Posted by: Patricia Salkin | June 22, 2015

NY Appellate Court Reverses Denial of Area Variance for Parking Spaces Finding Decision Irrational and Arbitrary

Petitioner applied for, and was denied, an area variance to construct a proposed parking facility for 28 spaces on an unimproved lot it owns that sits adjacent to a 211-unit building it owns with 160 on-site parking spaced for cooperative owners. The Zoning Board of Appeals denied the requested variance on the grounds that, “the requested variance would cause an undesirable change in the character of the surrounding area and cause negative aesthetic and visual impact on nearby properties.” The lower court upheld the denial and the appellate court reversed. The Court noted that while Gen. City L. sec. 81-b sets forth the balancing test for the granting of an area variance and while the board has broad discretion in considering an application for a variance, conclusory findings are not sufficient. While the board here concluded that the requested variance was substantial, the court found that its determination was otherwise conclusory and lacked an objective factual basis. Further the court noted that the only thing in the record were subjective objections and general community opposition. The Court noted, “In light of the current condition of the property, the legality of using the lot as a small parking lot, and the fact that the lot is fenced so as to block ground-level water views, the ZBA failed to the explain how the expansion of the number of spaces in the lot would change the character of the neighborhood.” Finding the decision irrational and arbitrary, the court remanded the matter to the zoning board with instructions to issue the requested area variance.

Marina’s Edge Owners Corp. v City of New Rochelle Zoning Board of Appeals, 2015 WL 3605111 (NYAD 2 Dept. 6/10/2015)

The opinion can be accessed at: http://www.nycourts.gov/courts/ad2/calendar/webcal/decisions/2015/D45635.pdf


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