Posted by: Patricia Salkin | February 12, 2021

NY Appellate Court Finds Creation of Additional Units Constituted an Intensification of the Property’s Use

This post was authored by Matthew Loescher, Esq.

In 2004, petitioner purchased certain commercial property in the manufacturing district of the Village of East Hampton. The property was improved with a 6,600–square–foot commercial building, constructed in 1988, as well as a parking lot with 23 parking spaces. In 2016, the Village notified the petitioner that it was in violation of the certificate of occupancy, since the building was altered to contain six office units, but was only permitted four according to the certificate of occupancy. Thereafter, the petitioner sought an area variance from the Zoning Board of Appeals of the Village to permit it to retain the additional two office units, without having to create additional parking. The Board determined that the petitioner’s creation of additional units within the subject building constituted an intensification of its use compelling compliance with the amended parking regulations. As such, the Supreme Court denied the CPLR article 78 petition and dismissed the proceeding, and the petitioner appealed.

The court found that contrary to the petitioner’s assertion, the Board’s interpretation of the Village Code, that the addition of two units within the subject building constituted an “intensification,” was “neither irrational, unreasonable, nor inconsistent with the governing statute,” and therefore must be upheld. The record reflected that the Board properly rejected the petitioner’s contention that its intensification only required it to comply with that provision of the amended parking regulations requiring two additional parking spaces for every additional, unauthorized unit within the building, since that contention was not supported by a review of the Village Code. Accordingly, the Board properly determined that the building was required to have 43 parking spaces, and that because it only had 23 parking spaces, the variance sought was substantial.

Parsone, LLC v Zoning Board of Appeals of the Village of East Hampton, 2021 WL 480858 (NYAD 2 Dept. 2/10/2021)

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