Posted by: Patricia Salkin | June 19, 2017

NY Appellate Court Reverses Decision Denying Application to Renew a Use Variance without the Condition that the Subject Property be Owner-Occupied

Petitioners owned real property in the Town of Hempstead which was improved with a two-family residential dwelling. They submitted an application to the Board of Appeals of the Town of Hempstead to renew a use variance allowing the subject property to be used as a two-family dwelling without the condition that the subject property be owner-occupied. The Board renewed the variance, but denied so much of the application as sought renewal without the condition that the subject property be owner-occupied. The Board renewed the variance on the condition that at least one apartment at the subject property must be owner-occupied at all times. The petitioners commenced this CPLR article 78 proceeding to review the determination denying the renewal without the condition that the subject property be owner-occupied. The Supreme Court denied the petition and dismissed the proceeding.

 

On appeal, the record indicated that the Board relied upon the doctrine of res judicata to deny the petitioners’ request for renewal of the use variance without an owner-occupied condition and stated that, because of this, it was not engaging in an analysis of the merits of imposing an owner occupied condition. The court found that upon concluding that the Board improperly invoked the doctrine of res judicata, the Supreme Court should not have then analyzed the merits of the subject portion of the petitioners’ application, as it would have been proper for the Board to do. As such, the court remitted the matter to the Board for a determination on the merits of so much of the petitioners’ application as sought to renew the use variance without the condition that the subject property be owner occupied.

 

Rodriguez v Weiss, 49 NYS 3d 902 (NYAD 2 Dept. 4/1/2017)


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