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HomeMy WebLinkAboutDunkin Donut Decision C12014-04629 03/18/2014 11:03:50 AM Index# : 2014-0032 At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Courthouse, in the City of Ithaca, New York, on the 14' day of February, 2014. PRESENT: HONORABLE PHILLIP R. RUMSEY JUSTICE PRESIDING. STATE OF NEW YORK SUPREME COURT: COUNTY OF TOMPKINS Matter of YUNIS PROPERTIES, INC., Petitioner, DECISION, ORDER VS. AND JUDGMENT Index No. 2014-0032 TOWN OF ITHACA ZONING BOARD OF APPEALS, RJI No. 2014-0018-M Respondent. APPEARANCES: SAYLES & EVANS By: Conrad R. Wolan, Esq. Attorneys for Petitioner One West Church Street Elmira, New York 14901 TOWN OF ITHACA By: Susan H. Brock, Esq. Attorney for Respondent Zoning Board of Appeals 12 Pheasant Way Ithaca,New York 14850 C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 PHILLIP R. RUMSEY, J. S. C. Petitioner commenced this CPLR article 78 proceeding to challenge the decision of the Town of Ithaca Zoning Board of Appeals (ZBA) denying its application for an area variance that would be required to allow construction of a proposed Dunkin' Donuts drive-through restaurant. Petitioner owns a parcel of real property located at 302 Pine Tree Road in the Town's Community Commercial Zone, consisting of 1.3 acres improved by a vacant building containing approximately 3,500 square feet that was formerly used as a bank with three drive-through lanes for approximately forty years (the property). Petitioner proposes to convert the building to a Dunkin' Donuts restaurant containing approximately 2,440 square feet, with one drive-through window, and a second space of 1,050 square feet to be occupied by a currently unknown future tenant(which petitioner represented is likely to be a fast food restaurant without a drive-through). Restaurants are allowed in the Community Commercial Zone with a special permit, with two additional conditions applicable to drive-through restaurants: (1) no new restaurant with a drive- through facility is permitted within 1,500 feet of the property boundary line of an existing drive- through restaurant; and (2) no restaurant with a drive-through facility may exceed 10,000 square feet of interior floor space (Town of Ithaca Zoning Ordinance § 270-135[E]). Petitioner sought a variance from the 1,500 feet separation requirement because its property is located less than 300 feet from the property boundary line of an existing Burger King restaurant that has a drive- through window. The application was first considered at the ZBA's November 25, 2013 meeting. A motion approving the variance failed to pass on a 2—2 vote. The application was reconsidered at the ZBA's December 16, 2013 meeting, during which petitioner was allowed to present additional information. A revised motion to approve the variance failed by a 2—3 vote. The -2- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 ZBA then approved, by a vote of 3 —2, a resolution containing findings of fact that denied the application. Petitioner timely commenced this appeal. "Local zoning boards have broad discretion when considering applications for area variances and courts will uphold a zoning board's determination unless its actions were illegal, arbitrary or an abuse of discretion; the key is rationality. By statute, when considering the application for an area variance, respondent was required to weigh the benefit to petitioners if the variance were granted against the detriment to the community from a grant of the variance (see Town Law § 267-b [3] [b]). Respondent was required to consider the following factors: `whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than a variance; (3) the requested area variance is substantial; (4) granting the proposed variance would have an adverse effect or impact on physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty is self-created. While the last factor is not dispositive, it is also not irrelevant' (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [citation omitted]; see Town Law § 267-b [3] [b]).,' (Matter of Smelyansky v Zoning Bd. of Appeals of the Town of Bethlehem, 83 AD3d 1267, 1268 — 1269 [2011] [citations omitted]). Respondent considered each of the statutory factors when weighing the benefit to petitioner against the detriment to the community if the variance were to be granted and denied the variance application. The substantial magnitude of the requested variance was of primary concern to the ZBA. It specifically found that a reduction from the 1,500 feet requirement to 300 feet would "gut the intent of the zoning law to mitigate the impacts of restaurants with drive through by requiring substantial separation between them" (Record, p. R-29; see also R-24, R- 25). The magnitude of a requested variance is a significant factor"since the greater the variance in area restrictions, the more severe the likely impact upon the community" (Matter of Biscardi v Zoning Bd. of Appeals of Town of Hyde Park, 288 AD2d 215 [2001], Iv denied 97 NY2d 609 -3- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 [2002], citing Matter of National Merritt v Weist, 41 NY2d 438 [1977] [where the requested variance is great, it is more difficult for an applicant to demonstrate that the variance will not have a detrimental impact on the community]; see also Matter of Mary T. Probst Family Trust v Zoning Bd. of Appeals of Town of Horicon, 79 AD3d 1427 [2010], Iv denied 16 NY3d 708 [2011] [application seeking a variance of 92% from the roadway setback requirement was properly denied]; Matter of Bivona v Town of Plattekill Zoning Bd. of Appeals, 268 AD2d 877 [2000] [application seeking a variance that would double the allowed density of use was properly denied, even though it was supported by most of the neighbors and would not have had an adverse impact on existing physical or environmental factors]; Matter of Stewart v Ferris, 236 AD2d 767 [1997] [variance of 50% was substantial]). Thus, the ZBA's determination that the requested variance was substantial and that it would effectively"gut" the zoning ordinance was rational and is supported by evidence in the record. The ZBA was not required to accept petitioner's argument that the distance between drive-through restaurants should be measured by the distance between their respective driveways—purportedly 850 feet—inasmuch as the ordinance provides for measurement of the 1,500 feet zone from "the property boundary line of an existing restaurant with a drive-through facility" (Zoning Ordinance § 270-135[E]). In any event, it bears noting that measurement as proposed by petitioner would result in a variance of 650 feet, or 43%, which is substantial in its own right. As evidenced by its findings of fact, the ZBA concluded that granting the variance would cause an undesirable change in the character of the district by substantially increasing the density of restaurants with drive-through facilities beyond that permitted under the Zoning Ordinance, and that the increase in density would also negatively affect an adjacent residential zone. Petitioner's argument that the ZBA's determination should not be sustained because its findings -4- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 are conclusory is unavailing. Although it is better practice for a zoning board to make factual findings that correlate to specific evidence in the record, the failure to do so does not preclude judicial review; rather, the merits of a proceeding may be considered if the factual underpinnings for the decision are present in the record see Matter of Siano v City of Saratoga Springs Zoning Bd. of Appeals, 21 Misc 3d 1115[A], 2006 NY Slip Op 52636[U], at *2— *3, affd on the opinion below 41 AD3d 952 [2007]; see also Matter of Steenrod v City of Oneonta, 69 AD3d 1030, 1032 [2010]; Matter of Ohrenstein v Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1043 [2007]; Matter of Iwan v Zoning Bd. of Appeals of Town of Amsterdam, 252 AD2d 913, 914 [1998]; Matter of Concerned Citizens Against Crossgates v Town of Guilderland Zoning Bd. of Appeals, 91 AD2d 763 [1982]). The fact that the requested variance is substantial makes it more difficult for petitioner to demonstrate that the variance will not have a detrimental impact on the community(see Matter of Biscardi, 288 AD2d 215; Matter of Mary T. Probst Family Trust, 79 AD3d 1427; Matter of Bivona, 268 AD2d 877). The meeting minutes indicate that the ZBA considered evidence that restaurants with drive-through windows create special access and circulation concerns relating to stacking lanes and driveways on busy streets, and that the 1,500 separation requirement was intended to limit such impacts (see Record,pp. R-9, R-10, R-24, R-20, R-21). In that regard, the ZBA considered an appendix from the Generic Environmental Impact Statement(GEIS appendix)prepared in conjunction with the Town's enactment of the 2003 comprehensive rezoning that imposed the 1,500 feet separation requirement. Information from the GEIS appendix that was verbally presented at the November 25, 2013 meeting was provided to ZBA members in writing prior to the December 16, 2013 meeting(see R-34), and the GEIS appendix was also formally submitted by petitioner and referenced by its counsel at the second meeting -5- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 (see petition,¶¶45 —47, Exhibit E; Record,pp. R-20, R-21). In addition to noting that drive- through facilities present problems with stacking lanes and driveways, the GEIS appendix observes that such facilities also tend to attract other drive-through restaurants and that they are incompatible with residential neighborhoods. The GEIS also shows an intent to mitigate those impacts by, among other things, imposing the distance separation requirement to limit the permitted density of drive-through restaurants. These factors support a conclusion that the character of a district having only one drive-through facility is different than one where there are a number of fast food restaurants with drive-through facilities located in close proximity to one another see Affidavit of Kirk M. Sigel, sworn to February 6, 2014, ¶ 6; see also Matter of Friends of Hammondsport v Village of Hammondsport Planning Bd., 11 AD3d 1021 [2004] [an affidavit from the Chairman of the Planning Board was part of the record considered in an article 78 proceeding]). Such factors provide a reasonable basis for the ZBA's determination that granting the variance would have an undesirable effect by increasing the density of drive-through restaurants—doubling the number present—in the vicinity of a residential area, especially when considered in light of the overwhelming magnitude of the requested variance. Petitioner's argument that the ZBA's issuance of a negative SEQRA declaration and its conclusion that the proposed variance would not have adverse physical or environmental effects in the district are inconsistent with its determination that granting the variance would produce an undesirable change in the character of the neighborhood is unavailing. In the SEQRA explanation, it is noted that traffic impact is "mitigated," not eliminated see Record,p. R-4), so determining that the requested variance would alter traffic, and that the result would be to change the character of the neighborhood, is rational. Where, as here, a proposed variance is substantial, a zoning board may rationally determine that a project that will have no adverse physical or -6- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 environmental factors will, nonetheless, negatively affect the character of the neighborhood(see Matter of Pecoraro, 2 NY3d 608 [zoning board properly found that a variance permitting a reduction in minimum lot width of approximately 30% would change the character of the neighborhood, notwithstanding its determination that the proposed project would cause no physical or environmental harm to the neighborhood]; Matter of Smelyansky, 83 AD3d 1267 [zoning board properly found that a variance permitting a reduction in minimum lot size by approximately 21% would change the character of the neighborhood, notwithstanding the fact that there was no evidence that it have an impact on physical or environmental conditions]; Matter of Cellco Partnership v Bellows, 262 AD2d 849 [1999] [zoning board properly found that the proposed variance would not be suitable for the character of the neighborhood, notwithstanding the apparently contradictory negative SEQRA declaration]). The ZBA also rationally concluded that the difficulty is self-created, because petitioner Yunis Properties, LLC purchased the property"within the last five or ten years" (Record, p. R- 20), when drive-through restaurants were either entirely prohibited or after enactment of the 1,500 feet separation requirement with an effective date of April 1, 2004. The fact that petitioner may share some common ownership with Yunis Realty, Inc. (Yunis Realty), which acquired a leasehold interest in the property in the 1970s does not require a different result. Yunis Realty ground leased the property in the 1970s and constructed the building that was used as a bank until recently. Although petitioner claims that it and Yunis Realty are "related entities," it concedes that"ownership of the two entities is not identical" (Record,p. R-26). Moreover, management of the related entities became more interested in the property after enactment of the separation requirement when petitioner purchased fee title to the property in 2005 (see Record, p. R-20, R-26 [petitioner purchased the land within the last five or ten years]; see also the deed to -7- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 petitioner dated December 20, 2005,recorded in the Tompkins County Clerk's Office as Instrument Number 484004-001, of which the court takes judicial notice see Harbor Hills Landowners v Manelski, 65 Misc 2d 682, 683 (1970); see also Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445, 447 (2005)]). The ZBA found that two of the statutory factors weighed in petitioner's favor, namely, that the benefit which petitioner seeks to achieve cannot be achieved by any feasible means other than granting of the variance, and, as previously noted, that granting the variance would not have adverse physical or environmental effects in the district. However, as noted, the ZBA's determination that the detriment to the community outweighs the benefit to the applicant had a rational basis in the record, especially given the magnitude of the requested variance see e.g. Matter of Pecoraro, 2 NY3d 608 [variance was properly denied upon a balancing of the same factors found by the ZBA in this case]; Matter of Blandeburgo v Zoning Bd. of Appeals of Town of Islip, 110 AD3d 876 [2013] [same]; Matter of Smelyansky, 83 AD3d 1267 [same]). Based on the foregoing, the petition must be, and hereby is, dismissed. This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry. Dated: March 18, 2014 Cortland,New York Phillip R. P�9��PA°Rm=eao o�m=ev Rumseyoa, o,>�,ao9>e=bo>oo = HON. PHILLIP R. RUMSEY Supreme Court Justice -8- C12014-04629 03/18/2014 11:03:50 AM Index#: 2014-0032 The following documents were filed with the Clerk of the County of Tompkins: - Notice of petition dated January 15, 2014. - Verified petition, verified January 15, 2014, with Exhibits A—H. - Verified answer, verified February 6, 2014. - Affidavit of Kirk M. Sigel, sworn to February 6, 2014, with Exhibit A. - Record, filed February 6, 2014. - Reply affidavit of Megan K. Collins, sworn to February 13, 2014. - Original Decision, Order and Judgment dated March 18, 2014. -9-