Agenda - Planning Commission - 01/08/2015

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Zoning Bulletin December 10, 2014 1 Volume 8 1 Issue 23 retail building next to the proposed restaurant property, commenced a legal action against the Town, the Board, certain members of the Board, and the Applicants. Colin sought to annul the Board's decision granting the permit and variances to the Applicants. Colin argued the proposed restaurant required a use variance rather than an area variance from the Town's parking and loading/unloading restrictions. Colin alleged that existing public parking was "overwhelmed" and inadequate to accom- modate the applicants' proposed "high volume use." The state Supreme Court rejected Colin's argument that use vari- ances, as opposed to area variances, were required here. The court also concluded that Board had applied the proper balancing test. Colin appealed. The Appellate Division also held that the Board had properly determined that the variances from parking sought by the Ap- plicants were to be treated as applications for area variances. The Ap- pellate Division further held that the Board's balancing test was rational and not arbitrary and capricious. Colin again appealed. DECISION: Judgment of appellate division affirmed. The Court of Appeals of New York held that 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. The court concluded that the Board properly considered the application for off-street parking variance as a request for an area variance. In so holding, the court noted that the distinction between area vari- ances and use variances is important because the standard for a use variance is "clearly harder to satisfy than the test for an area variance." Here, to obtain a use variance, an applicant had to demonstrate to the zoning board of appeals that "applicable zoning regulations and restric- tions have caused unnecessary hardship" (Town Law § 267-b [2][b]). To obtain an area variance, an applicant had to show that "the benefit to the applicant if the variance is granted" outweighs "the detriment to the health, safety and welfare of the neighborhood or community by such grant" (Town Law § 267-b [3] [b]). Colin had argued that when determining which type of variance to apply, the determinative factor is "whether the local code imposes the off-street parking requirement based on area/square footage [calling for an area variance] or based on the intensity of the use [calling for a use variance]." Colin contended that, here, the Town Law imposed off- street parking requirements based on the intensity of the use, and therefore the Applicants were required to seek a use variance, not an area variance as had been granted. The court pointed to New York statutory law defining use and area variances: General City Law § 81-b (1) defines a "use variance" as an © 2014 Thomson Reuters 5