasset Park District consenting to such a substantial parking variance without public comment and without considering the negative impact and added hardship that will result on existing businesses. It is plainly clear that the petition does not raise any specific objection to the granting of the requested variances. Nor is there any evidence showing that the requested variances would create any specific harm to the area or community. Even if, the petition was inappropriately considered, sufficient evidence exists within the record of such quality and quantity to support the Board's determination to grant the requested variances and conditional use permit. See e.g., 300 Gramatan Ave. Ass 'n v. State Div. of Human Rights, 45 N.Y.2d 176 (1978). Specifically, the undisputed fact that the two municipal lots and on-street spaces provide ample off-site parking (R. at 188-91, 318-24, 328-29, 420). -45- Accordingly, the Board rationally determined that granting the requested variances would permit use of the property in a manner that is wholly consistent with the other properties located along Plandome Road and in the immediate vicinity. -46- CONCLUSION It is clear that the Board engaged in the appropriate balancing analysis, carefully considered the relevant statutory criteria, and rendered a rational determination upon substantial evidence. For all the foregoing reasons, the Board respectfully requests that . the Second Department's Order be affirmed in its entirety, and its determination be affirmed in all respects. Of Counsel: Simone M. Freeman, Esq. Megan F. Carroll, Esq. Respectfully Submitted, AMATO LAW GROUP, PLLC Simone M. Freeman, Esq. Attorneys for Respondents-Respondents TOWN OF NORTH HEMPSTEAD and TOWN OF NORTH HEMPSTEAD BOARD OF ZONING AND APPEALS 666 Old Country Road, Suite 901 Garden City, New York 11530 (516) 227-6363