This post was authored by Amy Lavine, Esq.
A New York appellate court decision issued in June reversed the denial of a use variance but dismissed a takings claim regarding the improper denial. The petitioner in the case, 54 Marian Avenue, LLC had entered into a contract to sell a vacant parcel of land contingent on the approval of a use variance to allow a dental practice on the site. The zoning board of appeals denied variance relief, finding that any hardship preventing the property from being used in compliance with the Urban Residential zoning was not unique and was self-created. This appeal followed.
To be entitled to a variance, the court explained, 54 Marion Avenue had the burden to establish four prerquisites: (1) that none of the permitted uses of the property would allow them to realize a reasonable return; (2) this hardship resulted from unique characteristics of the property; (3) their proposed use would be consistent with the essential character of the neighborhood; and (4) the hardship was not self-created. The board found that the alleged hardship in this case did prevent a reasonable return and the proposed dentist’s office would be consistent with the neighborhood, but it found the evidence lacking with respect to the second and fourth criteria.
The particular hardship alleged by 54 Marion Avenue stemmed from the property’s location at the intersection of a side street and a major thoroughfare. It claimed that both heavy traffic and increased commercial development along the road made the site undesirable for permitted residential uses, and it supported this position with affidavits from real estate experts as well as evidence regarding previous failed attempts to sell the parcel as a residential property. To the extent that the zoning board agreed that the particular location created a financial hardship, the court found that it was inconsistent for the board to simultaneously determine that the hardship was not unique. The court also disagreed with the board’s determination that any hardship was self-created, emphasizing that 54 Marian Avenue acquired the parcel long before the traffic and commercialization problems became serious enough to necessitate variance relief.
While 54 Marian Avenue stated a viable challenge against the zoning board’s variance denial, the court found that its regulatory takings claim had to be dismissed as unripe. Although the final decision requirement was met in this case by the board’s variance denial, the court noted that 54 Marian Avenue had failed to seek just compensation by filing a state claim for inverse condemnation.
54 Marian Avenue, LLC v City of Saratoga Springs, 162 A.D. 3d 1341 (N.Y. App. Div. 3d Dept. 6/21/2018)
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