Development

Court Upholds Conditions Imposed on Zoning Variance
Matter of Bonefish Grill, LLC v. Zoning Board of Appeals
NYLJ 9/29/17, p. 26, col.3
AppDiv, Second Dept.
(memorandum opinion)

In restaurant owner's article 78 proceeding challenging conditions imposed on a zoning variance, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition annulling the conditions. The Appellate Division reversed and denied the petition, holding that the conditions were directly related to the proposed restaurant use and were designed to protect neighboring properties.

Restaurant owner planned to demolish the existing building on a leased parcel to build a 5400-square -foot restaurant. The zoning ordinance would have required 54 off-street parking spaces, which the parcel could not accommodate. Restaurant owner then proposed to merge the lot with an adjacent one to take advantage of a provision of the zoning ordinance exempting restaurants from off-street parking requirements whenever the restaurant abuts a municipal parking field. The adjacent lot abuts a municipal field. Restaurant owner then obtained a building permit, and when the restaurant was substantially completed, the building department discovered that the lot merger had never been completed.

The building department then directed restaurant owner to seek a variance from the off-street parking requirements. Restaurant owner did so, presenting the ZBA with a license allowing the restaurant to use 40 spaces on the adjoining property between 4 p.m. and 12:30 a.m. on Mondays through Fridays. The ZBA granted the variance on condition that landowner operate the restaurant only during those hours, and that valet parking be mandatory. Restaurant owner then brought this article 78 proceeding challenging the conditions, and Supreme Court granted the petition.

In reversing, the Appellate Division held that the ZBA's conditions were proper because they were intended to protect neighboring commercial properties from the anticipated increase in traffic and parking congestion caused by the new restaurant. The Appellate Division also rejected Supreme Court's conclusion that the ZBA's rationale was not supported by empirical or testimonial evidence. In particular, the court held that the ZBA was entitled to rely on the testimony of local store owners, and on the personal knowledge of members of the ZBA.

COMMENT

When an applicant presents no scientific data to refute neighbor objections, a zoning board can rely on neighbors' testimony to deny the application when the testimony is corroborated by documentary or other objective evidence, but not when the neighbors simply voice their subjective opposition to the project. In Marina's Edge Owner's Corp. v. City of New Rochelle Zoning Bd. of Appeals, 129 A.D.3d 841, where neighbor's testimony was uncorroborated by any documentary evidence, the court held that the neighbor's objection was generalized community opposition, on which the board cannot rely to deny the application. Id. at 843-44. In that case, the applicant sought a variance to build a parking facility Id. at 841. The court held that the board had improperly denied the application when it simply adopted neighboring property owners' subjective opinions about the negative aesthetics of a parking lot. Id. at 841-43.

In contrast, in Ifrah v. Utschig, 98 N.Y.2d 304, the court upheld a variance denial when the board relied on the neighbors' testimony, corroborated, by maps and particularized evidence of traffic flow, that the subdivision would disturb the distinctive architectural style on the street and that the site was located at the confluence of several existing driveways was corroborated. Id. at 308-9. Similarly, in Pecoraro v. Bd. of Appeals of Town of Hempstead, 2 N.Y.3d 608, where the applicant's expert testified only that four parcels behind the subject lot were no wider than applicant's proposed lot, the court upheld the board's denial of a variance based on its findings that within the 200-foot radius of the subject building, the area was overwhelmingly conforming to the zoning requirements, that the character of the neighborhood, in terms of the lot width, had not changed since 1969, and that the lot would be the only one within the 200-foot radius on Madison Avenue that has a width as narrow as 40 feet. Id. at 614.

However, when an applicant presents expert testimony supported by scientific data, neighbor's testimony or the board's knowledge uncorroborated by any scientific data is insufficient to rebut the expert testimony. For instance, in Serota Smithtown LLC v. Town of Smithtown Bd. of Zoning Appeals, 2014 WL 1328203, the court invalidated denial of a variance to allow outdoor dining and a variance to permit 22 loudspeakers at locations when the applicant's expert produced scientific evidence that the “sound from Sonic's outdoor speakers would be statistically inaudible from 48 feet away and the nearest residence is more than 100 feet away.” Id. at *2,10. In light of the expert testimony, the board's finding that the restaurant generated more noise than do typical restaurants was not adequately supported by resident testimony based only on newspaper clippings and YouTube videos.

Court Upholds Conditions Imposed on Zoning Variance
Matter of Bonefish Grill, LLC v. Zoning Board of Appeals
NYLJ 9/29/17, p. 26, col.3
AppDiv, Second Dept.
(memorandum opinion)

In restaurant owner's article 78 proceeding challenging conditions imposed on a zoning variance, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition annulling the conditions. The Appellate Division reversed and denied the petition, holding that the conditions were directly related to the proposed restaurant use and were designed to protect neighboring properties.

Restaurant owner planned to demolish the existing building on a leased parcel to build a 5400-square -foot restaurant. The zoning ordinance would have required 54 off-street parking spaces, which the parcel could not accommodate. Restaurant owner then proposed to merge the lot with an adjacent one to take advantage of a provision of the zoning ordinance exempting restaurants from off-street parking requirements whenever the restaurant abuts a municipal parking field. The adjacent lot abuts a municipal field. Restaurant owner then obtained a building permit, and when the restaurant was substantially completed, the building department discovered that the lot merger had never been completed.

The building department then directed restaurant owner to seek a variance from the off-street parking requirements. Restaurant owner did so, presenting the ZBA with a license allowing the restaurant to use 40 spaces on the adjoining property between 4 p.m. and 12:30 a.m. on Mondays through Fridays. The ZBA granted the variance on condition that landowner operate the restaurant only during those hours, and that valet parking be mandatory. Restaurant owner then brought this article 78 proceeding challenging the conditions, and Supreme Court granted the petition.

In reversing, the Appellate Division held that the ZBA's conditions were proper because they were intended to protect neighboring commercial properties from the anticipated increase in traffic and parking congestion caused by the new restaurant. The Appellate Division also rejected Supreme Court's conclusion that the ZBA's rationale was not supported by empirical or testimonial evidence. In particular, the court held that the ZBA was entitled to rely on the testimony of local store owners, and on the personal knowledge of members of the ZBA.

COMMENT

When an applicant presents no scientific data to refute neighbor objections, a zoning board can rely on neighbors' testimony to deny the application when the testimony is corroborated by documentary or other objective evidence, but not when the neighbors simply voice their subjective opposition to the project. In Marina's Edge Owner's Corp. v. City of New Rochelle Zoning Bd. of Appeals, 129 A.D.3d 841, where neighbor's testimony was uncorroborated by any documentary evidence, the court held that the neighbor's objection was generalized community opposition, on which the board cannot rely to deny the application. Id. at 843-44. In that case, the applicant sought a variance to build a parking facility Id. at 841. The court held that the board had improperly denied the application when it simply adopted neighboring property owners' subjective opinions about the negative aesthetics of a parking lot. Id. at 841-43.

In contrast, in Ifrah v. Utschig, 98 N.Y.2d 304, the court upheld a variance denial when the board relied on the neighbors' testimony, corroborated, by maps and particularized evidence of traffic flow, that the subdivision would disturb the distinctive architectural style on the street and that the site was located at the confluence of several existing driveways was corroborated. Id. at 308-9. Similarly, in Pecoraro v. Bd. of Appeals of Town of Hempstead, 2 N.Y.3d 608, where the applicant's expert testified only that four parcels behind the subject lot were no wider than applicant's proposed lot, the court upheld the board's denial of a variance based on its findings that within the 200-foot radius of the subject building, the area was overwhelmingly conforming to the zoning requirements, that the character of the neighborhood, in terms of the lot width, had not changed since 1969, and that the lot would be the only one within the 200-foot radius on Madison Avenue that has a width as narrow as 40 feet. Id. at 614.

However, when an applicant presents expert testimony supported by scientific data, neighbor's testimony or the board's knowledge uncorroborated by any scientific data is insufficient to rebut the expert testimony. For instance, in Serota Smithtown LLC v. Town of Smithtown Bd. of Zoning Appeals, 2014 WL 1328203, the court invalidated denial of a variance to allow outdoor dining and a variance to permit 22 loudspeakers at locations when the applicant's expert produced scientific evidence that the “sound from Sonic's outdoor speakers would be statistically inaudible from 48 feet away and the nearest residence is more than 100 feet away.” Id. at *2,10. In light of the expert testimony, the board's finding that the restaurant generated more noise than do typical restaurants was not adequately supported by resident testimony based only on newspaper clippings and YouTube videos.