Posted by: Patricia Salkin | April 30, 2009

Use Variance for Parking Lot in Residential District Upheld

Following the granting of a use variance to convert a parcel in a primarily residential zoning district into a commercial parking lot, neighbors appealed. Although they waited until after the parking lot was completed, the Court noted at the outset that this did not moot the petitioner’s appeal. The Court did reject their claim, however, that the zoning board lacked jurisdiction to grant the application. The Court found that the granting of a variance did not intrude on the City Council’s authority by “destroying the general scheme” of the zoning law. In fact, the Court noted that the zoning code specifically granted to the zoning board the authority to issue use variances. Further, the court noted that the board’s decision was rational and supported by substantial evidence. The applicant, said the Court, met its burden of demonstrating that it could not realize a reasonable return with respect to the property, that the hardship was unique, it was not self-created, and that the requested variance would not alter the essential character of the neighborhood.

 

Abrams v. City of Buffalo Zoning Board of Appeals, 2009 WL 1099992 (N.Y.A.D. 4 Dept. 4/24/2009).

 

The opinion can be accessed at: http://www.courts.state.ny.us/ad4/Court/Decisions/2009/04-24-09/PDF/0535.pdf



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