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 Department 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. >> >> REPLY BRIEF FOR PETITIONER-APPELLANT ROSENBERG CALICA & BIRNEY LLP Attorneys for Petitioner-Appellant Colin Realty Co. LLC 100 Garden City Plaza, Suite 408 Garden City, New York 11530 516-747-7400 Of Counsel: Robert M. Calica Judah Serfaty Date Completed: January 16, 2013 To Be Argued By: Robert M. Calica Time Requested: 20 Minutes RULE 400.13(A) STATEMENT This proceeding concerns a challenge to a zoning board of appeals’ approval of variances and permits allowing the applicants to convert their retail store into a restaurant without providing required off-street parking or loading area. In a recently completed related litigation between appellant Colin Realty Co. LLC (“Colin Realty”) and the applicants, respondents Manhasset Pizza LLC and Fradler Realty Corporation, Colin Realty Co., LLC v. Manhasset Pizza LLC, Fradler Realty Corporation, et al., Sup. Ct. Nassau County Index No. 2011-006563 (“Related Action”), the Court after trial ruled in favor of Colin Realty. The Court there declared that the applicants and their employees and customers have no right to use or traverse over Colin Realty's parking area to access the rear access points to the applicants’ property. A copy of the Court's November 8, 2013 decision after trial therein is available on E-Courts: http://decisions.courts.state.ny.us/10JD/ Nassau/decisions/INDEX/INDEX_new/K.MURPHY/2013NOV/006563-11.pdf. CORPORATE DISCLOSURE STATEMENT Appellant Colin Realty Co. LLC is a privately held limited liability company managed by Fred Colin. 00122794-1 TABLE OF CONTENTS Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I USE VARIANCES AND NOT AREA VARIANCES WERE REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 (1) Respondents misconstrue Off Shore Restaurant . . . . . . . . . . . . . 7 (2) Town of North Hempstead Code Parking Space Calculation Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 (3) “Nonconforming building” versus “nonconforming use” . . . . . 17 (4) Legality of the Pre-Existing “Use” and Availability of “Conditional Use” Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (5) Respondents also offer no basis to not apply stare decisis . . . . 23 POINT II THE ZBA’S DETERMINATION WAS OTHERWISE ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND IRRATIONAL . . 25 POINT III THE ZBA’S REFUSAL TO CONSIDER OBJECTIONS BY LOCAL COMMUNITY PROPERTY OWNERS AND BUSINESSES WAS ARBITRARY AND CAPRICIOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 -i-00122652-1 TABLE OF AUTHORITIES Cases Amzalak v. Incorporated Vil. of Valley Stream, 220 N.Y.S2d 113 (Sup. Ct. Nassau County 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 City of Buffalo v. Cargill, 44 N.Y.2d 7, 403 N.Y.S.2d 473 (1978) . . . . . . . . . . . 24 Clark v. Board of Zoning Appeals, 301 N.Y. 8 (1950). . . . . . . . . . . . . . . . . 26, 32 Dawson v. Zoning Board of Appeals of Town of Southhold, 12 A.D.3d 444, 785 N.Y.S.2d 84 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Franklin Square Donut System, LLC, 63 A.D.3d 927, 881 N.Y.S.2d 163 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35 Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 22 Marro v. Zoning Bd. of Appeals of City of Long Beach, 287 A.D.2d 506, 731 N.Y.S.2d 628 (2d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Matter of Hampshire Mgmt. Co. v. Nadel, 241 A.D.2d 496, 660 N.Y.S.2d 64 (2d Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 32 Matter of Il Classico Restaurant, Inc. v. Colin, 254 A.D.2d 418, 680 N.Y.S.2d 107 (2d Dept. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Matter of Off Shore Restaurant Corp. v. Linden, 30 N.Y.2d 160, 331 N.Y.S.2d 397 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 322 N.Y.S.2d 696 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11 Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 -ii-00122652-1 Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 440 N.Y.S.2d 908 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Merrick Gables Ass’n v. Fields, 143 A.D.2d 117, 531 N.Y.S.2d 581 (2d Dept. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14 Millennium Custom Homes, Inc. v. Young, 48 A.D.3d 740, 873 N.Y.S.2d 91 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474 (1990). . . . . . . . . . . . . . 23-24 Preston v. Board of Appeals of Town of North Hempstead, 229 A.D.2d 585, 646 N.Y.S.2d 41 (2d Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 32 Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 A.D.3d 842, 911 N.Y.S.2d 391 (2d Dept. 2010) . . . . . . . . . . . . . . . 26, 32 W.W.W. Associates, Inc. v. Rettaliata, 175 A.D.2d 133, 572 N.Y.S.2d 22 (2d Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Statutes Town Code of the Town of North Hempstead §70-103 . . . . . . . . . . . . . 4, 7, 13, 17 Town Code of the Town of North Hempstead §70-126 . . . . . . . . . . . . . . . . . 18, 22 Town Code of the Town of North Hempstead §70-208 . . . . . . . . . 5, 18, 19, 20, 22 Town Code of the Town of North Hempstead §70-223 . . . . . . . . . . . . . . . 5, 18, 19 Town Code of the Town of North Hempstead §70-231 . . . . . . . . . . . . . . . . . . 5, 18 Building Zone Ordinance Town of Hempstead § 319 . . . . . . . . . . . . . . . . . . 12, 13 Other Authorities 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02 . . . . . . . . . . . 20 -iii-00122652-1 National Football League Rulebook, Rule 1, “Field of Play”, published at http://www.nfl.com/rulebook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 26 -iv-00122652-1 PRELIMINARY STATEMENT While the Brief for respondent Town of North Hempstead (the “Town”) and its Board of Zoning Appeals (“ZBA”) posits that analysis of whether a variance may properly be classified as an “area” variance or a “use” variance is “fact- specific” under this Court's holding in Matter of Off Shore Restaurant Corp. v. Linden, 30 N.Y.2d 160, 331 N.Y.S.2d 397 (1977) (“Off Shore Restaurant”)1, the Brief for the Town's co-respondents, Fradler Realty Corp. and its proposed tenant, Manhasset Pizza LLC (collectively, the “Applicant” or “Fradler”), materially and indefensibly misrepresents the very factual Record. Thus, notwithstanding that Fradler’s Premises provides no off-street parking whatsoever to support the impact of a proposed, heavily patronized 45-seat and take-out pizza restaurant, Fradler's Brief misleadingly states that the “Manhasset Park District maintains two (2) municipal parking lots to the rear of the Premises and adjacent premises….”, quoting the supposed ZBA Findings of Fact (id., p. 2). But, as the Record conclusively establishes (see aerial photograph and survey of the Fradler Premises and Colin Premises, previously defined, at R. 41 and the 1As shown below, the actual rule of Off Shore Restaurant is that a legal determination is to be made based upon examination of the “reasons for the restriction” as evidenced by the language of the local zoning ordinances i.e., is “a parking restriction...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 for many vehicles to be brought to the site” (i.e., the patron intensive pizza restaurant use here). radius map at R. 2742), there is absolutely no municipal parking whatsoever located “to the rear” of the Fradler Premises. Indeed, only a negligible portion of the municipal parking lot is even located behind the most distant corner of the privately owned adjacent Colin parking lot. As the Town Respondent's Brief necessarily concedes (at p. 12), the closest portion of the municipal lot is “located within a 300-foot radius of the [Fradler] premises” i.e., the nearest available parking to the rear of the Applicant's Premises is located, literally, an entire “football field of play” away (http://www.nfl.com/rulebook, Rule 1), leaving it bereft of any available off-street parking to mitigate the vastly intensified impact of the proposed restaurant use in this congested area.3 Access tothe front of the proposed Restaurant is 800 feet distant from the closest municipal parking (R. 326, 329; see pp. 26-28 infra). Further, misleadingly pointing to testimony of the Applicants' own attorney 2 On the aerial photograph at R. 41, and radius map at R. 274, the Fradler’s Premises is demarcated as Lot 20, the Colin Property is Lot 19, and the municipal parking area is the District Lot 823, the corner lot which adjoins Locust Place. The remaining lots are the private lots of other properties, including most particularly Lots 821 and 822 which are fenced off and provide no access to the Applicant’s Property. 3 The exceptionally congested character of the area of downtown Manhasset where the Applicant's premises is located and the sever impact of inadequate parking was acknowledged by its own counsel herein who responded to a ZBA Member's observation that “you've got certain times of Plandome Road where…you know…a truck parked in the middle of Plandome Road would create problems” by stating “it happens all the time unfortunately. Just driving here this morning there was a tractor trailer unloading on Plandome Road. You know, that's a problem when you don't have, you know, parking” (R. 239). 200121615-1 (its very attorney herein) at the ZBA hearing “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) [id., p. 31], the Applicant’s Brief deliberately ignores that because the ZBA has specifically directed that Fradler must install an indoor refrigerated garbage room for the proposed restaurant (R. 83), Fradler’s owner has conceded in Court, under oath, that as a result, his “understanding [is]…that trash would be picked up from the rear parking lot on Monday, Wednesday and Friday, the same as other [Fradler] tenants and that any additional trash removal would be through the front entrance” (see Amended Short Form Order of Hon. Karen V. Murphy in the related action Colin Realty Co. v. Manhasset Pizza LLC, Nassau County Clerk's Index No. 2011-06563 [available on e-courts at http://iapps.courts.state.ny.us/ webcivil/FCASJcaptcha]). The liberties which the Applicant has taken with the supposedly “fact- specific” elements of this case equally infects the faulty legal analysis in both Fradler's and the Town's Briefs to this Court in the setting where the ZBA, Supreme Court, and the Appellate Division all erroneously upheld the granting of far-ranging parking and loading zone variances (actually, a total exemption from the 24 required parking spaces), thereby allowing the Applicant to vastly expand its pre-existing retail store nonconforming use (supplying no parking whatsoever 300121615-1 and no loading zone) into a heavily patronized and heavily trafficked restaurant, even though the ZBA wrongly applied only “area variance” rules instead of “use variance” rules. As shown below, the “facts” of this case precisely mirror those examined by this Court in Off Shore Restaurant where it concluded that the determinative factor is whether the local code imposes the off-street parking requirement predicated on area/square footage or based on the intensity of the use, holding that “[m]ost often, the parking restriction will relate to uses, and the ordinance by requiring off-street parking for certain uses by a stated formula will so indicate, as in this case.” 30 N.Y.2d at 169. In such cases, a “use” variance is necessary to relax the off-street parking restriction. Id. The Town of North Hempstead Code involved in this case includes just such a “stated formula”, based only on the “use” as a “restaurant”, going so far to base the number of off-street parking spaces required by counting the number of seats at tables for customers and requiring further parking for employees; it also mandates a loading dock only for particular uses, including retail and restaurant (R. 248-250, § 70-103). The respective Respondents’ Briefs of the Town and the Applicant also fail to overcome the legal reality that the Supreme Court and the Appellate Division below both wrongly (and incomprehensibly) applied the holding of the dissent in 400121615-1 Off Shore Restaurant. Respondents also offer no meaningful basis for this Court to reconsider the holding in Off Shore Restaurant that off-street parking restrictions tied to the use and extent of use of a property should be treated as use restrictions. Moreover, their belated argument that the Applicant’s property is supposedly only a “nonconforming building” and not a “nonconforming use” and that a supposedly nonconforming building can increase its nonconformity as to parking because parking is a building and not use restriction, rests on exactly the same error4. The off-street parking requirement of the Town Code is tied to the use of the property, not to the area of the building. Moreover, even applying area variance rules, the ZBA’s determination was arbitrary and capricious when it granted a total relaxation of parking space and loading and unloading dock requirements, even though this means that the 4As shown below, the Respondents invented their claim that the property is supposedly a “nonconforming building” and not a “nonconforming use” in their opposition to the Article 78 petition here. No such claim was made in the application before the ZBA. See R. 71-84 (the application was for “variances ... to permit the conversion of a non-conforming retail store to a food use with established insufficient off-street parking and loading zone”) (emphasis supplied). It was not the building which was identified as nonconforming, it was the “retail store” use of the building “with established insufficient off-street parking and loading zone” which was deemed nonconforming. Further, the applicable North Hempstead Code here defines and treats “nonconforming a building or use” as the same thing. See North Hempstead Town Code §§ 70- 208, 70-223, 70-231, reproduced at R. 395-414. Thus, the applicable North Hempstead Town Code here defines a “nonconforming building or use” as exactly the same thing. See Town of North Hempstead Code § 70-231, “Definitions” (defining “NONCONFORMING BUILDING OR USE” as “One that does not conform to the regulations of the district in which it is situated”) (R. 410). 500121615-1 adjoining business owners, who comply with the zoning law, are made to suffer the applicant’s total failure to provide any off-street parking and any loading dock, causing unacceptable congestion in this dense and heavily trafficked area, and loss of business. Now that appellant Colin Realty has prevailed in its separate lawsuit against respondent Fradler, where the Court ruled that Fradler and its tenants have no right to traverse the Colin Property to reach the “paved area” behind the Fradler Property,5 the ZBA’s determination is even more irrational. POINT I USE VARIANCES AND NOT AREA VARIANCES WERE REQUIRED Respondents completely fail to overcome binding appellate case law, adherence to which is mandated by principles of stare decisis. The Applicant’s property is a pre-existing “nonconforming” use. The nonconformity pertains to its property not providing any off-street parking (or a loading dock) complying with the local zoning code, even for its current, less intense conventional retail use (R. 72; 109). The Applicant sought to greatly expand the pre-existing parking 5 As respondents acknowledge, shortly after Appellant’s Brief was filed with this Court, the Supreme Court, Nassau County in a related litigation ruled in Colin Realty’s favor in a decision after trial. Colin Realty Co., LLC v. Manhasset Pizza LLC, Fradler Realty Corporation, et al., Sup. Ct. Nassau County Index No. 2011-006563, decision dated November 8, 201[3] (the decision was recently corrected to reflect the correct 2013 decision date, by removing the “November 8, 2012” typographical error). A copy of the Court’s decision after trial therein is available on E-Courts: http://decisions.courts.state.ny.us/10JD/Nassau/decisions/ INDEX/INDEX_new/K.MURPHY/2013NOV/006563-11.pdf 600121615-1 nonconformity by converting the general retail use to a “Restaurant-Fast Food” use which will require, under the Town Code, substantially more parking spaces and a loading dock. The area of the store is not being altered at all, only its use. The subject Town Code explicitly bases the number of parking spaces required on the extent and type of the use, providing for different criteria depending on the type of retail use, and for a restaurant use, it actually counts the number of customer “persons” or “seats” which can be accommodated at tables for restaurant “patrons” (R. 248). The loading zone requirement as well is based on the type of “use”, albeit that this translates to applying square footage criteria depending on the type of “use” (e.g. that a “retail” “use” must provide one loading dock space per 10,000 square feet, and an office, hotel, or other business “use” must provide one space per 40,000 square feet (R. 250, Town Code § 70-103). The application, as a matter of law, was subject to use variance requirements, for which the Applicant could never qualify. Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 331 N.Y.S.2d 397 (1972). (1) Respondents misconstrue Off Shore Restaurant The Town Respondents’ mistakenly rely upon this Court’s introductory description in Off Shore Restaurant of how it arrived at the “rule” which it adopted, erroneously contending that the determination is “fact-based”, whereas 700121615-1 the actual rule looks to the “reasons for the restriction” as determined by the statutory language and formula employed in the local zoning ordinance. Thus, the Town’s quote from Off Shore Restaurant at page 19 of its Respondent’s Brief conspicuously ends before reaching the next three sentences of the Opinion in which this Court adopted the “rule” it concluded must apply–that while a zoning code which imposes a parking restriction based only on building size may be subject to an area variance, “[m]ost often, the parking restriction will relate to uses, and the ordinance by requiring off-street parking for certain uses by a stated formula will so indicate, as in this case”. Indeed, no quote of this actual holding of Off Shore Restaurant appears in the Town Respondent’s Brief, and nowhere does the Town even attempt to explain how that rule would not apply to the zoning code in this case which explicitly fixes the number of parking spaces required based on the extent of the restaurant use by counting the actual number of “seats” at tables, customer “patrons”, and “employees” (R. 248), and bases the loading dock requirement based on the type of use (R. 250).6 6 The Town’s Brief quotes the lead-up discussion in Off Shore Restaurant of how this Court was “determining the rules to govern”, but leaves out the opinion’s actual holding. We underline below what the Town’s Brief leaves out, and in fact nowhere addresses: 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 800121615-1 Having completely failed to confront that actual holding of Off Shore Restaurant, the Town does not offer any basis not to apply it. Moreover, the Town errs in contending that Off Shore Restaurant concluded that the legal determination of whether use or area variance rules apply to parking restrictions is supposedly “fact specific”. This Court held no such thing, and to the contrary held that the legal determination is to be made based on examination of the statutory provisions of the local regulation, to determine whether (like in Off Shore Restaurant and like here) the parking requirement is based on a “stated formula” tied to the type and extent of the use, as opposed to based merely on square footage. The Town rests its mistaken claim that this is somehow a fact issue, on this Court’s explanation that the rule which it was applying–looking to the local regulation to see if the parking restriction is tied to use and extent of use or to square footage–gives effect to the “reason for the restriction”. Off Shore 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. 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 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. 900121615-1 Restaurant, 30 N.Y.2d at 169. Interpretation of a zoning code is a law issue, and that is exactly what Off Shore Restaurant required when it held that looking to the zoning code and the bases on which it fixes the parking restriction is the means by which the Court was giving effect to the “reason for the restriction.” The efforts of both sets of Respondents to avoid application of the controlling holding of this Court in Off Shore Restaurant, resorts to relying on the earlier Overhill case which Off Shore Restaurant expressly distinguished and explained does not apply to a local code such as here which fixes off-street parking requirements based on the use and extent of the use and not based on floor area. See Respondents’ Briefs, relying on Matter of Overhill Bldg Co. v. Delany, 28 N.Y.2d 449 (1971). To Respondents, it is as if Off Shore Restaurant had not been decided, the exact same issue had not already been confronted and resolved by this Court, and as though this Court had not already therein expressly rejected the reliance by the applicant there on Overhill. But of course this Court has already so ruled, and Respondents offer no basis to reconsider the holding in Off Shore Restaurant As is explicit in the Overhill case itself, and as this Court in Off Shore Restaurant pointed out was the central distinguishing feature of that earlier case, the local law involved in Overhill required “one off-street parking space for every 1000121615-1 150 square feet of floor area in buildings ....” Overhill, 28 N.Y.2d at 452 (emphasis supplied). As Off Shore Restaurant pointed out, “the parking restriction may be related by the ordinance to the area. That was the situation in Matter of Overhill”. Off Shore Restaurant, 30 N.Y.2d at 169. In addition, the Respondents simply ignore this Court’s observation in Off Short Restaurant that even though that earlier case involved a regulation tied only to square footage and the decision claimed it was applying area variance rules, the Overhill Court, had in actuality, also employed the demanding evidentiary requirements of a use variance. Off Shore Restaurant, supra (“The Overhill court, ... 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”) (emphasis supplied). Further, while there are intimations in the Respondent’s Briefs that the subject store has not been leased for a few years, Respondents do not and cannot claim that the use of the store as a retail store, in a retail area, and surrounded by 1100121615-1 other retail stores “cannot yield a reasonable return”. As shown in Appellant’s Brief, the Applicant did not and does not even purport to have made the rigorous showing in “dollars and cents” that the existing retail use in the retail area cannot “yield a reasonable return” and that the hardship is not “self-created”. Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 258, 440 N.Y.S.2d 908 (1981). Respondents rely on the Second Department’s ruling in Merrick Gables Ass'n v. Fields, 143 A.D.2d 117, 531 N.Y.S.2d 581 (2d Dept. 1988), a case, which we demonstrated in our Appellant’s Brief, expressly made the point which was mandated by this Court in Off Shore Restaurant, i.e., that it is the parking requirement of the local code and how it is formulated which dictates whether the pre-existing nonconformity and the variance relate to “area” or to “use”. Merrick Gables Ass'n, supra (“the board also properly determined that the variances for insufficient parking spaces were area variances under the scheme of the Building Zone Ordinance of the Town of Hempstead (see, Building Zone Ordinance of the Town of Hempstead § 319; Matter of Off Shore Rest. Corp. v. Linden”). In fact, as also previously shown in our Appellant’s Brief, the local code section of the different town identified in Merrick Gables demonstrates why only an area and not a use variance was deemed applicable in that case. See Building Zone Ordinance 1200121615-1 of the Town of Hempstead § 319 (Accessory Parking) (providing that area variance rules apply to parking7). The Town Code of the Town of North Hempstead here contains no similar provision, and it explicitly imposes and calculates parking and loading dock requirements on the use of the property and on the extent of that use, not based merely on its square footage area (North Hempstead Town Code § 70-103, R. 248; see also R. 248-254). Incredibly, the Applicant Respondent admits that the local code involved in the Appellate Division’s Merrick Gables case expressly indicated that the parking restrictions of its code were area restrictions and subject only to area variance rules. With no basis in law to support it, the Applicant simply contends this pivotal fact “is of no moment”. Applicants’ Respondent’s Brief at p. 20. But of course the opposite is true, with town boards expressly given the authority to enact a zoning restriction containing “specific rules” concerning the ZBA’s authority to 7 Building Zone Ordinance of the Town of Hempstead (not North Hempstead) § 319 (Accessory Parking) provides: C. The Board of Appeals may vary the application of this section in any case in which it shall find that compliance herewith is not necessary to prevent traffic congestion or undue on-street parking, or where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this section, and in granting such variance may impose such conditions as it shall find to be in the public interest Available online through link at that Town’s website: http://toh.li/building-zone -ordinance. 1300121615-1 grant variances from a zoning restriction, such as that found in the town code involved in the Merrick Gables case but completely absent in this case. See Town Law § 261 (a town board’s zoning “regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained”) (emphasis supplied). The same is true for the remaining cases relied upon by the Applicants, all of which expressly rely on Merrick Gables, and all of which involved municipalities whose zoning codes did not, as North Hempstead does, calculate parking requirements based on the type and extent of use, but instead based on the floor area. See Il Classico Restaurant, Inc. v. Colin, 254 A.D.2d 418, 680 N.Y.S.2d 107 (2d Dept. 1998) (explaining that the Roslyn Village ordinance there required “one off-street parking space for every 50 square feet of floor area devoted to patron use”); Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 (2d Dept. 2005) (involved a religious house of worship applicant, as to whom this Court pointed out “greater flexibility is required” with respect to zoning laws; city code there specified that parking requirements were subject to area variance rules); contrast Off Shore Restaurant 30 N.Y.2d at 166 (the local code there required, squarely like the local code here, “(18) For restaurants, night 1400121615-1 clubs, tea rooms, lunch counters or the like, one parking space for each four seats, plus such additional space for employee parking as the Building Commissioner shall deem necessary”) (emphasis supplied). As shown in Appellant’s Brief herein, most of the Appellate Division’s case law which it cited in support of its determination upon this appeal can be reconciled with Off Shore Restaurant, except possibly Marro v. Zoning Bd. of Appeals of City of Long Beach, 287 A.D.2d 506, 731 N.Y.S.2d 628 (2d Dept. 2001), which involved that same City of Long Beach Code as was involved in Off Shore Restaurant. What is clear is that the Appellate Division is obligated to follow this Court’s binding precedent in Off Shore Restaurant and it has failed to do so here. (2) Town of North Hempstead Code Parking Space Calculation Method In a weak and insufficient effort to distinguish Off Shore Restaurant, the Town purports that somehow the local Town Code of the Town of North Hempstead here calculates parking and loading zone requirements based on area of the structure and not based on use of the structure. The argument is immediately contradicted by the facts the Town presents in purported support of that absurd contention. The Town admits that under its Town Code, parking space requirements for “Restaurant-Fast Food” are fixed by the number of “seats” or 1500121615-1 “persons” “which can be legally accommodated for patrons” in a restaurant and the number of its employees (R. 248) (emphasis supplied), criteria which are specifically tied to the “use” of the property and the intensity of such use. In fact, if the calculation was based on area, there would have been no need for any variance here, as the area of the store remained exactly the same and the only element which gave rise to a need for more parking spaces and a loading dock was the applicant’s proposed change of use from general retail to a high occupancy, 45-seat “Restaurant-Fast food”. The Applicant take a different but equally meritless approach when it effectively admits that under the local Town Code here, like in Off Shore Restaurant, parking and loading zone requirements are calculated based on the extent of the use, but maintains this Court should, like the lower court erroneously did, follow the dissent in Off Shore Restaurant because the McKinney’s Practice Commentary considered the dissent more convincing. Thus, citing only the Practice Commentary, the Applicant argues that “Regardless of the method of computation of the number of required parking spaces” if the underlying use is permitted, a variance from parking requirements is not a use variance (Applicants’ Respondent’s Brief, p. 15). But this Court’s majority in Off Shore Restaurant held the exact opposite, stating: “Most often, the parking restriction will relate to uses, 1600121615-1 and the ordinance by requiring off-street parking for certain uses by a stated formula will so indicate, as in this case.” 30 N.Y.2d at 168. (3) “Nonconforming building” versus “nonconforming use” Relatedly, Respondents assert that the Applicant's property is somehow not a “nonconforming use” because, they contend, the pre-existing parking and loading zone nonconformities are not use restrictions and are supposedly only “building” restrictions. To state the obvious, the claim rests on the exact same erroneous argument as above. Off Shore Restaurant establishes that the parking and loading zone restrictions here are use restrictions. And this is irrefutably so with respect to the proposed restaurant uses, where the necessity and extent of off-street parking and loading zone requirement is calculated based on matters intimately related only to the extent of the use–counting the number of chairs at tables for customers and the number of employees.8 8 As noted, Respondents invented their claim that the property is supposedly a “nonconforming building” and not a “nonconforming use” in their opposition to the Article 78 petition here. No such claim was made in the application before the ZBA. See R. 71-84 (the application was for “variances ... to permit the conversion of a non-conforming retail store to a food use with established insufficient off-street parking and loading zone”) (emphasis supplied). It was not the building which was identified as nonconforming, it was the “retail store” use of the building “with established insufficient off-street parking and loading zone” which was deemed nonconforming. See also Town of North Hempstead Code § 70-103 (“off-street parking requirements shall apply [to] ... the enumerated uses .... Retail store, personal service shop[:] 300 square feet of floor area in excess of 1,000 square feet”), reproduced at R. 248-254. Indeed, notwithstanding the Applicants’ and the Town’s after-the-fact attempts to misconstrue the nature and effect of the approvals sought and granted, under the Record 1700121615-1 Additionally, if Respondents are contending that a “nonconforming building” is, for some incomprehensible reason, immune from the zoning code, and can suffer a change of use without a use variance, it suffices to point out that nothing in the North Hempstead Town Code supports this outrageous position. See North Hempstead Town Code §§ 70-208, 70-223, 70-231, reproduced at R. 395-414. Thus, the applicable North Hempstead Town Code here defines a “nonconforming building or use” as exactly the same thing. See Town of North Hempstead Code § 70-231, “Definitions” (defining “NONCONFORMING BUILDING OR USE” as “One that does not conform to the regulations of the district in which it is situated”) (R. 410). Additionally, the North Hempstead Town Code provides in § 70-223 (Certificate of existing use) that nonconforming buildings or structures which do not conform with any zoning “restrictions” of any kind are “nonconforming uses” subject to the nonconforming use provisions of §70-208. In particular, § 70-223 provides at subdivision (d)(2), that any “building or premises constructed and/or (including the position of the Building Department, the position of the applicant in its application, and the position of the ZBA in its Decision under review), the property was subject to and was required to obtain a variance from the “nonconforming use” section of the Town Code (§ 70-208) and to obtain a “conditional use permit” (§70-l26A). See R. 71-84, ZBA’s Notice of Decision. 1800121615-1 altered prior to existing zoning ordinances which does not comply with the zoning restrictions as currently in effect” is entitled to a “certificate stating that the building or premises is a nonconforming use.” (R. 400). The applicable North Hempstead Town Code section further provides that such nonconforming building or structure is subject to the nonconforming use provisions of 70-208. See Section § 70-223(d)(2) (“The Commissioner of Buildings shall issue this certificate stating that the building or premises is a nonconforming use and all future construction and/or alteration will be regulated by § 70-208”) (emphasis supplied), reproduced at R. 400. Section 70-208(f) on which Respondents rely (reproduced at R. 396) provides: “A nonconforming building shall be extended, altered, enlarged, replaced, or moved only if such extension, alteration, enlargement, replacement, or move does not increase the existing nonconformity” (emphasis supplied). In sum, nothing in the Code suggests that a pre-existing building can change its use to a different use without being subject to a use variance (a nonsensical suggestion which would mean that every older retail building could be changed to a residential use, and every older residence could be changed into a business). The statutory reality is that the North Hempstead Town Code contains no provision indicating that a nonconforming “building” enjoys any sort of immunity 1900121615-1 from change of use and use variance rules. To the contrary, it provides in § 70- 208(G) that both nonconforming buildings and nonconforming uses are subject to the same limitation on the issuance of a variance: The existence of a nonconforming use or building, or the application thereto of the limitations set forth in this Article, shall not be deemed to result in practical difficulty or unnecessary hardship warranting any variance in the application of any provision of this chapter to such nonconforming use or building or to the land on which it is located (emphasis supplied). (R. 396). The cases on which Respondents rely in this respect, principally Dawson v. Zoning Board of Appeals of Town of Southold, 12 A. D.3d 444, 785 N.Y.S.2d 84 (2d Dept. 2004), not only involved completely different towns and different town codes, they concern whether the property owner had lost by abandonment and discontinuance the right to continue the nonconformity. See Dawson, supra; see also the case cited by Dawson, Amzalak v. Incorporated Vil. of Valley Stream, 220 N.Y.S.2d 113(Sup. Ct. Nassau County 1961) (also concerning whether the property owner had lost nonconforming rights by abandonment). Respondents also cite 1 Anderson, New York Zoning Law and Practice, (3d ed.) § 6.02, which states nothing on the subject other than that a pre-existing nonconformity as to area under certain codes may be treated differently than pre-existing nonconformities as to use. No case law or other authority cited by Respondents 2000121615-1 suggests that a pre-existing nonconformity of any kind somehow allows the property owner to change the use to a different use without complying with the zoning code or obtaining a use variance. (4) Legality of the Pre-Existing “Use” and Availability of “Conditional Use” Permit Respondents’ further attempt to distinguish Off Shore Restaurant fares no better. They rely on the fact that “Restaurant-Fast Food” is a “conditional use” under the local zoning code applicable to that area, as to which a conditional use permit can be sought. They contend that therefore “use” of the property as a restaurant is permissible and parking requirements should be treated as area variances for a lawfully permitted use. They rely on the above discussed Appellate Division case involving a house of worship in Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 (2d Dept. 2005). However, the Respondents’ arguments–that if the local law allows this type of business in the district, then parking requirements are area nonconformities and require only an area variance–was expressly rejected by this Court in Off Shore Restaurant. There, this Court specifically held that a use variance was required for a parking variance requested by a property owner who wished to convert a pre-existing nonconforming delicatessen into a cocktail lounge, even though “[t]he 2100121615-1 delicatessen and the cocktail lounge are each permitted uses in the applicable business zone.” Off Shore Rest., 30 N.Y.2d at 162, 331 N.Y.S.2d at 400. In addition, the Respondents’ argument in this respect is also expressly contrary to the Town of North Hempstead Code, which expressly provides at Section 70-208(c), that a preexisting nonconforming use cannot be changed to “conditional use” (such as a restaurant here, see R. 255, § 70-126(A)). Section 70-208(c) states: “A nonconforming use of a building or premises may be changed only to a use of a higher classification according to the provisions of this chapter. For purposes of this section, a change to a use which is a conditional use in the more restricted zone shall not be considered to be a change to a use of a higher classification” (R. 396). Moreover, as shown in Appellant’s Brief, if the Halperin Court’s decision was not based on religious use flexibility concerns, but instead on the notion that use variance rules only apply to the overall types of uses allowed in the zoning district, and not to the important features of that use such as traffic and parking congestion, it proposes an unworkable rule and one which this Court already confronted and rejected in Off Shore Restaurant. Such over-simplified reasoning mistakenly looks only to the overall category of use, and disregards all express subsidiary restrictions on the use of the 2200121615-1 property. And no boundary line is apparent for what use restrictions are to be deemed subsidiary such that they are relegated to area variance rules. Thus, to provide yet another example (in addition to the one given in our principal Appellant’s Brief regarding types of industrial uses restricted in an “industrial” district), the same flawed argument would apply to a zoning code which allows the overall category of “retail” uses in the area, but restricts “liquor stores,” “pool or billiards halls,” or “adult uses” in the area. All of the restrictions concerning those latter uses would be deemed mere area restrictions subsidiary to the allowed “retail” use. The correct and workable rule is the one Off Shore Restaurant resolved–that if the parking restriction pertains to use and type of use and extent of use, it is a use restriction. (5) Respondents also offer no basis to not apply stare decisis Contending (as shown, erroneously) that the Appellate Division’s holding in this case complied with Off Shore Restaurant, Respondents do not attempt to argue that this fully binding precedent should be overturned. As shown in our principal Appellant’s Brief, “legal questions, once settled, should not be reexamined every time they are presented”, especially because this “court is an institution, not merely a collection of individuals, and [] governing rules of law do not change merely because the personnel of the court changes.” People v. Bing, 2300121615-1 76 N.Y.2d 331, 337-338, 559 N.Y.S.2d 474 (1990). And this applies with even greater vigor in the context of land use precedents such as here. City of Buffalo v. Cargill, 44 N.Y.2d 7, 17, 403 N.Y.S.2d 473 (1978). Nothing which respondents have argued suggests Off Shore Restaurant is in any way unworkable, let alone so unworkable as to warrant its reconsideration. To the contrary, as shown, the holding there was correct and is the only one which appreciates and gives honest effect to the use character of off-street parking restrictions in a local code such as here. Respondents also identify no mischief or difficulty encountered by ZBA’s across this State in applying use variance rules to use-base off-street parking restrictions over 35 years since Off Shore Restaurant was decided. Accordingly, it is manifest that the Applicants’ property was a pre-existing nonconforming use, the nonconformity was as to parking space requirements, directly tied to use, and the Applicants were seeking a use variance to greatly expand that pre-existing nonconformity. As a matter of law a use variance was required. Off Shore Restaurant. Because Respondents essentially concede that no use variance could be granted, and it is manifest that the Applicants could never qualify for one, the ZBA’s determination granting merely an area variance must therefore be annulled and the determinations of the Courts and the ZBA below 2400121615-1 reversed. POINT II THE ZBA’S DETERMINATION WAS OTHERWISE ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND IRRATIONAL Parking and loading dock restrictions are critical to control traffic congestion in retail areas and are particularly vital to the businesses and property owners at this heavily trafficked Plandome Road location in the suburban hamlet of Manhasset, Long Island, which already suffers from acute vehicular congestion and extremely limited on-street parking for customers (R. 101; 59-67; 201-202; 204-205; 211; 215; 234; 293)9. Even if area variance rules were to apply, the ZBA’s grant of a total exemption to the local code’s requirement of 24 required parking spaces and a loading dock, was arbitrary and capricious, an abuse of discretion, and irrational. It wrongly shifted the traffic congestion and parking burdens and the real loss of business which that entails, onto the surrounding businesses in the area, who do comply with the zoning code. The respondents’ assertion that customers having to walk 80010 feet from a District municipal parking lot to the Restaurant is reasonable (Town’s 9See, fn. 3, supra. 10See explanation of distance calculations at pp. 26-28, infra. 2500121615-1 Respondent’s Brief at p. 37), or their contention that the absence of a loading dock for a Restaurant ordered by the ZBA to have refrigerated garbage room is rational (R. 83), is precisely the sort of determinations which appellate courts–including this Court–are well-positioned to overturn as legally arbitrary and irrational. Clark v. Board of Zoning Appeals, 301 N.Y. 8 (1950); Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 A.D.3d 842, 911 N.Y.S.2d 391 (2d Dept. 2010); Matter of Hampshire Mgmt. Co. v. Nadel, 241 A.D.2d 496, 660 N.Y.S.2d 64 (2d Dept. 1997); Preston v. Board of Appeals of Town of North Hempstead, 229 A.D.2d 585, 646 N.Y.S.2d 41 (2d Dept. 1996). The 800 foot distance of the municipal parking lots to the restaurant entrance is equivalent to nearly three football fields of play,11 and it was arbitrary and irrational for the ZBA to assume that the neighboring businesses and all available parking on Plandome Road will not be overwhelmed. The ZBA was advised that Colin Realty was objecting to the proposed Restaurant or its customers traversing/trespassing over the Colin Property in order to reach the Fradler Property from the municipal parking lots located 300 feet and more away (R. 79; 199-202; 239). The ZBA nevertheless assumed that in that 11An American football field of play is 300 feet in length. Rule 1 of the National Football League, available online at http://www.nfl.com/rulebook (providing that the 100 yard [300 foot] “area bounded by goal lines and sidelines is known as the Field of Play”). 2600121615-1 event, travel from the already distant municipal lots to the Restaurant could be accomplished by the customers and employees walking to the front of the Restaurant on Plandome Road (R. 79), a walking route which both sets of traffic engineers reported to the ZBA is at least 800 feet (R. 326; 329). As indicated, Colin Realty’s right to bar the Restaurant’s employees and customers from traversing the Colin Property to access the rear of the Fradler Premises was recently determined after trial in a related lawsuit, where the Court rejected Fradler’s claim to possess a prescriptive easement over the Colin Property to do so. Colin Realty Co., LLC v. Manhasset Pizza LLC, Fradler Realty Corporation, et al., Sup. Ct. Nassau County Index No. 2011-006563, decision dated November 8, 201[3] (available on e-courts at http://iapps.courts.state.ny.us/webcivil/ FCASJcaptcha). The Applicant's Brief misleadingly states that the “Manhasset Park District maintains two (2) municipal parking lots to the rear of the Premises and adjacent premises….”, quoting the supposed ZBA Findings of Fact (id.,p. 2) (emphasis supplied). In so contending, the Applicant leaves out the fact that the municipal lots are 300 feet away if measured in direct distance, and over 800 feet away when measured in the route which a pedestrian must travel (R. 41, 274, 326). For its part, the Town’s Brief states that metered parking lots are located “to the rear” of 2700121615-1 the subject premises, but admits that those lots are, in fact, a significant distance away from the Fradler Property (Town Respondent’s Brief at 12 [arguing that the metered parking is a “300-foot radius” away]). The Town’s “radius” figure is ‘as the crow flies’–it becomes 800 feet when the actual route to the front of the restaurant Plandome Road is calculated (R. 41, 274, 326), and the Town admits this at page 37 footnote 10 of its Respondent’s Brief. Aside from the distant municipal lots, the Town again argues (as it did before the Appellate Division) that the applicant’s employees and customers can park in the private property parking spaces provided by the adjoining retail businesses for their own customers (Town’s Brief at 12 [citing R. 187-191]). This outrageous suggestion of a trespass was not even adopted by the Applicants’ own traffic engineer or by the ZBA. The Applicants’ engineer stated outright that “We only looked at the metered parking. We did not take into account any of the employee parking permitted areas or any of the private parking for the other businesses that are currently operating out of these storefronts along Plandone Road” (R. 187). Aside from that, the Town cites in its Brief the 55 spaces “in the immediate vicinity” on the extremely busy Planome Road and 5 spaces located on a side street, thereby ignoring the fact that this very limited number of spaces in the already congested and highly trafficked area is by no means available at the 2800121615-1 times when the proposed new Restaurant will have the most impact on the neighboring retail businesses–during their usual daytime business hours12. In fact, putting aside the positive “spin” he attempted to place on the statistics which were espoused even by his firm, the applicant’s own traffic engineer testified that during the peak weekday lunch hour, even the distant lots are already significantly burdened, such that even after including the number of spaces in the distant municipal lots only 32 spaces remained (R. 188 [admitted that these claimed 32 spaces are “in the area” which he defined as including the distant lots). The adjoining businesses on Plandome Road, already suffering from severely limited on-street parking, are therefore directly made to suffer the consequence of the Applicant’s violation of the Town Code mandate that it provide its own parking for its own customers and employees, so that the limited on-street parking is available equally to all the businesses and their customers. Remarkably, the Town even admits this in its brief (Town Respondent’s Brief at 13 [“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”]). 12See, fn. 3, supra. 2900121615-1 The Restaurant will by all accounts serve lunch, and the Applicants self- serving estimation that its lunch traffic will be limited, effectively asks this Court to rest a permanent zoning determination on a bet that the proposed Restaurant and any restaurant which will ever occupy the premises in the future will not succeed or thrive. The Town’s contention in its Brief that Colin Realty did not separately sue the Applicants in Court until after the ZBA hearing was held, to enjoin the Applicants from having their employees and customers trespass over Colin Realty’s land, ignores the fact that ZBA heard direct testimony from Colin’s representative at the hearing that access to the Restaurant’s rear entrance would be a trespass onto Colin Realty’s property (R. 79, 97-98, 199-202), and also ignores the fact that a copy of Colin Realty’s complaint in its separate action against the Applicants to enjoin that trespass was actually forwarded to the ZBA as soon as it was filed and long before the ZBA rendered its determination (R. 91). With respect to the loading dock, the Applicant’s brief misleadingly points to testimony of its own attorney (its very attorney herein) at the ZBA hearing “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) (Applicant Respondent’s Brief p. 31). In so claiming, the Applicant’s Brief deliberately 3000121615-1 ignores that the ZBA has specifically directed that Fradler must install an indoor refrigerated garbage room for the proposed restaurant (R. 83), and Fradler’s owner has since conceded in Court, under oath, that as a result, his “understanding [is]…that trash would be picked up from the rear parking lot on Monday, Wednesday and Friday, the same as other [Fradler] tenants and that any additional trash removal would be through the front entrance” (see Amended Short Form Order of Hon. Karen V. Murphy in the related action Colin Realty Co. v. Manhasset Pizza LLC, Nassau County Clerk's Index No. 2011-06563 [available on e-courts at http://iapps.courts.state.ny.us/ webcivil/FCASJcaptcha]). Moreover, the Respondents’ Briefs do not and cannot contest the fact that Plandome Road where the Fradler Property is located is already heavily congested, such that enforcement of the off-street parking and loading dock requirements of the zoning code is especially critical to serving the purposes of the zoning code, to preserve the community character, and avoid adverse impacts to the neighborhood. Town Law 267-b(3)(b). The exceptionally congested character of the area of downtown Manhasset where the Applicant's premises is located and the severe impact of inadequate parking was acknowledged by Fradler’s own counsel herein who responded to a ZBA Member's observation that “you've got certain times of Plandome Road where…you know…a truck parked in the middle of Plandome 3100121615-1 Road would create problems” by stating “it happens all the time unfortunately. Just driving here this morning there was a tractor trailer unloading on Plandome Road. You know, that's a problem when you don't have, you know, parking” (R. 239). Thus, even if “area” variance rules were to apply, the determination of the ZBA was arbitrary and capricious as a matter of law and must be annulled. Clark v. Board of Zoning Appeals, 301 N.Y. 8 (1950); Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 A.D.3d 842, 911 N.Y.S.2d 391 (2d Dept. 2010); Matter of Hampshire Mgmt. Co. v. Nadel, 241 A.D.2d 496, 660 N.Y.S.2d 64 (2d Dept. 1997); Preston v. Board of Appeals of Town of North Hempstead, 229 A.D.2d 585, 646 N.Y.S.2d 41 (2d Dept. 1996). 3200121615-1 POINT III THE ZBA’S REFUSAL TO CONSIDER OBJECTIONS BY LOCAL COMMUNITY PROPERTY OWNERS AND BUSINESSES WAS ARBITRARY AND CAPRICIOUS As shown in Appellant’s Brief, the ZBA failed to take into account the reasoned objections to the Application, as set forth in a Petition (filed after the close of the hearing, but prior to the ZBA Decision) signed by 32 adjacent businesses and property owners located within 500' of the subject premises (the “Community Petition”, R. 59-70), complaining of the inevitable substantial increase on traffic and parking demands (R. 59-70, 86-87; 94-95; 101). Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 264 (1995). Respondents fail to overcome the fact that the ZBA refused and failed to consider the Community Petition even though its Decision admits that after the March 23, 2011 date the hearing was held, it received and considered other evidence. R. 73; W.W.W. Associates, Inc. v. Rettaliata, 175 A.D.2d 133, 572 N.Y.S.2d 22 (2d Dept. 1991) (board properly consider submission made after the date of the hearing but before the date of decision, when it left the record open and accepted other submissions). Respondents’ argument that the post-hearing submissions which the Board accepted were limited in nature, admits that the record was left open. 3300121615-1 Respondent’s claim that the Community Petitions were somehow “conclusory”, is completely contrary to the Record. The actual Petitions were submitted to the ZBA (R. 59-70, 86-87; 94-95; 101). Those Petitions were made by scores of neighboring retail store operators and owners having first-hand knowledge of the traffic congestion which their businesses already suffer. The Petitions each asserted, based on the store operators and owners’ personal knowledge that “There is currently inadequate parking for our customers and invitees during normal business hours and we retailers and owners object to [the granting of the variance and other relief]” (R. 59-70). The Respondent’s claim that the retailers and owners’ first-hand accounts regarding their own adjacent businesses is somehow incompetent in the face of the Applicant’s traffic “study” (a study which was refutted by another traffic study of a qualified engineering firm submitted by the objectors to the application, R. 326), is legally wrong. It is settled that a neighbor’s assertions based on their actual day-to-day observations (especially regarding their own businesses) present fully competent evidence which is not in any manner “generalized”. Millennium Custom Homes, Inc. v. Young, 58 A.D.3d 740, 873 N.Y.S.2d 91 (2d Dept. 2009); Franklin Square Donut System, LLC, 63 A.D.3d 927, 881 N.Y.S.2d 163 (2d Dept. 2009) (objections by community residents neighboring development based on “eyewitness testimony of 3400121615-1 actual conditions at the premises” substantiated finding that variance would cause “extreme traffic congestion”). The ZBA's determination and refusal to consider the Community Petitions was arbitrary and capricious, an abuse of discretion, irrational, and illegal, and must be annulled. 3500121615-1 Conclusion The Order of the Appellate Division should be reversed, the Amended Petition granted, and the ZBA Determination annulled. Dated: Garden City, New York January 16, 2014 Respectfully Submitted, ROSENBERG CALICA & BIRNEY LLP By:_______________________________ Robert M. Calica Attorneys for Plaintiff-Petitioner-Appellant 100 Garden City Plaza, Suite 408 Garden City, New York 11530 (516) 747-7400 Of Counsel: Robert M. Calica Judah Serfaty 3600121615-1