This is an Article 78 proceeding in which the petitioner Dish Realty, LLC ("Dish") seeks to annul a determination of the respondent Zoning Board of Appeals of the Town of Huntington ("ZBA"), dated October 22, 2003, which denied its application for a parking variance to operate [*2]a laundromat on certain property located in the Town. At the time of the application, the property was in an area zoned C-6 General Business District, and had been since 1934. The Town Code would normally require twenty parking spaces for a laundromat, while the property presently provides seven.

The property had been used as an automobile and brake repair shop since the late 1950s, and the building still stands, but it has been lying vacant for several years. The petitioner's intent was not to enlarge or expand the building, but to use the present structure to house the laundromat. It appears that if an auto repair shop was established at the site today, it would require twenty-four parking spaces, not twenty.

There was a hearing on October 16, 2003, following which, on October 22, consideration of the request for a parking variance produced a tie vote, three in favor, and three against, so the result was a "default denial" (see, Matter of Tall Trees Constr. Corp. v Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86; see also, Town Law, §267-a[13][b]).

Before examining the testimony offered at the hearing, it is important to put this entire matter into context: petitioner first sought permission to operate a laundromat in the existing structure in 2002. The Town denied the request because of the failure to provide adequate parking. The petitioner filed an appeal with the ZBA, and a hearing was scheduled for September 26, 2002, but the Board adjourned the matter for two months. Two days before the re-scheduled hearing, the Town enacted a moratorium and petitioner's efforts to proceed were effectively blocked. The moratorium expired on May 15, 2003, and a hearing was scheduled for October 16, 2003. It was held, as scheduled, and six days later, on October 22, the ZBA's determination, which is the subject of this proceeding, was issued.

Thereafter, subsequent to the filing of the instant Article 78 proceeding, and pending final submissions by the parties to this Court, on March 2, 2004, the Town Board adopted a Local Law, No. 7-2004, which amended the Town Code by, inter alia, creating a so-called "C-6 Huntington Station Overlay Zoning District." That District included the property in question here. Among the uses specifically prohibited in the District are "auto laundry or car washing establishments" (see, § 198-27.1 [D][7]). It is argued that the term "auto laundry" includes the laundromat-type establishment which petitioner was seeking to open.

At the hearing, petitioner called one of its owners who testified that they had already opened two similar and successful laundromats in the Town, and that including renovations, new equipment and the price of the property, they estimated a total investment of 1.4 million dollars. A traffic expert testified that a study done over a year and one-half showed there was generally sixteen spaces available at the site, and, in addition, there was a municipal lot less than three hundred feet away used for commuter parking. That lot required a Town sticker or permit from 6:00 AM to 5:00 PM, but after 5:00 PM and on weekends no sticker was required. Surveys showed the busiest time for laundromat business was evenings and weekends. It was the expert's opinion that "... between the informal parking area in front of the site, and the availability of the parking [*3]lot to the south...there is sufficient off-street parking available..."

Petitioner also called a real estate expert who opined that the granting of the parking variance would "absolutely not" impact the character and values in the surrounding area. The expert noted that the value of homes near one of the laundromats opened by the petitioner in the Town appreciated an average of twenty-four percent in the year following the opening of the business, i.e., the presence of a twenty-four hour laundromat had no adverse effect of the surrounding community.

The bulk of the opposition at the hearing came from people in the community. The president of a neighborhood association argued that the commuter parking lot across the street was owned by New York State, not the Town. He pointed out that the site was at the core of an area under study for "revitalization," and therefore the Board should not approve such a large (65%) deviation in the parking requirement. One resident noted that the area was already "drowning" in laundromats: there was one across the street, one a block away, and one a quarter of a mile away. The same resident pointed up several deficiencies in the study proffered by the traffic expert. He too noted that the site was already scheduled for revitalization, and that another laundromat where four already exist "...was an undue concentration and an overcrowding of a redundant and unnecessary service. It's a detriment to the community."

The owner of a small mom and pop laundromat located nearby, whose family had lived and worked in the neighborhood for years, made the point that a new laundromat would drive the family out of business. That, of course, was "not" the ZBA's concern - its concern was the lack of required parking spaces. There were other residents who made the point that a reduction in the number of required spaces from twenty to seven was "ridiculous," and it would have an adverse influence on the traffic pattern in the neighborhood. One speaker noted that the variance being sought was "substantial," and granting it "would have a considerable and significant impact to the revitalization of Huntington Station."

As noted, a few days after the hearing, the six member Board announced its determination which, in effect, denied the variance. In so doing, the Board cited the following:

(1) the municipal lot across the street is owned by the State and leased to the Town for commuter parking. The use of the lot is restricted to certain hours and requires a parking permit. This restriction, plus the fact that the lot is located across the very busy New York Avenue (Route 110) makes it effectively unavailable to the proposed site. The Town Code permits, but does not require ("may") the Board to consider the lots availability to satisfy the applicant's parking deficiency;

(2) the Board found that the traffic study submitted by petitioner's expert to be deficient in several respects; and

(3) the Board rejected petitioner's claim that the proposed site was grand-fathered [*4]concerning prior parking, i.e., petitioner argued that the auto repair shop built on the property in the 1950s required twenty-four parking spaces, while the use it was seeking to establish at the site only required twenty. Nothing in the Code required the Board to allow an applicant to carry forward non-conforming parking to a changed use of the premises.

The cases are legion which hold for the proposition that judicial review of a ZBA determination is narrow and limited. It is also well-settled that the construction of local statutes by the agency or Board responsible for their enforcement will be upheld if not irrational or unreasonable (see, e.g., Matter of Sasso v Osgood, 86 NY2d 374, 384).

The Board here was dealing with a request for an area variance, and, as such, was required to engage in a balancing test by weighing the benefit, if the variance was granted, against the detriment to the health, safety and welfare of the neighborhood or community (see, Matter of Il Classico Restaurant, Inc. v Colin et al., 254 AD2d 418, 419-420). It concluded that the requested variance was substantial and would have an adverse impact on the surrounding area. There is no evidence that this denial of the variance was illegal or arbitrary. Furthermore, the Board members were entitled to rely on their own personal knowledge of the community in question in reaching their decision (see, Matter of Il Classico Restaurant, Inc. v Colin et al., supra at 420).

That is especially true where it appears that the legislative body (Town Board) which enacts the law (Zoning Code) which the Zoning Board is required to interpret has made it clear that the specific use for which the applicant is seeking approval is no longer permitted at the site in question (cf., Ellington Constr. Corp. v Zoning Board of Appeals, 77 NY2d 114, 122).

The petition is denied, and the proceeding dismissed.

The foregoing constitutes the decision and judgment of the Court.

DATED: HON. MICHAEL F. MULLEN, J.S.C.