Langer v. Raymond

267 A.D.2d 790, 699 N.Y.S.2d 831, 1999 N.Y. App. Div. LEXIS 13548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1999
• Status: Published

Opinions

—Mikoll, J. P.

Appeal from a judgment of the Supreme Court (Rumsey, J.), entered June 15, 1998 in Tompkins County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of the Zoning Board of Appeals of the Town of Groton requiring petitioners to obtain site plan approval and a special use permit prior to conducting their restaurant business.

This appeal brings on for review several issues — namely, (1) the validity of the interpretation by the Zoning Board of Appeals of the Town of Groton (hereinafter the Board) of the Town of Groton Land Use and Development Code, pursuant to which petitioners were required to submit their proposed use of the subject property to site plan review, (2) whether Supreme Court properly deferred to the Board’s interpretation of the Town’s Land Use and Development Code in concluding that the Board’s determination was supported by substantial evidence and was not arbitrary, and (3) whether this appeal is moot in view of the grant of site plan approval subsequent to the filing of the notice of appeal.

Petitioners are leaseholders of property formerly operated as a restaurant which has been vacant for several years. Petitioners were advised by the Town Code Enforcement Officer that site plan approval would be required (contrary to the opinion rendered earlier by him) and petitioners were ordered by him to cease and desist use of the property until such approval was granted. The Board denied petitioners’ appeal, finding that site plan review and a special use permit were required prior to the operation of the premises as contemplated by petitioners. The Board therefore sustained the order of the Town Code Enforcement Officer to cease and desist.

Petitioners commenced this CPLR article 78 proceeding to review the Board’s determination and Supreme Court denied petitioners’ challenge, finding the Board’s decision not to be arbitrary or capricious and to be supported by substantial evidence. A judgment to that effect was entered from which petitioners appeal.

Addressing the issue of mootness, we find that the subsequent grant of site plan approval does not make the issues raised by petitioners moot. The specifics of the. site plan approval are not set out and are subject to conjecture at this point. It is unclear whether the approval was granted without any limitation to the adult entertainment petitioners propose to present at the premises. If the right to provide entertainment is subject to restriction, as it appears to be, the question of whether petitioners needed site plan approval at all becomes significant to the resolution of their contention that they have vested rights to unrestricted use of the property.

It is petitioners’ contention that no site approval needed to be obtained prior to use of the premises as an eating and drinking establishment where the property had been used for the same purpose in the past and where, they contend, no development of the site was undertaken by them. Accepting the legal premise that a zoning board decision that has a rational basis and is supported by substantial evidence will not be disturbed (see, Matter of Khan v Zoning Bd. of Appeals, 87 NY2d 344, 351), we turn to the record for an examination of the underlying facts.

The subject property is located in a “Medium Intensity One District (Ml)”, a predominantly residential area but one in close proximity to nonresidential areas. Pursuant to Town of Groton Land Use and Development Code § 441.1 (a), site plan review and a special use permit (showing compliance with a site plan review) are required before development is allowed. Development is defined as “[a]ny change made to improved or unimproved real estate, including to buildings or other structures, or site modifications such as filling, paving, excavation or mining operation [emphasis supplied]” (Town of Groton Land Use and Development Code § 120).

The Board concluded that the occupation of the vacant building and the reuse of the building for a drinking and eating establishment constituted a change. We note, too, that the hearing record contains testimony from several sources that a contractor’s vehicle was parked outside the premises for several months. This supports the conclusion that site modifications had occurred. Petitioners did not confront or dispute this revelation.

We note also that Town of Groton Land Use and Development Code § 341, entitled “Land Use Activities”, enumerates the use activities permitted in a particular zoning district. When an asterisk appears next to a particular activity, it indicates that site plan review is required. Included in that category is an “[elating and drinking establishment” in the Ml district where the instant property is located. We find that the Board’s conclusion that a change occurred here when petitioner attempted to use the instant premises as a drinking and eating establishment after many years of disuse should be affirmed as rational and supported by substantial evidence.

Based on the record and on the Board’s interpretation of the zoning ordinance, we conclude that its determination is rational and supported by substantial evidence. Supreme Court’s judgment dismissing the petition should accordingly be affirmed.

Yesawich Jr. and Carpinello, JJ., concur.