November 15, 2017

In the matter of Bonefish Grill, LLC v. Zoning Board of Appeals of the Village of Rockville Centre, 2017 NY Slip Op 06643 (2nd Dept. 2017), the Appellate Division, Second Department, reversed the trial court, finding that the Zoning Board of Appeals’ (ZBA) conditions requiring valet parking and limiting the restaurant’s hours of operation to coincide with the hours of access to 40 parking spaces on an adjacent property were proper because the conditions were related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the restaurant’s operation, such as the anticipated increase in traffic congestion and parking problems.

In order to remedy the lack of off-street parking spaces, the restaurant proposed to merge the subject property’s lot with the adjoining property.

The Village’s Building Department issued a building permit to the petitioner but when the petitioner’s restaurant was substantially completed, the Building Department discovered that petitioner failed to merge the subject property with the adjoining property.

Consequently, before issuing a certificate of occupancy, the Building Department required a parking variance. Petitioner applied to the ZBA, relying on a license agreement which allowed the petitioner access to the adjoining property’s 40 exclusive parking spaces between 4:00 p.m. and 12:30 a.m. on Mondays through Fridays.

The ZBA granted the parking variance but imposed several conditions, including that the restaurant’s operating hours be restricted to 4:00 p.m. through 12:30 a.m. on Mondays through Fridays (consistent with the license agreement), and that valet parking be mandatory. The ZBA also granted the petitioner’s application for a substantial occupancy permit, imposing the same conditions.

The Appellate Division held that, contrary to the Supreme Court’s determination, the ZBA’s rationale was supported by empirical and testimonial evidence.  The ZBA was entitled to rely on the testimony of the local store owners, since “a zoning board’s reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition.”  Their testimony was supported by the observation of the petitioner’s own expert that there is a great demand for parking in the area of the subject restaurant. Members of the ZBA were also entitled to rely on their own personal knowledge of the area in reaching their decision.

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