NY Appellate Court Upholds Denial of Variance to Build Dental Office

This post was authored by Matthew Loeser, Esq.

Petitioner 54 Marion Avenue, LLC owned a vacant lot in the City of Saratoga Springs, in a zoning district where commercial uses were generally forbidden. Petitioner Maple Shade Corners, LLC agreed to purchase the property if it was permitted to build a nonconforming dental office on the site. As such, Maple Shade applied to respondent Zoning Board of Appeals of the City of Saratoga Springs for a use variance. The ZBA denied the application, and petitioners commenced this CPLR article 78 proceeding and plenary action. The Supreme Court granted respondents’ motion to dismiss the complaint for failure to state a cause of action. On appeal, the court reinstated “a viable claim attacking the ZBA’s determination” and remitted for further proceedings. The Supreme Court found a rational basis for the ZBA’s determination and dismissed the petition on the merits.

At the outset, the court noted that to qualify for a use variance, petitioners were required to demonstrate “that they could not realize a reasonable return if the property is used for a permitted purpose, the hardship results from unique characteristics of the property, the proposed use will not alter the essential character of the neighborhood, and the hardship has not been self-created.” Here, while the property’s proximity to the intersection of a residential street and a thoroughfare exposed it to traffic and congestion that impacted its value, the ZBA found these problems affected a substantial portion of the neighborhood, which included residences located along the thoroughfare itself.  As such, the ZBA had a rational basis in holding that the development in the area did not cause a unique hardship for the property.

As to whether the hardship was self-created, the record reflected the property was zoned for residential use when the owner’s predecessor in-title acquired it in 1982. Additionally, the owner and its related predecessors had previously expressed interest in putting the property to nonconforming commercial use, as evidenced by their 1987 application for a use variance and later efforts to market the property for commercial use. Moreover, the record reflected these actions deterred a residential sale, caused the owner to incur mounting carrying costs over time, and impaired the owner’s ability to recover those costs by demolishing a residence on the property that it had allowed to deteriorate and then attempting to sell the property as a vacant lot. Accordingly, the court held that there was a rational basis for the ZBA to conclude that the hardship was self-created.

54 Marion Avenue, LLC v. City of Saratoga Springs, 2019 WL 4307913 (NYAD 3 Dept. 9/12/2019)