State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The background and most of the facts in this case are set out in the court's decision of August 13, 2004. What is before the court in this present proceeding are the merits of the petitioner's complaints regarding the grant of a zoning variance to ABC, LLC. In particular, the court must decide whether or not the town acted arbitrarily and capriciously in granting ABC a parking variance. Issues regarding the parking easement agreement are reserved for a separate action between Greece Park and ABC, and the court held in August that issues having to do with the special use permit or SEQRA are untimely.

The respondent board held a hearing on the parking issue on June 1, in which Samuel Halaby--Greece Park's managing partner--argued against the grant. He appears to have been especially concerned about the concentration of parking in that part of the plaza where the proposed China Buffet restaurant planned to open. This concern was expressed over and above his complaints about the aggregate number of available parking spaces. In fact, Halaby had proposed in a letter submission to the board that the restaurant be located on a separate pad some distance from the main plaza, and said that this would allay at least some of his concerns.

The board found that 1481 spaces were needed for the available retail space in the entire plaza, and 1397 were physically available, though an earlier variance for a Bally's gym had the legal effect of making 1433 available. After the hearing closed the town's staff recalculated and found that only 1465 spaces were required. When the decision was announced, however, the board stated that it had made its decision on the basis of the earlier figure. It found that the variance requested was slight, that the businesses were not busy at the same hours, and that the benefits of bringing another tenant to this location outweighed any disadvantages.

Given the scope of permissible judicial review, this court cannot conclude that the board's decision was arbitrary or capricious. Petitioner claims that the board violated its own zoning laws by treating the three legally separate parcels of the plaza as a business center. It is true that the town code requires business centers to file parking agreements with the town, and that the three different owners of the plaza in question instead have mutual easements that prohibit customers from parking in the spaces allocated to other businesses. The provision of such an agreement, though, is not a precondition to classification as a business center, and the town is not bound in its zoning determinations by easements such as the ones between Greece Park and ABC.

It is also perfectly clear that the easements have no effect on the actual parking situation in this plaza. There is no visible distinction among the parking spaces for the three parcels, there seems to be no history of enforcement of the easement, and the reality of the plaza is that anyone can park anywhere. A review of the map as highlighted in petitioner's papers shows that some of the parking for the "Lowes" parcel is far more useful for customers of the ABC parcel than some of ABC's "own" parking. From a real world point of view it would be arbitrary to treat these as separate parcels.

The petitioner argues that the parking spaces behind the plaza should not be counted as available because they are difficult to see and are unlikely to be filled. On the other hand, the town board heard testimony that the parking calculations included an allowance for customers of the part of the plaza that opens on these spaces. This area is vacant today and will probably remain so. The calculated parking requirements are therefore on the high side. Moreover, if any of this space were to be rented, customers would be likely to use the parking in front of it. There is no reason, then, for excluding these spaces from the parking available.

Petitioner's counsel also charges that his client's due process rights were violated because he was forbidden to speak or make submissions after the town's staff lowered its estimate of the parking requirements. As the board noted in its decision, though, the revised figures played no part in its decision to grant the variance. There was nothing, then, to which Mr. Halaby should have been permitted to respond. Under no interpretation of the record before the court can the town's actions be considered arbitrary or capricious. The petition is dismissed, with costs. Counsel for the town may prepare the order.

DATED: Rochester, New York

October 7, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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