Posted by: Patricia Salkin | June 15, 2013

NY Appellate Court Upholds Area Variances for Pizza Parlor

Manhasset Pizza, LLC (Manhasset Pizza) desired  to convert a vacant storefront into a 45-seat full service dine-in restaurant on Plandome Road in the Town of North Hempstead. The storefront had previous been occupied as a gift shop, a dry cleaning establishment and a take-out food store. However, the premises is nonconforming because at the time of construction the Code of the Town did not require any parking or loading zone requirement. Since the erection of the building, the Code has  been amended to require parking spaces be created for new uses. The Code now states that “proposed restaurants are required to provide one off-street parking space for every four seats or four persons “which [or who] can be legally accommodated” plus one space per employee.” Additionally, restaurant uses are permitted inside the zoning district subject to the issuance of a conditional use permit.

Since Manhasset Pizza’s proposal included no parking spaces and no loading zones, it needed variances  along with a conditional use permit to operate. The ZBA granted the variances and conditional permit, and an adjacent property owner, Colin Realty Co., LLC (Colin) filed a petition to annul the determination and for a judgment declaring, in effect, that the proposed project required a use variance. The trial court dismissed the petition and Colin appealed

The Court concluded that the ZBA properly determined the variances Manhasset Pizza sought were to be treated as applications for area variances under the Town Code and were upheld because the ZBA engaged in the required balancing test .The Court further noted that members of the ZBA used their own personal knowledge of the area, along with testimony from Manhasset Pizza’s traffic engineer that ample parking existed to support the proposed restaurant. Additionally with respect to parking, Colin’s own retained traffic engineer testified that even though the restaurant would crowd on-street parking, there would be parking spaces available in the nearby municipal lots to support the parking needs of the restaurant.

Colin Realty Co., LLC v. Town of North Hempstead, 2013 WL 2420786 ( NYAD 2 Dept. 6/5/2013)

The opinion may be accessed at: http://www.courts.state.ny.us/REPORTER/3dseries/2013/2013_03998.htm


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