Posted by: Patricia Salkin | February 10, 2021

NY Appellate Court Concludes ZBA Properly Denied a Variance from Parking Requirements and Affirmed

This post was authored by Olena Botshteyn, Esq.

In 2004, the petitioner purchased a commercial property in the Village of East Hampton (“Village”). There was a commercial building on the property, which at the time of construction complied with the Village’s parking regulations requiring 1 parking space for every 300 square feet of building floor space. The Village then amended its parking regulations and the new requirement was 1 parking space for every 200 square feet of building floor space and 2 parking spaces for every unit within a building. In 2016, the Village notified the petitioner that it was in violation of the new parking regulations, as a building contained six units and was only permitted to have four pursuant to the certificate of occupancy. The petitioner then applied for a variance asking the Zoning Board of Appeals (“ZBA”) to allow it to retain two units without adding parking spaces. After a hearing, the ZBA concluded that creation of two additional office units by the petitioner constituted “an intensification of its use” and that to comply with the parking regulations 20 parking spaces needed to be added. Since at that moment the property had only 23 parking spaces and there was no access to public parking, the ZBA considered this as a substantial change and denied the application for a variance. The petitioner commenced an action to review the ZBA’s determination, and the Supreme Court dismissed the proceeding. The petitioner then appealed.

On appeal, the court affirmed the decision of the Supreme Court and concluded that the ZBA’s decision was not illegal, arbitrary or capricious and had a rational basis. The court determined that the ZBA conducted the required balancing test, which showed that the variance would exacerbate the issues with parking affecting the building. The court also stated that it was presumed that the petitioner knew about the new parking regulations when it purchased the property, and therefore the hardship was self-created. 

Parsome, LLC v Zoning Board of Appeals of the Village of East Hampton, 191 A.D. 3d 785 (NYAD 2 Dept. 2/10/2021)


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