Posted by: Patricia Salkin | November 15, 2016

NY Appellate Court Reverses Order Annulling Petitioner’s Applications to Renew Use and Area Variances

Petitioner owns a two-story brick building with accessory parking located in East Meadow. When originally constructed in 1962, the building comprised three offices on the first floor and five residential apartments on the second floor. 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. The Zoning Board of Appeals of the Town of Hempstead granted the applications temporarily until July 11, 2012, 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.

In December 2012, the petitioner sought rehearing of its 2009 applications, and to renew the use and area variances that had expired on July 11, 2012, but was denied again. Thereafter, the petitioner commenced the instant CPLR article 78 proceeding to annul the ZBA’s determination. The Supreme Court granted the petition to annul the ZBA’s determination to deny the petitioner’s applications to renew the use and area variances previously granted by the ZBA in 2007.

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. The ZBA found that the petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267-b (2) (b). Specifically, the court reasoned that 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, by dollars and cents proof, that it could not yield a reasonable rate of return absent the requested use variances. Thus the ZBA’s determination denying the petitioner’s applications to renew the use variance previously issued in 2007, and for a new use variance, was not illegal, arbitrary, or an abuse of discretion.

The court next found that 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. In its review, the ZBA properly considered the benefit to the petitioner if the variances were granted as weighed against the detriment to the neighborhood by such grant. Based on its weighing of the evidence, the ZBA’s findings 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. The court found that this finding was also rational and supported by the record.

Monte Carlo 1, LLC v. Weiss, 142 A.D.3d 1173 (NY 2 Dept. 2016)

 


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