NCWBA President-Elect, Simone M. Freeman, Esq. Changes Law
We are proud to congratulate NCWBA President-Elect, Simone M. Freeman, Esq., for having successfully argued the issue of whether applications for loading and unloading areas and parking variances were properly treated by the Board of Zoning and Appeals of the Town of North Hempstead as applications for area variances before the New York State Court of Appeals.
Matter of Colin Realty Co., LLC v. Town of North Hempstead
Argued September 10, 2014
Decided October 16, 2014
On October 16, 2014, the New York State Court of Appeals issued its decision in the Matter of Colin Realty Co., LLC. v. Town of North Hempstead, et al, which revisited certain of its prior holdings and clarified the manner in which zoning boards of appeals must consider requests for off-street parking variances. AmatoLaw Group, PLLC, the Town of North Hempstead's (the "Town") outside counsel for this matter, believes this decision will be beneficial to the vitality of downtown communities on Long Island and throughout the state.
This matter arose from the 2011 decision of the Town Board of Zoning and Appeals (the "Board") granting an application for loading area and parking variances for a proposed 45-seat, full-service restaurant, which is a conditionally permitted use under the Town Code. The proposed restaurant would be operated on a parcel, which was developed prior to the Town's enactment of off-street parking restrictions and does not provide any off-street parking or loading areas. Accordingly, the variance applications sought relief from the Town Code's current off-street parking provisions, which would require the proposed restaurant to provide 24 off-street parking spaces and a loading area. The Board treated the requested variances as area variances, as opposed to use variances. The former is generally granted when a property is configured in such a way as to prevent construction in compliance with applicable zoning ordinances, whereas the latter is necessary to change a permitted use.
Court proceedings challenging the Board's decision granting area variance relief for the proposed restaurant were subsequently commenced by Colin Realty, LLC ("Colin"), an adjoining landowner. Colin claimed that the request for a variance from the off-street parking requirements should have been treated as a use variance. In support of its argument, Colin cited the Court of Appeals' holding in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1977) ("Off Shore"). Contrary to Colin's position, Off Shore did not mandate that parking variances must be treated as use variances. Rather, the Court of Appeals noted that the issue of whether a parking variance should be treated as a use variance or an area variance depends upon the circumstances of a particular case.
The Board, in turn, argued that Colin's position lacked legal or factual support. Specifically, there was no need or basis to treat the application as one for a use variance, since the proposed restaurant use is a conditionally permitted use within the underlying zoning district. Accordingly, the variance was not necessary to operate a prohibited use at the subject property, but simply addressed the fact that the property did not conform to the parking requirements that were enacted after the property was developed. The Board's argument is consistent with the Court of Appeals' holding in Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449 (1971) ("Overhill"), in which an application for relief from off-street parking was held to have been properly treated as one for an area variance, where the proposed use was permitted under the applicable zoning requirements. In addition, the Board noted that it properly balanced the factors set forth in Town Law § 267-b(3) governing area variances in rendering its decision to issue the requested variances.
The Supreme Court rejected Colin's argument and upheld the Board's decision granting the subject area variances. On Colin's subsequent appeals, both the Appellate Division and the Court of Appeals have held that the Board acted properly in granting the area variance relief.
In rendering its decision, the Court of Appeals revisited its holdings in Off Shore and Overhill, which both dealt with variances from the off-street parking requirements of zoning ordinances in other municipalities. The Court noted that both cases were decided prior to the enactment of Town Law § 267, which defined "use variance" as "[a]n authorization to use land for a purpose otherwise not allowed or prohibited ..."; and an "area variance" as "[a]n authorization to use land in a manner which is not allowed by the dimensional and physical requirements of the zoning regulations."
The Court further noted that off-street parking requirements, which differ depending on the proposed use, "regulate how the property's area may be developed, akin to minimum lot size or set-back restrictions." As such, requests to relax off-street parking requirements shall be treated as area variances where the proposed use is permitted. On the other hand, if the variance at issue is for a use that is prohibited within the zoning district, it shall be reviewed as a use variance.
Accordingly, the Court of Appeals held that "[a] zoning board of appeals should evaluate requests for off-street parking variances by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district." As a result of the Court's decision, zoning boards of appeals throughout the State of New York shall now evaluate requests for off-street parking variances, made in connection with a permitted (or conditionally permitted) use, pursuant to the standards set forth in Town Law § 267-b(3) governing area variances.
Amato Law Group, PLLC is pleased with the Court of Appeals' decision, which conclusively verifies that municipalities must apply the statutory area variance standard for parking variance applications for permitted uses, as opposed to the highly-restrictive standard for use variances. Accordingly, this decision permits local zoning boards located in these communities to weigh the benefit to the applicant in granting the parking variance, against the detriment to the health, safety and welfare of the neighborhood or community. There are many local downtown communities on Long Island and throughout New York that were developed prior to the enactment of off-street parking restrictions. As a result, many businesses in these communities are unable to comply with restrictive off-street parking requirements. Further, this decision encourages the continued vitality of these downtown districts, as well as the fostering of alternative modes of transport besides automobiles to and from these areas.
Support Magistrate Diane M. Dwyer Set to Retire
Support Magistrate Diane M. Dwyer will be retiring from the Nassau County Family Court in November! The occasion will be marked with a luncheon in her honor. Please come and celebrate Ms. Dwyer's career and wish her well in all her future endeavors.
Date: Monday, November 24, 2014
Time: 1:00 p.m. sharp
Locations: Ristorante Venere
841 Carman Avenue, Westbury, New York
Cost: $30 for Italian-Style Buffet, Cake, Beverages and Gift (Paybale in cash or by check)
Gift Only contributions will also be accepted
R.S.v.P. by November 17, 2014
Contact: Sarah or Marie (516) 493-3850
Linda K. Mejias, Esq. receives Community Service Award
On Friday, October 24, 2014 at 7:00 p.m., Linda K. Mejias, Esq., as one of the Gala Honorees, will receive the Community Service Award at the 13th Annual Gala of the Long Island Hispanic Bar Association. The event will take place at Villa Lombardi's, 877 Main Street, Holbrook, NY 11741. For more information or to RSVP for the event please visit www.lihba.org or CLICK HERE.
Hon. Hope Schwartz Zimmerman, J.S.C. receives The Neil T. Shayne Distinguished Service Award
On Monday, October 27, 2014 at 6:00 p.m., the Hon. Hope Schwartz Zimmerman, J.S.C., Supervising Judge of the Matrimonial Parts in Nassau County, will receive The Neil T. Shayne Distinguished Service Award at the Annual Dinner and Installation of Officers of the Jewish Lawyers Association of Nassau County. The event will take place Temple B'nai Sholom, 100 Hempstead Avenue, Rockville Center.
For more information or to RSVP to attend, please visit JLANASSAU.ORG or CLICK HERE
MCCARTHY, AIELLO TO BE HONORED BY THE NASSAU COUNTY WOMEN’S BAR FOUNDATION
The Nassau County Women’s Bar Foundation will honor US Congresswoman Carolyn McCarthy and Mary Ann Aiello, Esq. at their Ninth Annual Golf Outing and Dinner on Monday, September 22, at Harbor Links Golf Course in Port Washington.
Click here to view the Article in the Long Island Exchange
Annual Holiday Cocktail Party
The NCWBA Annual Cocktail Party was once again a great success. Depsite the snowy weather, we had over 75 people in attendance to enjoy the evening.
Through the generosity and support of our members, sponsors and other supporters, we raised over $3,000.00 for the Nassau County Coalition Against Domestic Violence!!
As part of the program at the party, the NCWBA and NCWBF made a special presentation in honor of Patricia Doyle, who was a long-time and beloved member of the NCWBA. Pat's passing this year was a tremendous loss to the not only the NCWBA but the Nassau County Family Court, as well as the community as large.
Please check back for pictures from the event.
Eighth Annual Golf Outing
On September 23, 2013, the NCWBF hosted its Eighth Annual Golf Outing Benefiting Breast Cancer Research and Awareness, at the Harbor Links Golf Course.
100 golfers and over 250 dinner guests participated in this lively event. This year the NCWBF was proud to honor Ellen F. Kessler, Esq. of Ruskin Moscou & Faltischek, P.C. and Thomas Maligno of Touro College Jacob D. Fuchsberg Law Center, who is the recipient of the Courage Award.
Annual Membership Cocktail Party and Salute to the Judiciary
On September 9, 2013, the NCWBA hosted its Annual Membership Cocktail Party and Salute to the Judiciary. The event was well-attended by members of the Judiciary from Supreme, County, Family, and District Courts. Our membership drive is well-under way but we have not yet reached our goal! If you have not yet renewed or joined, you can do so by clicking here. We hope to see you at the next event!
Click on the image below to see more pictures from the event!
Nassau County Mental Health Court Graduation Ceremony
Hon. Andrea Phoenix and Linda K. Mejias, Esq.
On August 8, 2013, the Hon. Andrea Phoenix, District Court Judge and Past President of NCWBA and WBASNY, presided over the 2013 Nassau County Mental Health Court Graduation Ceremony of six graduates of the program. Special remarks were made by the Hon. Gary Knobel, and the Hon. Norman St. George.
The Nassau County Mental Health Court is a dedicated court part that seeks to craft a meaningful response to the problems posed by defendants with mental illness in the criminal justice system. Judicial monitoring is provided to assure that the court mandated treatment plan is followed by the client, and mental health case management is used to link clients to treatment programs and related services as an alternative to incarceration.
It was touching to see the graduates of the program there with the support of their families. Each graduate was eager to start their new life and each was grateful for the opportunity to participate in the program.
Congratulations to the graduates and our heartfelt appreciation to Judge Phoenix who presides over this dedicated part with compassion, fairness, and the genuine desire to help each participant.
2013 Installation of Officers and Directors
On June 12, 2013, the Nassau County Women’s Bar Association installed its Executive Board for the 2013-2014 term. Linda K. Mejias, Esq. was installed as President by the Honorable Jenny River, Associate Judge of the Court of Appeals. Judge Rivera also delivered the keynote address to a packed room at the Jericho Terrace in Mineola.
Click on the image below to see more pictures from the event!
