Following the approval of a use variance application to allow the use of two parcels in an M-1 light industrial district for a mixed use development project that will include student housing, other residential uses, a hotel, and commercial uses, petitioners appealed seeking to annul the variances. In upholding the trial court’s dismissal, the appeals court agreed that the applications met the requirements for a use variance pursuant to General City Law §81-b[3]. Concluding that the determination of the zoning board of appeals had a rational basis and was supported by substantial evidence, the Court explained that the applicants demonstrated that the restrictions on the property caused an “unnecessary hardship.” The Court determined that the applicants established by dollars and cents proof that they could not realize a reasonable return on their investment since the property had been vacant for 30 years and only 10% to 15% of the space was occupied at the time of applicant, and further, that the prospects for expanding occupancy and generating revenue to cover necessary maintenance, repairs and improvements was marginal. The applicant further established that the hardship was the result of the unique characteristics of the property, and that the variance would not alter the essential character of the neighborhood since the types of mixed uses proposed already exist in close proximity to the property. Lastly, the Court found no reason to disturb the zoning board’s finding that the hardship was not self-created.
O’Connell Machinery Co., Inc. v. City of Buffalo Zoning Board of Appeals, 2009 WL 724410 (N.Y.A.D. 4 Dept. 3/20/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/ad4/court/Decisions/2009/03-20-09/PDF/0274.pdf
