Respondent Town of Newstead Zoning Board of Appeals (ZBA) appeals from a judgment in a special proceeding pursuant to CPLR article 78, which annulled the ZBA’s determination denying petitioner’s request for a use variance authorizing the paving of an alternate runway at the Akron Airport, and granted the requested use variance.
In determining whether there was an undue hardship the court first looked at whether the petitioner could use the land for other means. The petitioner failed to establish that the subject land could not be successfully used for agricultural purposes, that the requested variance would have alleviated the airport’s preexisting financial problems, or even that it would have to stop using the land for airport purposes if its request to pave the alternate runway were denied. Additionally, the deeds proffered by the ZBA demonstrate that petitioner did not acquire portions of the subject property from the former owners until nearly a decade after enactment of the ordinance. The court therefore concluded that the alleged hardship was self-created, and as a result the petitioner failed to establish the fourth component of unnecessary hardship. Finally, the record was silent regarding the paving variance allegedly granted in 2008, and it is unclear from the record whether the 2004 and 2005 variances pertained to the specific property where the alternate runway is located. Therefore, the court reversed the holding and denied the use of the variance.
Christian Airmen, Inc. v Town of Newstead Zoning Board of Appeals, 115 A.D. 3d 1319 (4 Dept. 3/28/2014)