Posted by: Patricia Salkin | November 14, 2010

NY Appellate Court Upholds Denial of Area Variance For Parking on Front Lawn

Since approximately 1978, the petitioner has parked his vehicle on his front lawn. He contends that, around that time, he applied for and obtained from respondent City an area variance and/or a permit for a curb-cut enabling him to use his front lawn for parking. In September 2007, he received a cease and desist order from the City notifying him that his front-yard parking violated the City’s zoning ordinance. Shortly thereafter, petitioner applied to zoning board for an area variance. After the Board denied his application, he commenced a proceeding challenging the determination, and in an August 2008 order, the court granted the petition, annulled the decision and remanded the matter, finding that the Board left open questions and did not fully address how allowing front yard parking would produce an undesirable change or an aesthetic detriment. 

After a rehearing, the Board again denied petitioner’s application. Petitioner then commenced this proceeding seeking to annul the Board’s denial of his application and a determination that he is entitled to the variance or, alternatively, that the matter be remanded to the Board for another reconsideration. Petitioner also requested that court find the Board in contempt for failing to comply with its August 2008 order. Upon review, the trial court determined that the Board had properly reconsidered petitioner’s application in accordance with its earlier decision and acted rationally in denying petitioner an area variance. Accordingly, the court dismissed the petition, and the petitioner appealed. 

The appellate court noted that the law is well settled that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion. Therefore, a zoning board’s determination will not be disturbed if has a rational basis and is supported by substantial evidence in the record. Furthermore, in determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.  The court found that the Board had further investigated the matter as required, and found that a permit or variance permitting petitioner to use his front lawn for parking was never issued nor was a variance grandfathered in as a legal nonconforming use. As a result, the Board properly applied the balancing test and considered the relevant factors in reaching its determination. The court further found that the Board’s reliance upon a letter submitted by the neighborhood association indicating that allowing a variance for front-yard parking would not be in keeping with the rest of the homes in the neighborhood was valid and that the Board was entitled to consider the use as undermining existing zoning regulations and would set a poor precedent for other property in the neighborhood. Additionally, the variance would have a detrimental impact on the neighborhood and is substantial in nature considering the petitioner’s vehicle was encroaching on the public sidewalk and right-of-way. Finally, the court found that the petitioner’s need for the variance was self-created. 

Russo v. City of Albany Zoning Board, 2010 WL 4342202 (N.Y.A.D. 3 Dept. 11/4/2010) 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2010/508996.pdf


Responses

  1. Professor Salkin: Does New York have any guidelines that are similar to Ohio’s Duncan v Middlefield area variance guidelines?

    • I am not familiar with the guidelines you are referencing. New York has statutory tests for the granting of use and area variances. For area variances it is a 5-part balancing test. For use variances, all four statutory factors must be met.


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