Posted by: Patricia Salkin | December 15, 2018

NY Appellate Court Affirms Dismissal of Claims Arising from Denial of Building Permit to Construct Two-Story Restaurant

This post was authored by Matthew Loeser, Esq.

Plaintiff Sedana Realty, LLC owned real property which it leased to plaintiff George Voutsinas in the Village of Rockville Centre. In 2013, the plaintiffs applied for building permits to construct a two-story restaurant on the subject property by altering an existing one-story structure and building a second floor. The application was denied on the ground that the proposed construction failed to provide the off-street parking spaces required by the Village’s Zoning Code. The plaintiffs appealed the denial to the Zoning Board of Appeals of the Village of Rockville Centre and sought a variance from the off-street parking requirements of the Zoning Code. The Zoning Board granted the plaintiffs building permits to construct a one-story restaurant on the subject property and a parking variance for the off-street parking space requirements for a restaurant of that size, but denied the application for a two-story structure. The plaintiffs then filed a second application for building permits to construct a two-story restaurant on the subject property. The Zoning Board determined that, absent the valet parking proposal, this second application was “not materially different” from the petitioners/plaintiffs’ first application for a parking variance, and that it was bound by its prior determination on this issue. The Supreme Court of New York denied the second amended petition and dismissed the proceeding.

 

As to the determination that the Zoning Board was bound by its March 12, 2014, holding, the court found that the Zoning Board did not make a determination regarding the application of Local Law No. 4–2005. Additionally, to the extent that the plaintiffs sought judicial review of the March 12, 2014, determination denying their first application for a parking variance, the court held that the review of that determination was time-barred. Accordingly, the court affirmed the Supreme Court’s determination denying the second amended petition and dismissing the proceeding.

 

The court next reviewed the Supreme Court’s denial of the branch of the plaintiffs’ motion to disqualify the law firm of Cullen & Dykman, LLP, from representing the Zoning Board. As plaintiffs failed to demonstrate the testimony of the firm’s members would be necessary to their case, this claim was likewise rejected.
Voutsinas v Schenone, 2018 WL 5811756 (NYAD 2 Dept. 11/7/2018)


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