Court of Appeals Holds Off-Street Parking Variances Requests Should Be Viewed As Area Variance Requests Where Property Is Intended For A Permitted Purpose

Manhasset Pizza LLC and Fradler Realty Corporation (“Applicants”) applied for the Town of North Hempstead Board of Zoning and Appeals to approve a 45–seat, full-service restaurant in a storefront in Manhasset. The Board granted the conditional use permit, subject to certain conditions, and requested variances. Deeming the application a request for area variances, the Board found the benefit to the applicants of granting variances outweighed the detriment imposed on the community and approved the variances from the Town Code’s parking and loading/unloading regulations. In response, a the owner of a neighboring building, Colin Realty Co., LLC, brought a hybrid Article 78 / declaratory judgment action challenging ZBA's granting of variances, and alleging that proposed restaurant required a use variance rather than an area variance.

Town Law § 267(1) defines both area and use variances: “Use variance shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations,” while “area variance shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.”

After the Supreme Court, Nassau County dismissed the petition and the Appellate Division affirmed the dismissal, Petitioners appealed to the Court of Appeals. On appeal, the Court of Appeals held requests for off-street parking variances should be evaluated by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district, expressly overruling Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160. Accordingly, the court held that the ZBA properly considered the application for off-street parking variance as a request for an area variance.

The case was Colin Realty Co, LLC v Town of North Hempstead, 24 N.Y.3d 188 (2014).

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