Posted by: Patricia Salkin | February 16, 2020

NY Appellate Court Finds Property Owner’s Hardship of Not Being Able to Use Residential Property for Commercial Use was Self-Created

This post was authored by Matthew Loescher, Esq.


Petitioner 54 Marion Avenue, LLC owned a vacant lot in the City of Saratoga Springs, Saratoga County, 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. This resulted in an application 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, following joinder of issue, found a rational basis in the record for the ZBA’s determination and dismissed the petition on the merits.


Here, although 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 that these problems affected “a substantial portion of the neighborhood,” which included residences lying along the thoroughfare itself. Additionally, the record contained maps and photographs reflecting the surrounding commercial buildup and correspondence from nearby homeowners complaining about how traffic and commercialization have affected them. Based on the aforementioned, the ZBA rationally found that the development in the area did not cause a unique hardship for the property.


As for whether the hardship was self-created, the record reflected the property was zoned for residential use when the owner’s affiliated predecessor-in-title acquired it in 1982. The ZBA further found commercialization in nearby areas was foreseeable by then, since businesses were already present on the thoroughfare. The ZBA also noted that the owner and its related predecessors had long expressed interest in putting the property to nonconforming commercial use, which was reflected in a 1987 application for a use variance and later efforts to market the property for commercial use. As such, there was a rational basis for the ZBA to hold that the hardship was self-created.


54 Marion Avenue, LLC v. City of Saratoga Springs, 175 A.D.3d 1660 (3 Dept. 2019)

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