Burke v. Denison

• Decision Date: 07 April 1994
• Citation: 609 N.Y.S.2d 959,203 A.D.2d 642
• Parties: In the Matter of Thomas J. BURKE, Respondent, v. Julie DENISON, as Chairperson of the Zoning Board of Appeals of the City of Albany, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 959

609 N.Y.S.2d 959

203 A.D.2d 642

In the Matter of Thomas J. BURKE, Respondent, v. Julie DENISON, as Chairperson of the Zoning Board of Appeals of the City of Albany, et al Appellants.

Supreme Court, Appellate Division Third Department.

April 7, 1994.

Vincent J. McArdle Jr., Corp. Counsel (Thomas A. Shepardson, of counsel), Albany, for appellants.

Lynch and Lynch (Peter A. Lynch, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Conway, J.), entered September 15, 1993 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Board of Zoning Appeals of the City of Albany denying petitioner a special use permit.

In March 1993, petitioner applied for a building permit to construct a 7,200-square-foot building in the City of Albany for use as commercial office space and a restaurant. It was determined that the project required a special use permit, and petitioner thereafter applied for a permit to construct a 3,600-square-foot building for use as a restaurant/take-out establishment. Under petitioner's proposal, the building would house three separate food franchises, each having take-out capability, with a 75-seat common eating area.

Following a public hearing, respondent Board of Zoning Appeals of the City of Albany (hereinafter the Board) denied petitioner's application finding, inter alia, that the proposed use was incompatible with the character of the surrounding neighborhood, had inadequate off-street parking and would significantly increase local traffic. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the determination. Supreme Court granted petitioner's application and this appeal by respondents followed.

It is well settled that "[t]he inclusion of [a] permitted use in [an] ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606; see, Matter of Veysey v. Zoning Bd. of Appeals of City of Glens Falls, 154 A.D.2d 819, 820, 546 N.Y.S.2d 254, lv. denied, 75 N.Y.2d 708, 554 N.Y.S.2d 833, 553 N.E.2d 1343). Here, the record indicates that the property in question is located in a C-1 neighborhood commercial district where restaurants are a permitted use and take-out and/or delivery restaurants are permitted by special use permit. Thus, for the Board to deny petitioner's application, it was required to set forth "specific, reasonable grounds (supported by evidence) for concluding that the use, though permitted, [was] not desirable at [that] particular location" (Matter of Market Sq. Props. v. Town of Guilderland Zoning Bd. of Appeals, 109 A.D.2d 164, 166, 491 N.Y.S.2d 519, affd., 66 N.Y.2d 893, 498 N.Y.S.2d 772, 489 N.E.2d 741).

Based upon our review of the record as a whole, we are unable to conclude that Supreme Court erred in finding that the Board's determination lacked a rational basis and was not supported by substantial evidence (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756; Matter of Hanson v. Valenty, 198 A.D.2d 598, 603 N.Y.S.2d 98). Although the Board determined that the proposed use was incompatible with the character of the surrounding neighborhood, the record indicates that the site in question is surrounded by commercial establishments and, as Supreme Court observed, there is no requirement in the Albany Zoning Ordinance that the proposed use be a "traditional" one. With respect to the Board's finding that the proposed use would generate "a significant increase in weekday traffic at the site", the record as a whole simply fails to support this conclusion. Petitioner's engineer calculated the average weekday traffic movements for both the current use (a gas station) and the proposed use and concluded that the proposed use would not have any significant effect upon local traffic. The only testimony in opposition to this view came in the form of generalized community...