Posted by: Patricia Salkin | January 20, 2021

NY Appellate Court Upholds Determination that Use Variance Did Not Permit Premises to Be Used for a Hydro-Excavation Business

 This post was authored by Matthew Loescher, Esq.            

Petitioner 2102 Partners, LLC, was the owner of the subject property, upon which the petitioner WCC Tank Technology, Inc. operated a fuel tank lining business. In January 2017, after receiving complaints from neighborhood residents, the Town of Newburgh Code Compliance Department an interpretation from the ZBA regarding whether certain uses and/or activities were permitted under the terms of the 1982 use variance that had been granted to the past owner. This proceeding was made pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Newburgh, which denied the petitioners’ application for an interpretation that the indoor parking and storage of vehicles with mounted hydrovac equipment was a permitted use pursuant to a 1982 use variance.

On appeal, the court found that while the petitioners claimed that they would be using the hydrovac vehicles in connection with their fuel tank lining business, the testimony of the petitioners’ representative at the public hearing was clear that the petitioners were proposing to use the hydrovac vehicles in connection with an entirely different business. The court concluded that this separate hydro-excavation business was not permitted under the terms of the 1982 use variance. Thus, the ZBA’s determination had a rational basis and was consistent with its April 2017 decision wherein it found that the 1982 use variance did not permit the premises to be used for and in support of a hydro-excavation business.

The court further held that the petitioners failed to show, based on competent financial evidence, and by dollars and cents proof, that they could not yield a reasonable rate of return absent the requested use variance. Accordingly, the ZBA’s determination denying the petitioners’ application for a use variance was not illegal, arbitrary and capricious, or an abuse of discretion. The court therefore affirmed the Supreme Court’s determination to deny the petition and dismiss the proceeding.

WCC Tank Technology v Zoning Board of Appeals of the Town of Newburgh, 2021 WL 191200 (NYAD 2 Dept. 1/20/2021)


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