Posted by: Patricia Salkin | February 16, 2011

NY Appellate Court Upholds Denial of Special Use Permit for Parking

The petitioner, owner of an adult cabaret lounge, sought to purchase a lot from the City of Rochester for use as additional parking. Such use would require a special use permit and the contract for sale was contingent upon this approval. Further, the City ordinance prohibits the sale of real property to a purchaser who owns other property not in compliance with the City’s codes and ordinances. Petitioner owns a lot adjoining he parcel where the cabaret is located which has been used for parking, but such use did not comply with the requirement for a special use permit. Petitioner applied for, and was denied, special use permits to allow for parking on both parcels. The Planning Commission’s denial was based on their finding that the proposed use was not in harmony with the goals, standards, and objectives of the City’s comprehensive plan, despite claims that neighbors supported the application. The petitioner did not seek judicial review of the denial for the lot he wished tom purchase from the City, but did seek review over the denial for the lot he already owned and was currently using for parking. He claimed, with respect to the second denial, that a special use permit was not needed because his use was a legal nonconforming use.  The court concluded that the petitioner failed to exhaust his administrative remedies with respect to this contention since he never raised this contention before the Planning Commission, and the Court has no discretionary authority to review the merits of that contention.

Esposito v City of Rochester, 2011 WL 458900 (N.Y.A.D. 4 dept. 2/10/2011).  

The opinion can be accessed at: http://www.courts.state.ny.us/ad4/Court/Decisions/2011/02-10-11/PDF/1599.pdf


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