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Zoning Board of Appeals
Special Meeting
August 27, 2008
7:30 a.m.
A Special Meeting of the Zoning Board of Appeals of the Village of Briarcliff Manor, New York was held in the Village of Briarcliff Manor Village Hall, at 1111 Pleasantville Road, Briarcliff Manor, New York on the 27th of August 2008 commencing at 7:30 a.m.
Present
Christopher Bogart, Member
John O’ Leary, Member
Stephen Smalley, Member
Also Present
Christine Dennett, Village Clerk
Absent
Ronald Alenstein, Chairman
Hillary Messer, Member
David Turiano P.E., Building Inspector
V-7-2008 – 72-94 North State Road LLC – 72-94 North State Road
Meeting called to order at 7:30am
Discussion:
Acting Chairman Smalley stated many Dunkin Donuts get their deliveries via tractor trailer and the applicant’s parking lot was not conducive to that.
Member O’Leary stated it wasn’t discussed at earlier meetings but it was a legitimate concern. He stated it made it clear the site was not a good location for a Dunkin Donuts. He requested it be part of the meeting’s minutes.
Member Bogart stated he was reluctant to say whether or not a delivery could be made via tractor trailer in the shopping center without further study.
Decision:
Upon motion by Member O’Leary, seconded by Member Bogart, the Board voted unanimously to approve the resolution.
EXTRACT FROM
MINUTES OF A SPECIAL MEETING OF
THE ZONING BOARD OF APPEALS OF
THE VILLAGE OF BRIARCLIFF MANOR
WEDNESDAY, MAY 14, 2008 7:30 p.m.
PRESENT: Ronald Alenstein, Chairman
Stephen H. Smalley
John P. O'Leary
Hillary Messer
Christopher Bogart
ALSO PRESENT: David Turiano, Village Engineer/Building Inspector
Daniel Pozin, of Wormser, Kiely, Galef & Jacobs LLP,
Counsel to the Zoning Board of Appeals
Rhonda Alomar, Recording Secretary
Application of 72-94 North State Road LLC, 72-94 North State Road (#V-7-2008)
After due discussion and deliberation, further consideration and review, on motion by Member Smalley, seconded by Member O’Leary, and carried, the following Resolution was proposed:
WHEREAS, the Building Inspector of the Village of Briarcliff Manor received an application dated August 30, 2007, for certain modifications of vacant space at 78 North State Road, said premises being located in the B-1 business district (the “B1 Zone”) and said premises being known and designated on the tax map of the Village of Briarcliff Manor as Section 98.10, Block 2, Lot 31 (the “Property”), which modifications were intended to accommodate the lease of the space previously used as a delicatessen for use as a retail Dunkin Donuts shop; and
WHEREAS, the Village of Briarcliff Manor Zoning Code (the “Zoning Code”), in particular, Schedule 220:A7, Column 2, Permitted Principal Uses in a B1 Zone, reads as follows:
“A fully enclosed structure for sale of goods at retail, or performance of customary personal service or services clearly incident to retail sales, primarily for the convenience of the inhabitants of the Village and the immediate locality, but no fabricating, manufacturing, converting, altering, finishing or assembling shall be permitted except as incident to such retail sales and no operation shall be permitted which would be offensive, obnoxious, or detrimental by reason of vibration, dust, fumes, odor, noise, lights or traffic generation and resultant congestion . . .”
WHEREAS the small shopping center in question was built in 1964, subsequent to enactment of the quoted section of the Zoning Code (which has not been amended since), so that the shopping center was built knowing that it would be subject to land use regulation that ties use to traffic generation and congestion given the particular situation of the B1 Zone in the Village and the municipality’s need to balance competing municipal interests in the B1Zone; and
WHEREAS the Village’s B1 Zoning Code provisions appear to be a reasonable attempt to balance those competing municipal interests, consistent with the Supreme Court’s views when examining this very zoning ordinance more than forty years ago that “balance” and the “need for flexibility in this general area” support a role for municipalities balancing such interests; and
WHEREAS unlike many shopping center land use matters in municipalities without comparable zoning provisions, the Village thus has a clear, long-standing and appropriate role in balancing the use to which this shopping center is put (including a role in regulating the use intended by prospective tenants) against other municipal interests such as regulating traffic generation and congestion, and the shopping center was built and has always operated under and with knowledge of these unusual zoning provisions;
WHEREAS, by letter dated September 18, 2007, the Building Inspector requested the Applicant to provide a traffic study demonstrating that the proposed use would not contravene the Zoning Code by creating traffic generation and congestion of an impermissible nature; and
WHEREAS, by letter dated September 20, 2007, P. Daniel Hollis, III, Esq. of Shamberg Marwell Davis & Hollis, P.C., attorney for the owner and managing agent of the Property, Lordae Property Management (“Applicant”), the Applicant objected to the Building Inspector’s request for a traffic study and demanded that a building permit be issued pursuant to the August 30, 2007, application; and
WHEREAS, the Building Inspector then himself obtained from the Village’s Planning Consultant certain data generated by the Institute of Traffic Engineers (“ITE”), comparing traffic generation rates of a Deli/Convenience Market and a Dunkin Donuts store, as well as traffic generation calculations for a comparably sized coffee shop, donut and ice cream shop, and donut and sandwich shop; and
WHEREAS, having received no traffic study or information from the Applicant, by letter dated November 13, 2007, to the Applicant’s Engineer, the Building Inspector denied the Applicant’s August 30, 2007, building permit application. (The “November 13, 2007 Determination”); and
WHEREAS, said denial was based upon the Building Inspector’s review of the aforementioned traffic data he obtained as well as his own knowledge as a licensed Professional Engineer and his familiarity with the Property and surrounding area roadways and concluded that the proposed Dunkin Donuts shop would generate traffic and congestion in a manner violating Zoning Code Schedule 220:A7, column 2, Permitted Principal Uses in the B1 Zone, Item 1, which provides in pertinent part that “. . . no [retail] operation shall be permitted which would be offensive, obnoxious, or detrimental by reason of . . . traffic generation and resultant congestion . . .”, and
WHEREAS, the November 13, 2007, the Building Inspector also provided the Applicant with yet another opportunity to submit for his consideration, “any data leading to a contrary finding”, to wit, that the traffic generation and congestion that would result from the proposed Dunkin Donuts shop at the Property would not be offensive, obnoxious or detrimental; and
WHEREAS, the Building Inspector provided the ZBA with a memorandum also dated November 13, 2007, detailing the his analysis in arriving at the November 13, 2007 Determination, a copy of which was provided to the Applicant’s Attorney; and
WHEREAS, the Applicant submitted to the ZBA an application dated December 5, 2007, for an interpretation and alternatively an appeal of the Building Inspector’s November 13, 2007 Determination for the reasons set forth in the September 20, 2007, letter of Applicant’s Attorney, which application was subsequently withdrawn as the Dunkin Donuts was no longer interested in the space at the Property; and
WHEREAS, on or about February 4, 2008, Applicant’s Attorney advised Village Counsel that Dunkin Donuts was once again interested in leasing the subject space and by letter dated February 25, 2008, delivered a “Parking Analysis” dated February 22, 2008, prepared by John Meyers Consulting, P.C. advising that there was “more than adequate parking” at the Property for the intended Dunkin Donuts use, which Parking Analysis was provided to the Building Inspector for his review but which did not address the issue of traffic generation or congestion; and
WHEREAS, the Building Inspector rejected the said Parking Analysis as irrelevant to his November 13, 2007 Determination as the issue of concern was not parking, but rather the traffic generation and congestion of a Dunkin Donuts shop as compared to the prior delicatessen use of the subject space at the Property whereupon the Applicant was provided with an additional opportunity to submit traffic data that might vary from that which the Building Inspector relied upon, and Applicant did not avail itself of this further request; and
WHEREAS, on or about the first day of March 2008, Applicant’s Attorney requested the opportunity to renew the Applicant’s application in opposition to the November 13, 2007 Determination and appear before the ZBA at its regularly scheduled April 1, 2008, meeting, whereupon the ZBA Chairman agreed to allow the matter to be heard at a public hearing on April 1, 2008; and
WHEREAS, by letter dated March 12, 2008, Applicant’s Attorney submitted a new application on behalf of the Applicant, for an interpretation and appeal of the November 13, 2007 Determination (the “Application”) upon the same bases as set forth in the September 20, 2007, letter of Applicant’s Attorney submitted in support of the prior application and in accordance with an additional letter dated March 12, 2008, in further support of the Application; and
WHEREAS, on April 1, 2008, a duly noticed Public Hearing was convened by the ZBA at which time the Application was discussed in detail and at which time all those wishing to be heard on the Application were provided the opportunity to be heard; and
WHEREAS, at said Public Hearing, the ZBA determined that a written response from Village Counsel was necessary in order for the ZBA to consider the various issues raised in the September 20, 2007, and March 12, 2008, letters of Applicant’s Attorney whereupon the Public Hearing was adjourned to a special meeting scheduled for May 14, 2008, and
WHEREAS, by letter dated May 1, 2008, Village Counsel provided the ZBA with a review memorandum also dated May 1, 2008, addressing the issues raised in connection with the Application and in particular in response to issues raised in the September 20, 2007, and March 12, 2008, letters of Applicant’s Attorney; and
WHEREAS, Applicant’s Attorney repeatedly conceded that the proposed Dunkin Donuts shop would create increased traffic; and
WHEREAS, the Public Hearing on the application was continued on May 14, 2008, at which time the Application was discussed in detail and at considerable length, and thereafter, the public hearing was closed at which time a vote was taken to deny the Application for the reasons stated below.
GENERAL FINDINGS
1. The ZBA hereby adopts the recitation of facts sets forth above as if fully set forth herein as a general statement of findings.
2. Each member of the ZBA is fully familiar with the Property and its operation including its ingress, egress and traffic circulation, as well as area traffic patterns.
3. The Building Inspector of the Village of Briarcliff Manor has authority to enforce the Village’s Zoning Code and to issue building permits that conform to the Zoning Code as well as other applicable state, county and local laws. The Building Inspector is also authorized to deny building permits that do not so conform.
4. The ZBA is authorized to interpret the Zoning Code and to reverse, affirm or modify the Building Inspector’s determination to deny a building permit. The Village’s Zoning Code specifically provides that “[i]n interpreting and applying the provisions of this chapter they shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, comfort and general welfare.” Zoning Code § 220-20. Further, “[n]o building or land shall hereafter be used or occupied and no building or part thereof shall be erected, moved or altered unless in conformity with the regulations herein specified for the district in which it is located or is to be moved.” Zoning Code § 220-13.
5. The subject Property is located in the B1 Zone. Permitted uses in the B1 Zone are set forth in Schedule 220:A7, column 2, Permitted Principal Uses, Item 1, of the Zoning Code and include in pertinent part a “fully enclosed structure for sale of goods at retail . . .and no operation shall be permitted which would be offensive, obnoxious, or detrimental by reason of . . . traffic generation and resultant congestion . . .” (the “B1 Zone Regulation”).6. At the May 14, 2008, Public Hearing, Applicant’s Attorney stipulated that the focus of the ZBA’s review of the Application is limited to considering whether the Building Inspector was correct in denying the application for a building permit to allow modifications to the
subject vacant space to permit the operation of a Dunkin Donuts shop, by virtue of the fact that said use would produce traffic that would be “obnoxious, offensive and detrimental” as set forth in the B1 Zone Regulation.
SPECIFIC FINDINGS
The Property and Its Environs
The Property is located at a major and often congested intersection of New York State Route 9A, running north and south, and North State Road, which runs east and west. Route 9A is a primary commuting corridor through Westchester County, while North State Road and South State Road on the other side of 9A are substantial collector roads which empty onto 9A.
Complicating and exacerbating the traffic flow at this intersection is the access to the subject Property. There is a single curb cut providing access to the Property located on the north side of North State Road approximately 100 feet from the intersection. This entrance to the Property is regularly blocked by traffic on North State Road waiting for the traffic light at the Intersection to change. As a result, vehicles traveling east bound on North State Road have difficulty making the left turn into the Property. As a further result, as North State Road is comprised of a single lane traveling in each direction, traffic will back up into the Intersection as a result of vehicles waiting to make the left-hand turn into the Property. Again this leads to significant conflicts
with NYS Route 9A. Exiting the Property is also difficult when traffic congestion is present.
To be sure, much of this congestion is not the result of the presence of the shopping center. However, as noted previously, the Village is entitled under the relevant provisions of the Zoning Code to act to limit property use that will create further detrimental traffic congestion and generation.
In that regard, it is undisputed that locating a Dunkin Donuts shop at the Property will result in increased traffic generation and congestion, particularly during the already congested morning commute times (which are Dunkin Donuts’ highest volume periods) and given that Dunkin Donuts relies on a high volume business model.
Applicant’s Attorney argues that managing traffic is the Village’s responsibility, and that his client should be able to rent to any business regardless of its potential for traffic generation and congestion. In many municipalities, under prevailing “shopping center” law, that might be true, but it is not true here, under the relevant Zoning Code provisions that predate construction of the shopping center. There is no unfair surprise to the shopping center owner here, or any recently taken municipal action to attempt to block a particular tenant or class of tenants – the situation here is as it has been for decades. We need not decide here where the line should exist between acceptable traffic generation and traffic generation and congestion that is
obnoxious and detrimental, but to give the statutory language any meaning at all, the proposed Dunkin Donuts shop must be on the impermissible side of that line given its reliance on “high volume, low price” fare and the resultant traffic concentration in the morning rush hour. Indeed, were Dunkin Donuts to be permissible under the Zoning Code, it is difficult to imagine what use would be impermissible, and we must read the Code to give its provisions meaning.
Interpretation of Building Inspector’s Determination.
1. In light of the foregoing discussion and factual recital, the ZBA concurs with the Building Inspector’s determination that the proposed Dunkin Donuts use would result in traffic generation and congestion that is “obnoxious, offensive and detrimental.”
2. The Building Inspector’s November 13, 2007 Determination is supported by specific relevant data as noted above, as well as knowledge of the deleterious condition of the Intersection.
3. The Applicant was accorded ample opportunity to submit its own traffic study that might challenge this data, or the Building Inspector’s November 13, 2007 Determination, not once, but on at least three specific occasions, in writing: (a) by the Building Inspector’s letter of September 18, 2007, (b) by the Building Inspector’s letter of November 13, 2007, and (c) by Village Counsel’s email transmittal of February 27, 2008. The Applicant did not avail itself of this opportunity.
4. In fact, the Applicant’s Attorney conceded several times during the Public Hearing before the ZBA that the proposed Dunkin Donuts use if approved will result in increased traffic generation and congestion. Although Applicant’s Attorney disputed whether such an increase would be “obnoxious, offensive and detrimental” he offered nothing to support his position. Applicant presented no testimony or any credible traffic data from any traffic experts or engineers despite the repeated requests for same. Nor did the Applicant provide any suggestion or plan for addressing the ZBA’s concerns with regard to the ingress and egress conflicts inherent with the location of the Property.
5. The ZBA agrees with the Building Inspector that the proposed Dunkin Donuts use would, if permitted, result in an increase in traffic generation and congestion. Further, based upon the record before it and the ZBA’s considerable familiarity with the Property and its operation including, its ingress, egress and traffic circulation, as well as area traffic patterns, the ZBA agrees with the Building Inspector’s November 13, 2007 Determination that such increase in traffic generation and congestion would be “obnoxious, offensive and detrimental.” Accordingly, the ZBA’s interpretation of the Building Inspector’s November 13, 2007 Determination is that it was properly and correctly rendered.
Appeal of Building Inspector’s Determination.
In accepting and agreeing with the Building Inspector’s November 13, 2007 Determination, it is axiomatic that the ZBA must deny an appeal of said Determination. The ZBA can find no grounds within its purview to otherwise disturb or set aside said Determination.
NOW THEREFORE, upon consideration of the application of 72-94 North State Road LLC, to the Village of Briarcliff Manor Zoning Board of Appeals for an interpretation of the Building Inspector’s determination of November 13, 2007, and in the alternative an appeal of the Building Inspector’s said determination with respect to that certain property located in the B1 Retail Business district at 72-94 North State Road, said premises being known and designated on the Tax Map of the Village of Briarcliff Manor as Section 98.10, Block 2, Lot 31,
BE IT RESOLVED, that the Board hereby confirms the Building Inspector’s authority to enforce the provisions of the Village of Briarcliff Manor Code, Zoning Ordinance Schedule 220:A7, column 2, Permitted Principal Uses, Item 1, providing in pertinent part that “. . . no [retail] operation shall be permitted which would be offensive, obnoxious, or detrimental by reason of . . . traffic generation and resultant congestion” by denying a building permit for an otherwise permitted use; and
BE IT FURTHER RESOLVED, that the Board hereby finds the Building Inspector’s denial of the Applicant’s building permit to be sufficiently substantiated on the record and upholds said determination.
ON THE ADOPTION THE RESOLUTION HEREIN:
VOTE: Ayes: Christopher Bogart, Member
John O’Leary, Member
Stephen Smalley, Member
Noes:
Absent: Ronald Alenstein, Chairman
Hillary Messer, Member
ADJOURNMENT
Upon motion by Member O’Leary, seconded by Member Bogart, the Board voted unanimously to adjourn the meeting at 7:35 a.m.
Respectfully submitted by,
Christine Dennett
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