C & B Realty #3, LLC v. Van Loan

• Decision Date: 24 August 2022
• Docket Number: 2019–09903,Index No. 976/18
• Citation: 208 A.D.3d 778,173 N.Y.S.3d 637
• Parties: In the Matter of C & B REALTY #3, LLC, respondent, v. Arlene VAN LOAN, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 778
173 N.Y.S.3d 637

In the Matter of C & B REALTY #3, LLC, respondent,
v.
Arlene VAN LOAN, etc., et al., appellants.

2019–09903
Index No. 976/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 21, 2022
August 24, 2022

173 N.Y.S.3d 638

Walsh Markus McDougal & DeBellis, LLP, Garden City, NY (Matthew G. White of counsel), for appellants.

Thomas A. Abbate, P.C., Plainview, NY, for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

208 A.D.3d 778

In a proceeding pursuant to CPLR article 78 to review a determination

208 A.D.3d 779

of the Zoning Board of Appeals of the Town of Oyster Bay dated April 26, 2018, which, after a hearing, denied the petitioner's application for a parking variance and determined that a certain building permit was invalid, Arlene Van Loan, Lewis J. Yevoli, Susan Cloninger, Rita Byrne, Lois Schmitt, Kathleen Mulligan, and John J. Fanning appeal from a judgment of the Supreme Court, Nassau County (Thomas Feinman, J.), entered June 11, 2019. The judgment granted the petition, annulled the determination, and, in effect, directed the Zoning Board of Appeals of the Town of Oyster Bay to grant the application for a parking variance.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The petitioner owns property in the Town of Oyster Bay, on which it operates a shopping center. In 2014, the petitioner received a building permit to construct additional commercial space in the parking lot of the premises, which permit was renewed several times. The petitioner finally commenced work on the project in 2017. Shortly thereafter, the Town issued a notice of violation and stop-work order, as it had determined that the petitioner's project did not comply with off-street parking requirements. Specifically, the petitioner's plan provided for 557 off-street parking spaces, whereas 624 spaces were required pursuant to the Code of the Town of Oyster Bay (see Code of the Town of Oyster Bay §§ 246–8.2.1, 246–2.4; hereinafter the Town Code).

The petitioner then filed an application for a variance seeking relief from the relevant provisions of the Town Code and permitting the proposed 557 parking spaces. After a hearing, the Town's Zoning Board of Appeals (hereinafter the ZBA) denied the petitioner's application for a variance, and further determined that the permit did not confer any rights on the petitioner as it had been invalid when issued. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul the ZBA's determination, asserting that it lacked a rational basis, was arbitrary and capricious, and constituted a deprivation of vested rights. The Supreme...