Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin December 25, 2010 I Volume 4 I No. 24 Variance — Resident seeks area variance to allow his front -yard parking Board denies variance, finding it would have detrimental impacts on the neighborhood Citation: Russo v. City of Albany Zoning Bd., 2010 WL 4342202 (N.Y. App. Div. 3d Dep't 2010) NEW YORK (11/04/10) —This case addressed: the balancing test that a zoning board must apply in considering a variance application; and the judicial deference that must be given to a board's decision on a variance application. The Background/Facts: Kenneth Russo ( "Russo ") owned residen- tial property in the city. Since approximately 1978, he had parked his vehicle on his front lawn. In September 2007, he received from the city a cease and desist order notifying him that his front -yard park- ing violated the city's zoning ordinance. As of 1968, the city's zoning ordinance restricted front -yard parking. After receiving the cease and desist order, Russo applied to the city's Zoning Board (the "Board ") for an area variance. The Board denied his application. Russo then brought an action in court challenging that denial. He asked the court to find that he was entitled to the variance, which would allow him to park his vehicle on his front lawn. The Supreme Court determined that the Board had "acted ratio- nally in denying [Russo] an area variance." The Court's Decision: Judgment of Supreme Court affirmed. The Supreme Court, Appellate Division, Third Department, held that the Board's denial of Russo's requested area variance was "not irrational, arbitrary or an abuse of discretion." In reaching this conclusion, the court explained that "[1]ocal zon- ing boards have broad discretion in considering applications for vari- ances." The court could only overturn the Board's denial of Russo's requested area variance if it found the denial was: "illegal, arbitrary or an abuse of discretion." The Board's decision would not be dis- turbed if the court found it had a "rational basis" "supported by sub- stantial evidence in the record." The Board was required to apply a balancing test of the benefit to Russo against the detriment to the health safety and welfare of the neighborhood or community if the variance was granted (along with five other statutory factors). The court explained that as long as the © 2010 Thomson Reuters 5