Posted by: Patricia Salkin | January 30, 2019

NY Appellate Court Rules that Frontage Variance was an Area Variance, Not a Use Variance

This post was authored by Amy Lavine, Esq.

A recent appellate court decision from New York upheld a frontage variance that was granted for a hotel development in the Town of the Newburgh. The court found that the variance was properly treated as an area variance because it involved a “physical requirement” of the zoning regulations, and the record showed that the zoning board’s decision was reasonable and complied with state law.


The court first addressed the hotel’s request for a variance from the zoning ordinance’s requirement that hotels must have “principal frontage” on a state or county highway. Although the petitioners claimed that this should have been treated as a use variance, the court agreed with the zoning board that it was more appropriately considered as a request for an area variance. As the court noted, the enabling act defined area variances in reference to “the dimensional or physical requirements of the applicable zoning regulations,” and it was reasonable for the zoning board to conclude that the “principal frontage” regulation was a “physical requirement.” The variance application also involved the height of the proposed hotel, which the zoning board also classified as an area variance, and the court noted that there was dispute on this point.


In determining whether the area variances were properly granted, the court noted that the zoning board was required by the enabling act to weigh the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community. This analysis must also consider several statutory criteria, including: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.” On the facts of this case, the court determined that the record showed that the zoning board properly considered each of the statutory factors, and its decision to grant the variances was not irrational or an abuse of discretion.


In a final point, the court also concluded that the zoning board acted properly in issuing a negative declaration under the State Environmental Quality Review Act. As it noted, the zoning board filed the required short Environmental Assessment Form, identified the relevant areas of environmental concern, took a hard look at the potential environmental impacts, and made a reasoned elaboration of the basis for its determination.


Route 17k Real Estate, LLC v Zoning Board of Appeals of the Town of Newburgh, 2019 WL 362126 (NYAD 2 Dept. 1/30/2019).

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