Posted by: Patricia Salkin | January 6, 2015

NY Court of Appeals Holds Requests for Off-Street Parking Variances Should Be Evaluated By Applying the Standards for an Area Variance So Long As the Property Is Intended To Be Used for a Purpose Permitted in the Zoning District

This case arose from an action in which Manhasset Pizza LLC and Fradler Realty Corporation (Applicants) sought approval from the Town of North Hempstead Board of Zoning and Appeals to place a 45–seat, full-service, dine-in restaurant in a storefront situated on Plandome Road in Manhasset, New York. The Board granted the conditional use permit, subject to certain conditions, and the requested variances. Treating the application as a request for area variances, the Board concluded that the benefit to the applicants of granting variances from the Town Code’s parking and loading/unloading restrictions outweighed the detriment imposed on the community. Colin Realty Co., LLC, owner of a neighboring retail building brought a hybrid Article 78 proceeding and declaratory judgment action against town, town’s zoning board of appeals (ZBA), ZBA members, owner of neighboring building, and prospective operator of proposed restaurant in neighboring building, challenging ZBA’s granting, for proposed restaurant, of variances from town code’s parking and loading/unloading restrictions, and alleging that proposed restaurant required a use variance rather than an area variance.

Town Law § 267(1) defines and distinguishes between area and use variances as follows: “Use variance shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations, while “area variance shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.”

The Court of Appeals held that requests for off-street parking variances should be evaluated by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district, overruling Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 282 N.E.2d 299, 331 N.Y.S.2d 397. Therefore, the court held that the Town ZBA properly considered the application for off-street parking variance as a request for an area variance.

Colin Realty Co, LLC v Town of North Hempstead, 2014 WL 5285474 (NY 10/16/2014)

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