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Variance For One Nonconfirming Use Does Not Require Grant Of A Variance For Another Nonconfirming Use

A court denied a use variance to conduct a motorcycle sales operation at a location which previously obtained a use variance to operate an antique furniture store. In Matter of 194 Main Inc. v. Board of Zoning Appeals for Town of North Hempstead, the Appellate Division affirmed the denial of a use variance, finding that the property owner had a self created hardship due to the fact that he purchased the property for a commercial use when he knew it was zoned for residential use. Further, the court held “the fact that a use variance was granted to the prior owner for the use of an antique furniture store could not have lead to a reasonable expectation by the petitioner that it could operate a motorcycle sales, storage, and display store under the prior use variance.”

The court, in quoting the case of Matter of Miller Family Ltd. Partnership v Trotta (23 AD3d 389, 389-390) reiterated the criteria for obtaining a use variance in New York stating:

“there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created.”

Finally, the Court found that the grant of a use variance for the antique store did not create a precedent requiring the Zoning Board to grant the current variance application as “the evidence at the hearing established that the circumstances of the prior variance granted by the Zoning Board were distinguishable from the petitioner’s application, and, therefore, the Zoning Board was not bound by its earlier determination.”

-Steven Silverberg