Court Finds ZBA’s Denial Of Applications To Renew Use And Area Variances Not Illegal, Arbitrary, Or Abuse of Discretion

In 2006, Petitioner applied for a use variance to convert two offices on the first floor of a two-story brick building into three residential apartments.  Petitioner also applied for an area variance from the off-street parking requirements. In 2007, the Board of Appeals of the Town of Hempstead (“ZBA”) granted the applications until 2012, subject to certain conditions. In 2009, Petitioner applied for another use variance to convert the remaining office on the first floor into two residential apartments, together with an area variance from the off-street parking requirements. The ZBA denied both applications. In 2012, Petitioner sought a rehearing on its 2009 application, and renewal of its 2007 variances, all of which were denied.  Petitioner brought an Article 78 proceeding to review the ZBA’s denial of its applications. The Supreme Court annulled the portion of determination that denied the application to renew use and area variances, but upheld portion that denied application for new use and area variances.  The parties then appealed and cross-appealed from the judgment.

On appeal, the Appellate Division, Second Department found that the ZBA's findings of fact did provide a rational basis for denying Petitioner’s application for a renewal of the 2007 variance. The ZBA found that Petitioner failed to demonstrate “unnecessary hardship” in accordance with Town Law § 267–b(2)(b), and the fact that the ZBA temporarily approved the same application in 2007 did not relieve Petitioner of its evidentiary burdens for purposes of renewing or seeking an additional use variance. As Petitioner failed to show any financial evidence that it could not obtain a reasonable rate of return absent the requested use variances, the ZBA’s decision to deny Petitioner’s applications was not illegal, arbitrary, or an abuse of discretion.

The Court similarly found that the ZBA’s decision denying Petitioner's applications to for a new area variance and to renew the area variance issued in 2007 was not illegal, arbitrary, or an abuse of discretion. There, the ZBA properly considered the benefit to Petitioner if the variances were granted as weighed against the detriment to the neighborhood.  The ZBA found that the area variances were substantial and would adversely impact the nearby residential neighborhood by creating a “disruptive additional demand for on-street parking in the residential area to the south.”  This finding was rational and supported by the record. Accordingly, the Court held that the Supreme Court should have denied the petition in its entirety.

The case was Monte Carlo 1, LLC v. Weiss, 142 A.D.3d 1173 (2d Dep’t 2016).

Powered by 123ContactForm | Report abuse