Posted by: Patricia Salkin | April 7, 2016

NY Appellate Court Upholds Annulment of Use Variance

Developers filed a preliminary site plan with the Planning Board of the Town of Bedford to construct a New Car Wash with Express Lube & Detail Facility. The majority of the subject property was commercially zoned as “RB,” or roadside business; a portion of the rear of the property, however, was residentially zoned as “R–1/2A,” or residential½ acre. The developers intended to use the R–1/2A zoned portion of the property as a driveway and parking lot. Due to concerns about traffic flow expected to be generated by the proposed project, the Planning Board took lead agency status for the purposes of a review pursuant to the State Environmental Quality Review Act (“SEQRA”) and following traffic reports and public meetings, the Board issued a negative declaration.

Developers then applied to the Town of Bedford Zoning Board of Appeals (“ ZBA”) for use and area zoning variances and a special permit. Following several public meetings the ZBA granted the application. Regarding the use variance, the ZBA found that the applicants could not realize a reasonable return without the granting of the variance and that the hardship had not been self-created. DeFeo sought to annul the Planning Board’s negative declaration and the use and area variances and special permit.

The trial court upheld the SEQRA determination, but found that the ZBA’s determination granting the use variance was not supported by a rational basis in the record, so it annulled that determination. The court also annulled the ZBA’s determination granting the area variances and special permit and the site plan approval by the Planning Board as academic in light of its annulment of the ZBA’s determination granting the use variance.

The appeals court agreed, noting that, “To qualify for a use variance premised upon unnecessary hardship, it is well settled that “a landowner who seeks the use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses.” Here the developers submitted evidence that the residential portion of the property could not be developed for a residence, or for any of the permitted uses in the residential R–1/2A zone, due to the topography, the fact that a septic system could not be supported, and the fact that the residential portion of the property was very narrow. The developers also submitted an appraisal which stated that, if the use variance for the residential portion of the property were not granted, the development potential of the RB-zoned portion of the property would be reduced for the subject carwash project by 27%, for retail purposes by 35%, and for office space purposes by 53%. However, the developers did not submit any actual financial information, such as the original purchase price of the property, the expenses and carrying costs of the property, the present value of the property, the taxes, the amount of any mortgages or other encumbrances, the amount of income presently realized, or an estimate as to what a reasonable return on the entire property or any portion should be.

The Court further noted that entitlement to a use variance is not established merely by proof that the proposed use would be more profitable than a smaller scaled project not requiring a use variance. The developers are entitled to a reasonable return, not the most profitable return.

With respect to the SEQRA finding that Court found that the record showed that the Planning Board took a hard look at the issue of traffic that would be generated by the proposed project.

Defeo v Zoning Bd. of Appeals of Town of Bedford, 2016 WL 1125992 (NYAD 2 Dept. 3/23/2016)

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