Appellate Court Finds Denial Of Use Variance Had Rational Basis

Petitioner owned Public School 22 and an adjacent parcel in Albany.  The two properties were zoned for single and two-family detached dwellings and houses of worship. In October 2013, Petitioner applied for a use variance to raze the school and house on the adjacent lot to build an alcohol and substance abuse rehabilitation facility. Petitioner noted the school’s prior owner had been granted a use variance for a similar purpose, but failed to move forward with the project. Following a public hearing, City of Albany Zoning Board of Appeals (“Respondent”) denied the application. Petitioner brought an Article 78 proceeding asserting Respondent’s action was arbitrary as Petitioner had satisfied the criteria for a use variance and that a use variance had been granted to the prior owner. The lower court dismissed the petition, and Petitioner appealed.

On appeal, the Appellate Division, Third Department found that Respondent addressed each of the relevant factors for a use variance, and its determination that Petitioner failed to establish those factors had a rational basis and was supported by substantial evidence. Respondent noted that once the school was demolished, as called for by Petitioner’s proposal, the site could be used for a conforming use. Furthermore, razing the single-family residence on the adjoining property would result in a nonconforming use replacing a conforming use.

In addition, the Court found that even though Respondent had determined in 2008 that a community rehabilitation residence would not alter the essential character of the neighborhood, Respondent sufficiently distinguished that finding from the current application. Since the prior application, other similar residences had been approved resulting in a saturation of such uses. Moreover, the current application called for removal of a historical school building whereas the earlier application would refurbish the structure. Finally, as Petitioner was aware at the time of acquisition that its project would be a nonconforming use for those properties, Petitioner's hardship was self-created.

The case was Rehabilitation Support Services, Inc. v City of Albany Zoning Board of Appeals, 140 A.D.3d 1424 (3 Dep’t 2016).

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