Development

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by a neighbor to challenge grant of an area variance and conditional use permit, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner's conversion of a storefront into a restaurant required only an area variance, not a use variance.

Landowner sought to convert a vacant storefront into a full-service restaurant. The storefront is a non-conforming building because it does not meet the parking or loading zone requirements of the current zoning code. Restaurant uses are permitted in the district, subject to issuance of a conditional use permit. Also, under the current code, the proposed restaurant would require 24 off-street parking spaces. Landowner sought the required conditional use permit, together with an area variance excusing the parking and loading zone nonconformities. The Zoning Board of Appeals (ZBA) granted the variance and the use permit, and a neighboring commercial owner then brought this article 78 proceeding, contending that landowner needed a use variance, which requires a showing of hardship. Supreme Court dismissed the proceeding.

In affirming, the Appellate Division started by agreeing that landowner needed only an area variance, not a use variance. The court then concluded that the ZBA had properly weighed all of the statutory factors relevant to applications for area variances. In particular, the court held that the ZBA had considered the testimony of neighbor's expert that the restaurant would crowd existing on-street parking, but noted that even the expert conceded that there would be parking available in neighboring municipal lots. As a result, the ZBA's determination was not arbitrary or capricious.

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Store Conversion Required Only Area Variance

Matter of Colin Realty Co. LLC v. Town of North Hempstead

NYLJ 6/7/13, p. 32, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding brought by a neighbor to challenge grant of an area variance and conditional use permit, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that landowner's conversion of a storefront into a restaurant required only an area variance, not a use variance.

Landowner sought to convert a vacant storefront into a full-service restaurant. The storefront is a non-conforming building because it does not meet the parking or loading zone requirements of the current zoning code. Restaurant uses are permitted in the district, subject to issuance of a conditional use permit. Also, under the current code, the proposed restaurant would require 24 off-street parking spaces. Landowner sought the required conditional use permit, together with an area variance excusing the parking and loading zone nonconformities. The Zoning Board of Appeals (ZBA) granted the variance and the use permit, and a neighboring commercial owner then brought this article 78 proceeding, contending that landowner needed a use variance, which requires a showing of hardship. Supreme Court dismissed the proceeding.

In affirming, the Appellate Division started by agreeing that landowner needed only an area variance, not a use variance. The court then concluded that the ZBA had properly weighed all of the statutory factors relevant to applications for area variances. In particular, the court held that the ZBA had considered the testimony of neighbor's expert that the restaurant would crowd existing on-street parking, but noted that even the expert conceded that there would be parking available in neighboring municipal lots. As a result, the ZBA's determination was not arbitrary or capricious.

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