Posted by: Patricia Salkin | October 30, 2016

NY Appellate Court Finds Board’s Denial of Owner’s Applications for Renewal of Use and Area Variances was Not Illegal, Arbitrary, or Abuse of Discretion

In 2006, the petitioner applied for a use variance to convert two of the offices on the first floor into three residential apartments, and for an area variance in relation to the off-street parking requirements. In 2007, the Board of Appeals of the Town of Hempstead (hereinafter “ZBA”) granted the applications temporarily, with conditions. In 2009, the petitioner applied for another use variance to convert the remaining office on the first floor into two residential apartments, and for an area variance with respect to the off-street parking requirements. The ZBA denied both of those applications. Petitioner, the owner of building with accessory parking, brought an article 78 proceeding seeking review of determination of town zoning board of appeals that denied its applications to renew use and area variances in connection with conversion of office space to residential apartments and off-street parking requirements and for new use and area variances in connection with additional conversions. The Supreme Court of Nassau County annulled a portion of determination that denied the application to renew use and area variances, but upheld portion of determination that denied application for new use and area variances.

On appeal, the court found that, contrary to the Supreme Court’s determination, the ZBA’s findings of fact provided a rational basis for denying the petitioner’s application for a renewal of the 2007 variance. The ZBA found, among other things, that the petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267–b(2)(b), and the fact that the ZBA previously temporarily approved the same application in 2007 did not relieve the petitioner of its evidentiary burdens in demonstrating “unnecessary hardship” for purposes of renewal of the use variance, or for purposes of seeking an additional use variance. Here, the petitioner failed to show any financial evidence that it could not yield a reasonable rate of return absent the requested use variances. The ZBA’s determination to deny the petitioner’s applications to renew the use variance previously issued in 2007, and for a new use variance, was therefore not illegal, arbitrary, or an abuse of discretion.

Similarly, the court found the ZBA’s determination denying the petitioner’s applications to renew the area variance previously issued in 2007, and for a new area variance, was not illegal, arbitrary, or an abuse of discretion. There, the ZBA was found to have properly considered the benefit to the petitioner if the variances were granted as weighed against the detriment to the neighborhood by such grant. The ZBA found that the area variances were substantial and would adversely impact the nearby residential neighborhood by creating a “disruptive additional demand for on-street parking in the residential area to the south” of the property was rational and supported by the record. Accordingly, the court found the Supreme Court should have denied the petition in its entirety.

Monte Carlo 1, LLC v. Weiss, 38 N.Y.S.3d 228 (N.Y.A.D. 2d Dept. 2016)

 


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