Posted by: Patricia Salkin | October 12, 2008

Use Variance for Photography Studio in Residential District Upheld

Neighbors appealed a decision of New York City Board of Standards and Appeals to grant a use variance to an applicant who purchased a lot zoned for residential use, who then demolished the home on the property and applied for the variance to construct a photography studio in its place.  The Board’s decision was upheld by the appeals court who found a rational basis in the record and determined that the Board did not act in an illegal, arbitrary or capricious manner, and that they not abuse their discretion. 


The New York City Zoning Resolution requires that the following five specific criteria be met prior to the issuance of a use variance: “(a) that because of the ‘unique physical conditions’ of the property, conforming uses would impose ‘practical difficulties or unnecessary hardship;’ (b) that also due to ‘unique physical conditions’ of the property, conforming uses would not ‘enable the owner to realize a reasonable return’ form the zoned property; (c) the proposed variances would ‘not alter the essential character of the neighborhood or district;’ (d) the owner did not create the practical difficulties or unnecessary hardship; and (e) only the ‘minimum variance necessary to afford relief’ is sought.”


The Court found that as to the first factor, the Board determined that other properties in the area with similar characteristics had unique physical conditions such that practical difficulties or unnecessary hardship would arise with conforming use. The Board further found that the property would not produce a financially feasible return if developed for any “as of right” uses, and that the fact that the lot in question was purchased with the knowledge that it was subject to the restrictions sought to be varied, did not in and of itself create a self-created hardship.


This was a 3-2 decision, and I think the dissent is probably in the right here. They pointed out that the trial court found that the hardship was indeed self-created and the dissent asserts that the record clearly revealed this and that the finding of the Board otherwise is an example of the arbitrary nature of their actions.  The trial court also determined, based upon the record, that the lot in question was not unique.  Further, they point out that while the lot in question is adjacent to a commercial area, and that this may impair its desirability for residential use, it did not render it unmarketable or unfeasible for residential use, and the Board had evidence before it to support this.  The dissent also points out that the alleged hardship was that the applicant owned a catering hall across the street and felt the need to have a photography component to the catering hall.  The dissent further disagreed with the Board’s assessment that the surrounding area and the character of the neighborhood had substantially changed.


Vomero v. City of New York, 2008 WL 4427950 (N.Y. A. D 2 Dept. 9/30/2008). 


The opinion can be accessed at:

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