Posted by: Patricia Salkin | April 13, 2013

NY Appellate Court Upholds One Special Exception but Voids Another as Well as Use Variance

Following the granting of special exceptions and use variances for an application for an autobody business located on a split-zoned parcel, which allowed it to add an addition to the existing premises as well as provide for parking on a portion of the property zoned residential, neighbors appealed.  The appellate court determined that the board did not act illegally, arbitrarily or capriciously, and that its decision had a rational basis with respect to the special exception for the addition. However, with respect to the special exception authorizing the parking area in a residential zone, the court held that the special exception was illegal and annulled the decision.  Further, the use variance that went along with the parking use was also annulled since the landowner “failed to show, based on competent financial evidence, that it cannot yield a reasonable rate of return absent the requested variance.”

Hejna v Board of Appeals of Village of Amityville, 2013 WL 1442463 (N.Y.A.D. 2 Dept. 4/10/2013)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D37845.pdf

 


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: