Sunrise Plaza Associates, L.P. v. Town Bd. of Town of Babylon

• Decision Date: 11 May 1998
• Citation: 673 N.Y.S.2d 165,250 A.D.2d 690
• Parties: , 1998 N.Y. Slip Op. 4657 In the Matter of SUNRISE PLAZA ASSOCIATES, L.P., Appellant, v. TOWN BOARD OF THE TOWN OF BABYLON, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 165

673 N.Y.S.2d 165

250 A.D.2d 690, 1998 N.Y. Slip Op. 4657

In the Matter of SUNRISE PLAZA ASSOCIATES, L.P., Appellant, v. TOWN BOARD OF THE TOWN OF BABYLON, et al., Respondents.

Supreme Court, Appellate Division Second Department.

May 11, 1998.

Morton Weber and Associates, Melville (John A. Harras and Kenneth A. Brown, of counsel), for appellant.

John J. Burke, Jr., Town Attorney, Lindenhurst (Michael P. Mercurio, of counsel), for respondents Town Board of the Town of Babylon and Town of Babylon Zoning Board of Appeals.

Eugene Weisbein, Garden City (James W. Cooke, of counsel), for respondent International Summit Equities Corp.

Before ROSENBLATT, J.P., and MILLER, RITTER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review (1) a resolution of the respondent Town Board of the Town of Babylon dated October 24, 1995, which, after a hearing, granted the application of the respondent International Summit Equities Corp. for a special use permit to operate a proposed restaurant, and (2) a determination by the Town of Babylon Zoning Board of Appeals dated November 16, 1995, which, after a hearing, granted the application of the respondent International Summit Equities Corp. for a variance to reduce the number of required on-site parking spaces in connection with the operation of a proposed restaurant, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Floyd, J.), entered October 8, 1996, which denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with one bill of costs, payable by the appellant.

The petitioner Sunrise Plaza Associates, L.P. (hereinafter Sunrise), and the respondent International Summit Equities Corp. (hereinafter Summit) own contiguous parcels of real property located in North Lindenhurst, in the Town of Babylon, on which each operates part of what appears to be a single shopping center. The two properties are not separated by any fences or lines of demarcation, and they share parking pursuant to a cross-easement agreement. The single shopping center located on both contiguous parcels is operated under the single name of "Sunrise Plaza".

Following protracted litigation (see, e.g., Sunrise Plaza Assocs. v. International Summit Equities Corp., 212 A.D.2d 690, 622 N.Y.S.2d 596; Matter of International Summit Equities Corp. v. Van Schoor, 192 A.D.2d 607, 596 N.Y.S.2d 729; Matter of International Summit Equities Corp. v. Van Schoor, 166 A.D.2d 531, 560 N.Y.S.2d 811; Sunrise Plaza Assocs. v. International Summit Equities Corp., 152 A.D.2d 561, 543 N.Y.S.2d 490), Summit earned the right to erect an additional building on its property. It desired to lease that building for use as an Outback Steakhouse Restaurant.

Pursuant to Town of Babylon Code § 213-129(G) (hereinafter the Code), the proposed restaurant was a permitted use, subject to the issuance of a special use permit. Summit submitted an application for a special use permit to the respondent Town Board of the Town of Babylon (hereinafter the Town Board). Contemporaneously therewith, Summit applied to the respondent Town of Babylon Zoning Board of Appeals (hereinafter the Zoning Board) for a variance to reduce the number of off-street parking spaces required under the Code.

At the hearing conducted before the Zoning Board, there was evidence that despite a mathematical shortage of spaces on Summit's property as calculated pursuant to the relevant provisions of the Code, there was more than adequate parking available to accommodate restaurant patrons, because the proposed restaurant would be open at times when many of the other businesses in the shopping center would be closed. There was also evidence tending to demonstrate that the proposed tenant of the restaurant was the only entity interested in leasing the premises, and thus the award of a variance was necessary for Summit to avoid economic hardship. At the hearing before the Town Board, there was evidence that the proposed steakhouse would be a family restaurant, and would not be detrimental to the surrounding area.

On October 5, 1995, the Zoning Board voted to grant Summit's application for a parking variance. In a written decision dated November 16, 1995, the Zoning Board addressed the issue of whether the requested parking variance was more accurately characterized as an area variance or a use variance, eventually treating the application as one for a use variance, and making findings in accordance with Town Law § 267-b(2). Among other things, the Zoning Board determined that strict application of the parking requirements under the Code would cause Summit to suffer unnecessary hardship, since it would preclude the only profitable use of the new building. Furthermore, the Zoning Board determined that adequate parking existed on Summit's property even without considering the parking available on the adjacent Sunrise property, and that the character of the neighborhood would not be adversely affected. Following the Zoning Board's vote, by resolution dated October 24, 1995, the Town Board granted Summit a special use permit authorizing the operation of a restaurant, subject to certain conditions. The Supreme Court rejected the petition challenging these determinations, and we now affirm.

In considering Summit's application for a parking variance, the Zoning Board noted that variances from zoning ordinances dictating the number of off-street parking spaces required for a given commercial establishment "do not fit neatly into the categories of area variances or use variances". The Court of Appeals made a similar observation in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 169, 331 N.Y.S.2d 397, 282 N.E.2d 299, and parking variances have been construed inconsistently both as use variances (see, Matter of Off Shore Rest. Corp. v. Linden, supra), and as area variances in factually analogous cases (see, Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 322 N.Y.S.2d 696, 271 N.E.2d 537; Merrick Gables Assn. v. Fields, 143 A.D.2d 117, 531 N.Y.S.2d 581; Rice, Supp.Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 61, Town Law § 267-b, 1997-1998 Pocket Part, at 126-127). Here, the Supreme Court characterized the requested parking variance as an area variance. However, we need not decide which type of variance is at issue because we find that the variance was properly granted regardless of its characterization. The evidence adduced by Summit satisfied the requirements for the granting of an area variance pursuant to ...