The following papers read on this motion:Notice of Motion and Affidavits XAffirmation in Opposition XReply Affirmation N/ARelief Requested The petitioner seeks an order vacating and annulling the decision of the respondents, Zoning Board of Appeals of the Town of Oyster Bay (hereinafter referred to as “ZBA”), which denied its application for an off-street parking variance. The petitioner submits a memorandum of law in support of their petition. The respondent BZA submits a memorandum of law in opposition to the petition.BackgroundThe petitioner seeks to challenge the determination of the ZBA, dated April 26, 2018, which denied petitioner’s application for a variance for off-street parking. Petitioner was originally granted a permit by the Town of Oyster Bay for the purpose of constructing a pad site in a shopping center owned by the petitioner in 2014. The subject permit was extended three times without issue in 2015, 2016, and 2017. Following the excavation of the work area and the pouring of the foundation for the subject work, the Town of Oyster Bay issued a stop work order dated October 3, 2017.A meeting was held wherein the Town of Oyster Bay informed petitioner that it had changed its method of calculating the required amount of off-street parking. The Town of Oyster Bay further informed petitioner that, under the new calculations, the proposed construction of the pad site would now result in a deficient amount of parking, where only 557 off-street parking spaces would be available where 624 would be required. Therefore, petitioner was required to apply for a variance regarding off-street parking.At the public hearing, the petitioner offered the testimony of Tom Mazzola, a traffic expert who prepared a study regarding the subject shopping center. Mr. Mazzola discussed his study, wherein he notes that only 475 spaces were available as several parking spaces had been fenced off due to the halted construction. Despite this reduction, Mr. Mazzola inspected the subject shopping center throughout December, which is known to be the busiest time of year for shoppers. The study included four visits on December 23, 2018, which was a Sunday in the height of the holiday season. Mr. Mazzola found that each time he visited the subject shopping center, parking spaces were available. Mr. Mazzola concluded that, since many additional parking spaces would become available after completion, the proposed pad site would have a minimal impact on traffic, parking, and the area generally.Members of the community as well as board members voiced their opposition at the public hearing, and letters from Town officials were additionally provided.Applicable LawThe instant proceeding challenges the determination of the BZA respondent. The determination of the BZA, an agency, is reviewed under the “arbitrary and capricious” standard of CPLR §7803(3) (see Matter of Sasso v. Osgood, 86 N.Y.2d 374). A determination of a zoning board will be sustained if it has a rational basis and is supported by substantial evidence (Efraim v. Trotta, 17 A.D.3d 463). Expert opinion regarding traffic problems may not be disregarded in favor of generalized community objections (Veysey v. Zoning Bd. Of Appeals, 154 A.D.2d 819). Generalized or unsubstantiated complaints from neighbors, unsupported by empirical or expert evidence, are generally insufficient for a zoning board to base its decision (Matter of Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 68 A.D.3d 62, citing Ifrah v. Utschig, 98 N.Y.3d 304).When work of a substantial character had been commenced prior to an amendment to a zoning provision or regulation, and enforcement would therefore cause serious loss to the owner, the regulation may be declared inoperative as affecting “vested rights” (People v. Miller, 304 N.Y. 105). Vested rights cannot be acquired in reliance upon an invalid permit (Matter of Astoria Landing, Inc. V. New York City Envtl. Control Bd., 148 A.D.3d 1141).DiscussionHere, contrary to the ZBA’s claims, the subject building permit was valid when issued, and the subsequent change in the method of calculating off-street parking is akin to a change in a zoning regulation rather than an error invalidating the petitioner’s permit. Accordingly, by obtaining the subject building permit in 2014, renewing for three consecutive years, excavating the area, and pouring a foundation prior to the stop work order being issued, petitioner has demonstrated a “vested right” in the planned construction (see People v. Miller, supra).Further, although a zoning board is typically entitled to rely on its members’ personal knowledge and observations, no evidence was offered to substantiate the claims in opposition that the subject shopping center has issues with parking or traffic, let alone any evidence of the impact the proposed pad site would have (see Hampshire Mgmt. Co. v. Nadel, 241 A.D.2d 496; see also Efraim, supra). The petitioner’s expert’s study was the only evidence submitted regarding traffic and parking issues, and as such, the BZA’s determination was not based on substantial evidence (see Veysey, supra; see also Efraim, supra).The instant matter is distinguishable from matters where an expert’s testimony actually supported the zoning board’s conclusion (see Matter of Bonefish Grill, LLC, supra; see also Market Squarre Properties, Ltd. v. Guilderland Zoning Bd. of Appeals, 66 N.Y.2d 893) as the petitioner’s expert made a finding based on his study that the proposed pad site would have a minimal impact on parking and traffic issues, and no opposing evidence existed in the record. As only generalized and unsubstantiated claims were offered to the contrary, the determination of the respondent must be annulled.ConclusionIn light of the foregoing, it is herebyORDERED that the petition is granted.Dated: June 10, 2019
