Posted by: Patricia Salkin | February 29, 2008

NY Appellate Court Finds Variance Condition Requiring Chaining Parking Lot Entrance to Prevent Overnight Parking Lacked Rational Basis

The Appellate Division, Second Department upheld a denial of an area variance to permit the erection of a four-foot high stockade fence on two property lines the professional business use shared with the residence, but they vacated the condition imposed on four other area variances related to the parking lot on the premises which required the petitioners to install a chain across the entrance to the driveway to prevent overnight parking at times when the petitioner’s offices were not open.             

While noting that zoning boards of appeal may impose reasonable conditions on the granting of variances that are directly related to, and incidental to, the proposed use of the property where they are aimed at minimizing adverse impact to an area that might result from the approval of a variance request, the conditions will be annulled if they are unreasonable or improper.  Here, the petitioners obtained a building permit for their parking lot in 1995, but in 2003 the building inspector notified them that the permit was issued in error because they had not complied with the Town ordinances applicable to property in a professional business district.  The petitioners then applied to the zoning board of appeals for the needed variances.  Following a hearing, the variance for the four foot high stockade fence that was already installed was denied, and the four remaining requested variances were granted conditioned on installation of a chain across the parking lot to prevent overnight parking. With respect to the fence, the Court found that the board properly applied the balancing factors set forth in state statute for the granting of an area variance, and therefore the denial was not arbitrary or capricious. The Court said that although the condition requiring the petitioners to prohibit overnight parking had a rational basis in that it was directly incidental to the petitioners’ use and minimized any adverse impact on neighboring property resulting from the granting of parking lot variances, no rational basis existed for the condition requiring that the lot be chained.     

Voetsch v. Craven, 2008 WL 384612 (N.Y.A.D. 2 Dept. 2/13/2008). 

The opinion can also be accessed at:

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