North Shore Steak House, Inc. v. Board of Appeals of Incorporated Village of Thomaston

• Citation: 30 N.Y.2d 238,282 N.E.2d 606,331 N.Y.S.2d 645
• Parties: , 282 N.E.2d 606 In the Matter of NORTH SHORE STEAK HOUSE, INC., Appellant, v. BOARD OF APPEALS OF the INCORPORATED VILLAGE OF THOMASTON et al., Respondents.
• Decision Date: 24 March 1972
• Court: New York Court of Appeals

Page 645

331 N.Y.S.2d 645

30 N.Y.2d 238, 282 N.E.2d 606

In the Matter of NORTH SHORE STEAK HOUSE, INC., Appellant, v. BOARD OF APPEALS OF the INCORPORATED VILLAGE OF THOMASTON et al., Respondents.

Court of Appeals of New York.

March 24, 1972.

Charles R. Van de Walle, New York City, and James Sawyer, for appellant.

Bruce D. Mencher, for respondents.

BURKE, Judge.

In this article 78 proceeding, appellant North Shore Steak House, Inc. (hereafter North Shore) seeks to review a decision of the Board of Appeals of the Village of Thomaston (hereafter the Board) denying North Shore's application for: (1) a special exception permit to extend its parking area, on its split zoned lot, 25 feet into a single-family residence district, and (2) a hardship variance permitting accessory parking on the residentially zoned property beyond the 25-foot strip.

North Shore is the lessee of a plot of land used for a restaurant on the northwest corner of Northern Boulevard and Summer Street, in the Village of Thomaston in Great Neck, Long Island. The lease term is from May 1, 1961 to February 28, 2003. The premises front 181 feet on Northern Boulevard, a heavily traveled State highway, and have a depth of 286 feet along Summer Street. The zoning map provides that the Business 'B' District has a depth of 200 feet and, therefore, the lot is split zoned, the rear 86 feet being in Residence 'B' District zoned for single-family homes. The plot has been in single and separate ownership since 1903 and is improved with a main building, used as a restaurant since 1940, and an old stable, in the back of the premises, approximately 5 feet from the rear line.

All available space within the 200 feet business district has been blacktopped for parking during the past nine years. North Shore has made two small extensions to the main building which did not increase the seating capacity but did result in the loss of several parking spaces. The restaurant has seats for 170 people at the tables and an additional 18 at the bar. At present, there are parking spaces for 75 to 85 cars.

In December, 1969, North Shore, joined by the owner-lessor, Herman Weinman, made an application for a special exception permit, pursuant to article X ( § 3) of the Zoning Ordinance, which states:

'Section 3. The May in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, and in harmony with the general purpose and intent of this ordinance, in addition to the powers and duties set forth in the Village Law of the State of New York and such powers as are heretofore in this ordinance given to them:

'(e) Where a zone boundary line divides a lot in single ownership at the effective date of this ordinance affecting a use district, as the case may be, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five (25) feet beyond the boundary line of the greater restricted zone.' (emphasis supplied). In addition, the application sought a variance for the balance of the rear 86 feet beyond the 25-foot strip, except for a 50-foot by 100-foot plot on the northeast corner, to be improved with a new one-family house fronting on Summer Street.

In rejecting the application for a variance, the Board found, among others, that (1) the premises were not unique or different from other split zoned property in the village (2) that the hardship, if any, was self-created (3) that the evidence that the variance would have an adverse effect on the adjoining property was not rebutted and (4) that a ratio of one car to every three or four seats is all that should be reasonably required. Based on these findings, the Board also concluded, without any additional findings or conditions, that the special exceptions permit 'would not be in harmony with the general purpose and intent of the zoning plan and scheme'.

Special Term, in sustaining the Board's determination, did so, not on the merits, but on the basis that a prior application by the owner-lessor in 1957 was Res judicata in the absence of 'changed circumstances'. The majority in the Appellate Division did not rely on this rationale but conclude that the record did not support the view that the residential portion of the property could not be used for that purpose. In addition, citing Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 226 N.Y.S.2d 374, 181 N.E.2d 407, it held there was a reasonable basis for the denial of the special exception permit.

In his dissent, Justice Gulotta agreed with the majority with respect to the denial of the variance but determined that the denial of the special exception permit was arbitrary and capricious since the Board 'erroneously applied the same test to the special exception application' as that required for a hardship variance.

On this record, it cannot be said that the hardship variance was improperly denied. It was sought for accessory parking on the northwest corner of the property (measuring approximately 61 feet by 81 feet) beyond the 25-foot special exception area and next to the 50-foot by 100-foot plot on the northeast corner on which the ownerlessor planned to erect a new, conforming one-family house fronting on Summer Street. North Shore's contention, no doubt true, that this plot is more valuable as accessory parking is insufficient to warrant a hardship variance since the property, located in a residential zone, may be reasonably employed for that use as evidenced by the proposed new house on the adjoining parcel (Matter of Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851; Natter of Crossroads Recreation v. Broz, 4 N.Y.2d 39, 46, 172 N.Y.S.2d 129, 134, 149 N.E.2d 65, 68; Matter of Forrest v. Evershed, 7 N.Y.2d 256, 196 N.Y.S.2d 958, 164 N.E.2d 841).

The denial of the special exception permit, based on factual findings used to support denial of the variance, ignores the fundamental difference between a variance and a special exception permit. A variance is an authority to a property owner to use property in a manner forbidden by the ordinance while a special exception allows the property owner to put his property to a use expressly permitted by the ordinance. The...