Posted by: Patricia Salkin | September 27, 2017

NY Appellate Court Upholds Imposition of Conditions on Parking Variance

Petitioner Bonefish Grill, LLC sought to demolish the existing structure on its property and build a 5,400 square foot restaurant. The Village’s Zoning Code required the petitioner to have 54 off-street parking spaces. Since the property did not have any off-street parking spaces, petitioner proposed to merge the subject property’s lot with the adjoining property it also owned. This merger would allow it to utilize an exception to the Zoning Code’s off-street parking requirement for “interior restaurants that abut municipal parking fields,” as the adjoining property was adjacent to a municipal parking lot. When the petitioner’s restaurant was substantially completed, the Building Department discovered that the proposed merger between the subject property and the adjoining property had never taken place. Because of this, before issuing a certificate of occupancy, the Building Department directed the petitioner to apply for a parking variance. The petitioner applied, 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 12:30a.m. on Mondays through Fridays. The Village’s Zoning Board of Appeals (ZBA) granted the parking variance but imposed the conditions that the restaurant’s operating hours be restricted to the times set forth in the lease agreement, and that valet parking be mandatory. The petitioner commenced a CPLR article 78 proceeding to annul these conditions, and the Supreme Court granted petitioner’s request.

On appeal, the court found the ZBA’s conditions were proper because they “related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion and parking problems.” The ZBA’s rationale was supported by empirical and testimonial evidence, as petitioner’s own expert stated that there was a high demand for parking in the area of the subject restaurant. Accordingly, the petition to annul the conditions restricting hours of operation and requiring valet parking was denied.

Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 WL 4275872 (NYAD 2 Dept. 9/27/2017)

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