Posted by: Patricia Salkin | December 27, 2018

NY Appellate Court Upholds Variance Denials to Enable More Apartments for Student Housing

Petitioner owns property that contains eight buildings with one- and two-bedroom apartments leased to college students.  Petitioner sought to create additional housing on this property and applied first for 5 area variances, later withdrew 2 but continued with the 3 to increase the number of dwelling units based on the lot size, decrease the minimum living area per unit and decrease the required number of parking spaces.  The ZBA denied the variance requests and the Supreme Court upheld the decision.  The petitioner appealed.

The appellate court upheld the decision finding that the ZBA’s decision was supported by the record and had a rational basis, and that the Board properly applied the balancing test, and noted that when rendering its decision, the ZBA was “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational” (Matter of Merlotto v. Town of Patterson Zoning Bd. of Appeals, 43 A.D.3d 926, 929, 841 N.Y.S.2d 650 [2007]; see Matter of Cohen v. Town of Ramapo Bldg., Planning & Zoning Dept., 150 A.D.3d 993, 994, 54 N.Y.S.3d 650 [2017] ).  The Court noted that there were “large differences between a project as permitted under the zoning regulations and the relief requested by petitioner,” including that the minimum lot size would permit 154 units on the property, whereas petitioner sought permission for a total of 409 apartments. Also, the petitioner wanted to reduce the minimum living space per unit from 750 square feet to 474 square feet, and to reduce the number of required parking spaces from 818 to 309. Further the petitioner intended to lease to 562 residents, whereas in the apartments currently on the property petitioner leases to 222 residents. The court noted that “the record also contains information addressing the potential negative changes to the character of the neighborhood or detriment to nearby properties.” Although the property is located in a mixxed-use zone, most of the immediately-adjacent streets contain predominantly one-family residences.

The court also noted that, “rather than setting a minimum living area per person or bedroom, the Vestal Town Code sets forth a minimum living area per “family,” which is defined as, among other things, any number of related persons occupying a single dwelling unit, or up to five unrelated persons occupying a single dwelling unit (see Town of Vestal Code §§ 24–1, 24–182[c][2] ). If an area variance were granted reducing the minimum living area to 474 feet, it would be permissible – notwithstanding petitioner’s stated intention to allow only one student to rent each of its one-bedroom apartments – for an entire family…”   the petitioner also acknowledged that the difficulty is self-created.  It was possible for the petitioner to realize the benefit of increased rental units another way, despite the fact that the petitioner felt those changes would not be consistent with its marketing plan.

While there was community opposition to the requested variances, the Court found sufficient evidence in the record to conclude that the decision was not based entirely on community opposition.

Feinberg- Smith Associates, Inc. v. Town of Vestal Zoning Board of Appeals, 2018 WL 6797603 (NYAD 3 Dept 12/27/2018).


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