Posted by: Patricia Salkin | December 18, 2019

NY Appellate Court Affirms Variance and Site Plan Approvals for Three Story Art Gallery and Apartment Building

This post was authored by Amy Lavine, Esq.

The petitioners challenged variance and site plan approvals related to a project that would demolish an existing residence and garage and replace them with a three story mixed use building with an art gallery and eight apartments. The developer also planned to renovate a former church building located on an adjoining parcel and it had already received approvals to develop it as a performing arts center.

The petitioners claimed that the zoning board failed to comply with the state’s environmental review procedures, but the court determined on appeal that this challenge was untimely. As the court explained, the statutory 30-day time period for bringing appeals commenced on July 19, 2017, when the zoning board granted the project’s variances and thereby “committed… to a course of action which could affect the environment.” The petitioners’ appeal wasn’t filed until November 22, 2017, however, well after the 30-day appeals period had already expired.

Even if the petition had filed on time, the court still would have dismissed the case on the merits. The zoning board had broad discretion to grant or deny variances, the court emphasized, and its role on appeal was limited to determining whether the zoning board’s action was illegal, arbitrary, or an abuse of discretion. In this case, the court found that the zoning board acted reasonably and within its authority, as it properly considered and made detailed findings regarding each of the relevant factors set forth in the variance statute.

The court also dismissed the petitioners’ claim that the planning board failed to take a sufficiently “hard look” at the proposal’s enivronmental impacts, as required under the State Environmental Quality Review Act. Its decision to issue a negative declaration under the statute, rather than to prepare a full environmental impact statement, was consistent with lawful procedures and was neither arbirtray, capricious, nor an abuse of discretion. The court also disagreed that the planning board’s approval of the site plan was inconsistent with the city’s comprehensive plan and held instead that its determination had a rational basis and was supported by substantial evidence.

Matter of Campaign for Buffalo History Architecture & Culture, Inc. v Zoning Bd. of Appeals of City of Buffalo, 174 A.D.3d 1304 (4th Dept. 7/5/19).


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