Posted by: Patricia Salkin | June 20, 2016

NY Appellate Court Found Board’s Use Variance Determination Had Rational Basis and was Supported by Substantial Evidence

Petitioner owned former Public School 22 and an adjacent parcel on Second Street in the City of Albany, located in an area zoned R–2A for single and two-family detached dwellings and houses of worship. In October 2013, petitioner applied to respondent for a use variance allowing it to raze both the school building and house on the adjacent lot in order to construct a 24–bed community residence for alcohol and substance abuse rehabilitation. Petitioner noted that the prior owner of the school had been granted a use variance in January 2008 to refurbish the school building for a similar purpose, but had then failed to move forward with the project. Following a public hearing, respondent denied petitioner’s application in February 2014. Petitioner commenced a proceeding asserting that respondent’s action was arbitrary because petitioner had satisfied the criteria for a use variance and also that a use variance had been granted to the prior owner. The lower court dimissed the petition, and petitioner appealed.

The court found that Respondent addressed each of the relevant factors regarding a use variance, and its determination that petitioner failed to establish those factors has a rational basis and is supported by substantial evidence. Here, Respondent acknowledged that a potential hardship resulted from the old, unused school building, but noted that petitioner’s plan included demolishing such building and that, once demolished, the site could be used for a conforming use. Furthermore, the project included the adjoining property where a single family residence would be razed, which would result in a nonconforming use replacing a conforming use.

Moreover, even though respondent had determined in 2008 that a community rehabilitation residence would not alter the essential character of the neighborhood, respondent sufficiently distinguished the current application made about six years later. Since the time of the prior application, several other similar residences had been approved in the community resulting in a saturation of such uses. Additionally, the current application resulted in removal of the historical school building whereas the earlier application included refurbishing the structure. Lastly, because at the time that petitioner acquired the property it was aware that its project would be a nonconforming use, the court held that respondent rationally decided that petitioner’s hardship was self-created.

Rehabilitation Support Services, Inc. v City of Albany, 2016 WL 3333371 (NYAD 3 Dept. 6/16/2016)


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