Vacancy Rate Is An Appropriate Criteria In Determining To Issue A Use Variance

In Matter of O’Connell Machinery Co., Inc v. City of Buffalo Zoning Board of Appeals, the court affirmed the granting of a use variance based upon the high vacancy rate of the property. The Appellate Division Fourth Department found that the property zoned light industrial was properly granted a variance to permit student housing, a hotel and other residential and commercial uses.

The court held that the owner had proven hardship in “dollars and cents form” by demonstrating that the “property had been substantially vacant for 30 years” that “only 10% to 15% of the space was occupied at the time of the applications and the prospects for expanding occupancy and generating sufficient revenue to cover necessary maintenance, repairs and improvements were marginal.” The court also found that the variance would not “alter the essential character of the neighborhood”, as similar uses “exist in proximity to the property” and the zoning board properly found the hardship was not self created.

Thanks to Alan J. Bozer, Esq. of the Buffalo Office of Phillips Lytle LLP who brought this case to our attention.