Agenda - Planning Commission - 12/02/1997

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~ "- Z.B. October 25, 1997 - Page 7 could not be expanded into other areas of the property where the nOIlconforming use did not exist. The trial court had to determine whether Poole expanded or altered the salvage yard after he bought it. see also: Longwell v. Hodge, 297 S.E.2d 820 (1982). McPillan v. Berkeley County Planning Commission, 438 S.E.2d 810 (1993). % Expansion of Use - Board relies on undisclosed newspaper article in denying variance Hampshire Management Company v. Nadel, 660 N.Y.S.2d 64 (New York) 1997 Hampshire Management Company owned a shopping center in the town of Greenburgh, N.Y. It applied for an area variance allowing it to increase the floor space of its shopping center by about 15,500 square feet by building a one-story addition to space leased by an anchor tenant. The management company presented evidence at a public hearing that its tenant needed to expand to remain competitive with newer, larger stores in the area and was unable to expand by any method other than by building an addition to its existing store. The company also presented evidence that any additional traffic created by the expansion would be minimal. The town zoning board of appeals denied the variance, citing traffic concerns and a "self-created benefit" standard. The board relied on its members' personal knowledge and observations of the site, as well as an unspecified newspaper article published the day after the public hearing. The management company appealed to court. The court annulled the board's decision and granted the company a variance. It found the board's decision was arbitrary and capricious. The board appealed. DECISION: Affirmed. The board arbitrarily denied the management company an area variance to expand its shopping center. The company deserved a variance. Despite the board's findings, the company showed that any additional traffic created by the expansion would be minimal. The company also showed its tenant needed to expand to remain competitive with larger stores in the area and could not do so by any other method. The board should not have applied a "self-created benefit" standard; it should have considered whether the company's hardship was self created, which it wasn't. Although the board properly considered its members' personal knowledge of the site, it should not have relied on the undisclosed newspaper article without giving the management company a chance to rebut the information in the article. see also: Matter of Fuhst v. Foley, 382 N.E.2d 756. Matter of Sunset Sanitation Service Corp. v. Board of Zoning Appeals of Town of Sm ith town, 569 N. Y.S.2d 141.