Development

1956 Use Variance Eliminates Need for Subsequent Use Variance upon Expansion

Matter of Scarsdale Shopping Center Associates, LLC v. Board of Appeals

NYLJ 7/15/09, p. 40, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to annul a determination of the board of appeals affirming denial of a building permit, the board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division modified, holding that landowner was not required to obtain a use variance for expansion of its shopping center, but that landowner might be required to obtain an area variance.

The original building in landowner's shopping center was built in 1956 after Supreme Court decided that landowner had a vested right to develop in accordance with pre-existing law, and that the New Rochelle City Council had acted improperly in denying approvals for the center and then rezoning the property for residential use. After the Supreme Court decision, the City Council granted landowner a use variance to permit construction of additional retail space, and in subsequent years, landowner was permitted to expand the center to its current 28 stores. In 2006, landowner applied to build an 14,243-square foot addition to the shopping center, and the building inspector denied the application on the ground that the 1956 variance did not permit the additional construction. The Board of Appeals affirmed that determination, concluding that the 1956 use variance permitted construction of one ten-store building, and that an additional use variance would be required for the proposed addition. Landowner then brought this article 78 proceeding. Supreme Court granted the petition, and remitted to the Board of Appeals with instructions that the building is subject to site plan review without the necessity of an additional use variance. The Board of Appeals appealed.

In modifying, the Appellate Division first agreed with Supreme Court that landowner was not required to obtain a use variance. The court started by noting that in light of the 1956 use variance, landowner's use was a permitted use, not a non-conforming use. As a result, no further use variance would be necessary to permit expansion of the use. The court observed, however, that landowner's use of the property remains subject to the terms of the original use variance. Unfortunately, because of an intervening fire, the resolution granting the use variance is no longer available. The court, however, looked to evidence that the shopping center had been permitted to expand in the past as evidence that the use variance did not limit landowner to the original 10-story building. As a result, expansion would not require a further use variance. The court modified Supreme Court's determination, however, concluding that any expansion might still be subject to applicable dimensional constraints, and might, therefore, require an area variance. The court concluded that determining whether an area variance is required was a matter of interpretation of the ordinance, a matter typically vested in the building inspector and the board of appeals. As a result, the court remitted for consideration of that issue.

1956 Use Variance Eliminates Need for Subsequent Use Variance upon Expansion

Matter of Scarsdale Shopping Center Associates, LLC v. Board of Appeals

NYLJ 7/15/09, p. 40, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding to annul a determination of the board of appeals affirming denial of a building permit, the board of appeals appealed from Supreme Court's grant of the petition. The Appellate Division modified, holding that landowner was not required to obtain a use variance for expansion of its shopping center, but that landowner might be required to obtain an area variance.

The original building in landowner's shopping center was built in 1956 after Supreme Court decided that landowner had a vested right to develop in accordance with pre-existing law, and that the New Rochelle City Council had acted improperly in denying approvals for the center and then rezoning the property for residential use. After the Supreme Court decision, the City Council granted landowner a use variance to permit construction of additional retail space, and in subsequent years, landowner was permitted to expand the center to its current 28 stores. In 2006, landowner applied to build an 14,243-square foot addition to the shopping center, and the building inspector denied the application on the ground that the 1956 variance did not permit the additional construction. The Board of Appeals affirmed that determination, concluding that the 1956 use variance permitted construction of one ten-store building, and that an additional use variance would be required for the proposed addition. Landowner then brought this article 78 proceeding. Supreme Court granted the petition, and remitted to the Board of Appeals with instructions that the building is subject to site plan review without the necessity of an additional use variance. The Board of Appeals appealed.

In modifying, the Appellate Division first agreed with Supreme Court that landowner was not required to obtain a use variance. The court started by noting that in light of the 1956 use variance, landowner's use was a permitted use, not a non-conforming use. As a result, no further use variance would be necessary to permit expansion of the use. The court observed, however, that landowner's use of the property remains subject to the terms of the original use variance. Unfortunately, because of an intervening fire, the resolution granting the use variance is no longer available. The court, however, looked to evidence that the shopping center had been permitted to expand in the past as evidence that the use variance did not limit landowner to the original 10-story building. As a result, expansion would not require a further use variance. The court modified Supreme Court's determination, however, concluding that any expansion might still be subject to applicable dimensional constraints, and might, therefore, require an area variance. The court concluded that determining whether an area variance is required was a matter of interpretation of the ordinance, a matter typically vested in the building inspector and the board of appeals. As a result, the court remitted for consideration of that issue.