Posted by: Patricia Salkin | December 29, 2013

NY Appellate Court Upholds Denial of Use Variance for Ski Lift

Petitioner challenged the Village ZBA’s denial of its request for a use variance to permit it to extend a ski lift over a parcel of land that it had acquired. The trial court denied the petition and the appellate court affirmed noting that deference is due to the ZBA where, as here, it’s decision has a rational basis and is supported by substantial evidence.” The court found that the ZBA properly determined that petitioner failed to show that it was entitled to the use variance inasmuch as it failed to establish that it could not realize a reasonable rate of return without the use variance, and petitioner failed to establish that its proposed development would not alter the essential character of the surrounding neighborhood. Although the petitioner presented expert testimony on the first item, the Court noted that it is up to the ZBA to be the ultimate fact-finder. The Court agreed with the Board’s determination that the petitioner’s hardship was self-created inasmuch as petitioner previously had stipulated to restrictions calling for an “undisturbed green area” in the location petitioner now seeks to develop.

Holimont, Inc. v Village of Ellicottville Zoning Board of Appeals, 2013 WL 6824897 (NYAD 4 Dept. 12/27/2013).

The opinion can be accessed at: http://www.nycourts.gov/courts/ad4/clerk/decisions/2013/12-27-13/PDF/1215.pdf


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