In a decision that underscores the importance of presenting accurate and truthful information when making a land use application, the Appellate Division in Matter of Green 2009, Inc. v. Weiss, Index No. 2012-06784 (February 13, 2014), recently affirmed the Town of Hempstead Board of Appeals (“BOA”) decision to reopen a prior decision which granted a special exception for a caberet use and then deny the application.
The case arose when the owner of Billy Dean’s Showtime Cafe in Bellmore, which bills itself as “Long Island’s Number 1 Strip Club,” applied to the BOA for a special exception to operate a caberet on Sunrise Highway in Wantagh. When the original application was presented to the BOA in 2010, the applicant represented that the premises would operate as a restaurant and caberet, featuring live music, dancing and other “Las Vegas Style” entertainment. He assured the Board that there would not be “topless,” “bottomless” or other “adult entertainment.” Based on this representation, the BOA approved the application.
However, subsequent to the approval, the BOA voted to reopen the decision when it learned that the caberet use would not be open to the general public and would also exclude minors, which caused the operation to fall within the defined parameters of an “Adult Entertainment Caberet,” rather than a caberet use. Following a new public hearing, the BOA unanimously voted to deny the application based, in part, upon a conclusion that it had misapprehended the actual nature and scope of the applicant’s proposed use, and that this misapprehension arose from what appears to be have been an intentional and studied intent by the applicant to be less than complete and candid in its description of its planned use and the nature of the so-called “Las Vegas Style” entertainment to be offered.
The applicant commenced an Article 78 proceeding arguing, among other things, that the BOA had no right to rehear the matter because it had accrued renovation and other related costs in reliance upon the Board’s initial approval. The Supreme Court concluded that the BOA’s decision was not an abuse of discretion, irrational or based on generalized community objections and dismissed the petition.
On appeal, the applicant argued that the BOA improvidently exercised its discretion when it reopened and reheard the application after it had originally granted it. Specifically, the applicant claimed that the rehearing was improper because he had relied to his detriment on the previously granted special exception, having expended funds renovating and altering the premises for the proposed caberet use. Town Law § 267-a(12) permits a zoning board to rehear its determination, “provided the board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.” In affirming the lower court’s decision and upholding the BOA’s determination, the appellate court did not find the qualifying “reliance” language of Town Law § 267-a(12) to be applicable in this case. Instead, it agreed with the BOA’s finding that the applicant did not rely upon the prior decision in good faith because he intentionally misled the Board concerning the use of the premises at the initial hearing. The court concluded that the BOA’s findings pertaining to the applicant’s lack of candor and good faith were credibility determinations, and issues of credibility were within the sole province of the BOA to resolve.
This decision, together with the same court’s decision in Matter of Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 2009 N.Y. Slip Op. 06837 (2d Dep’t Sept. 29, 2009), make clear that applicants who intentionally mislead local zoning boards do so at great risk not only to their integrity, but to their zoning applications as well.