Before the Court is a petition pursuant to CPLR Article 78 seeking vacatur of the Notice of Decision and Order of the Respondent Board of Zoning Appeals of the Town of Hempstead (Zoning Board) filed June 25, 2010 denying petitioners' application for special permits and variances in order to construct a fast food restaurant, White Castle, on the subject premises (Seq. #001).

The Zoning Board's application by order to show cause requested the striking of the supporting affidavits of Barry C. Nelson and John R. Harter on the grounds this evidence presented by petitioners was de hors the record at the Zoning Board hearing.

At a TRO hearing before the undersigned held October 6, 2010, it was determined that petitioner [*2]would submit an amended verified petition, deleting the objectionable affidavits, thereby granting respondent's OSC application prior to its return date (Seq. #002).

The Court now considers the subsequently filed amended petition to annul and vacate with exhibits "A" through "J" and, upon the foregoing papers, denies petitioners' application (Seq. #001).

The subject property, rectangular in shape, is located on the southwest corner of Sunrise Highway (Rt. 27) and St. Marks Avenue, Bellmore, New York. Petitioners proposed to build a White Castle (hamburger) Restaurant with 24 hour Drive-Thru Service on the site which was currently developed with two residential dwellings, a cellular phone retail store and an auto collision repair center. In addition to the two drive-thru service windows, the proposal included ingress and egress along Sunrise Highway and a "full-movement" driveway on St. Marks Avenue.^[FN1]

Eventually, a revised proposal was submitted upon which the Building Department denied building permits, citing 7 special exceptions, waivers and appeals that would be required from the Zoning Board (see p. 4 Amended Verified Petition).

A public hearing was held on March 17, 2010. Petitioner, by counsel, submitted testimony by a White Castle representative, an expert real estate/zoning consultant, a site engineer and a traffic engineer.

Objections were presented by local residents and business owners and or/their representatives in addition to testimony by a real estate appraiser and a traffic engineer.

At the conclusion of the hearing counsel were invited to submit proposed findings of fact to support their respective positions.

On June 2, 2010, the Zoning Board adopted the findings of fact submitted by the objectors to the proposed White Castle fast food restaurant, including 21 specific arguments that, in essence, the drive-thru would be dangerous to the health, safety and welfare of the surrounding residential community and pedestrians, result in a negative impact on the adjacent home values. Moreover, the 24/7 traffic, noise, light pollution, etc. would have a deleterious effect on local residents' quality of life.

Petitioners assert that the Board's decision to deny special use permits and variances was arbitrary and capricious and not based on substantial evidence in the record.

Additionally, petitioner's maintain that the decision of the Board to adopt the factual findings submitted on the record was an abdication of the Board's obligation to make an independent [*3]decision.

Reaching the latter proposition first, adopting the facts and arguments presented by a party to a conflict is not the equivalent of failing to employ decision making authority or discretion in the first instance. Certainly, the court system does so on occasion as a matter of judicial economy and appellate courts often rely on the decision below to affirm a decision.

As to the judicial review of this Board's opinion, one should keep in mind that the decision must be affirmed if it has a rational basis and is supported by substantial evidence (Ifrah v. Utschig, 98 NY2d 304).

Even if the undersigned were to disagree with certain of the Board's conclusions, such as those set forth in petitioners' memorandum, the Court may not substitute its conclusion for that of the Board (see Retail Property Trust v. Board of Zoning Appeals Town of Hempstead, 98 NY2d 90; Falco Realty, Inc., v. Town of Poughkeepsie, 40 AD3d 635).

Respondent herein successfully demonstrates that the decision in which the Board employed the required balancing tests and statutory factors was supported by substantial evidence (Pecoraro v. Board of Zoning Appeals, Town of Hempstead, 2 NY3d 608, 613-614; Roberts v. Wright, 70 AD3d 1041). Even in this case, where permits are being sought for a nonprohibited use, the petitioner must still establish compliance with the conditions for granting a special use permit (see Pine Knolls Alliance Church v. Zoning Board of Appeals of Town of Moreau, 5 NY3d 407, 414; Wegmans Enterprises v. Lansing, 72 NY2d 1000; e.g., Market Square Properties, Ltd. v. Town of Guilderland Zoning Board of Appeals, 109 AD2d 164, aff'd 66 NY2d 893).

In a situation where there are conflicting expert opinions, for example traffic conditions, the Court is bound by the sound judgment and discretion of the Board (Retail Property Trust, supra), unless it is clearly arbitrary, capricious or contrary to law (Lemir Realty Corp. v. Larkin, 11 NY2d 20).

Such was not the case here, where the board rationally balanced the relevant considerations (Town Law, 267-b (3); Caspian Realty, Inc. v. Zoning Board of Appeals of Town of Greenburgh, 68 AD3d 62, 72).

Finally, petitioner mischaracterizes the extensive community opposition as being insufficient to cause a denial of the application (see, e.g., Market Square Properties LTD, supra; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608). The opposition was supported by its own experts as well as eye witness testimony regarding conditions in and the character of the neighborhood as well as observations of other fast food restaurants adjacent to residential property, especially when operating in a 24/7 capacity. Of course, local boards have discretion in considering these factors given their familiarity with local conditions (Caspian, supra, at 77). [*4]

Petitioners' application is denied and the petition is dismissed.

January 5, 2011.................................................................

Hon. John M. Galasso, J.S.C.