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New York Court of Appeals Finds Zoning Board Abused Its Discretion in Granting Use Variance

The New York Court of Appeals in In the Matter of Edward J. Vomero v City of New York, et al has unanimously held that the City of New York Board of Standards and Appeals abused its discretion in granting a use variance to use residentially-zoned property for commercial use. The Court reversed the decision of the Appellate Division, Second Department in which two justices had dissented, and reinstated the original judgment of the Supreme Court, Richmond County.

Under the New York City zoning code, a use variance may be granted only if: 1) use of the property for permitted uses would impose practical difficulties or unnecessary hardship because of the unique physical conditions of the property, 2) the owner cannot realize a reasonable financial return from use of the property for permitted uses because of such unique physical conditions, 3) use of the property for non-permitted uses would not alter the essential character of the neighborhood, and 4) the owner did not create the practical difficulties or unnecessary hardship.

The property at issue is a corner lot located in a residentially-zoned district on Staten Island abutting a six-lane wide street. The owner purchased the property for $275,500 and then demolished the existing house located on the land, all for the purpose of constructing a photography studio accessory to its catering hall located directly across the street in a commercially-zoned district. An appraisal was obtained seven months following purchase which showed that the vacant land could be sold for $375,000 for residential use. The land is similar in size to other residential properties located in the neighborhood.

The Court of Appeals cited its 2004 holding in Matter of Pecoraro v Board of Appeals of Town of Hempstead (2 NY3d 608 – 2004) that “(a) local zoning board has broad discretion when reviewing an application for a zoning variance, but its determination may be set aside if the record reveals that ‘the board acted illegally or arbitrarily, or abused its discretion,'” and found that “the zoning board’s decision to grant a use variance for the construction of a commercial structure in a residentially-zoned area was an abuse of discretion. The physical conditions of the parcel relied on by the board did not establish that the property’s characteristics were ‘unique’ … Proof of uniqueness must be ‘peculiar to and inherent in the particular zoning lot’ … rather than ‘common to the whole neighborhood’…The fact that this residentially-zoned corner property is situated on a major thoroughfare in a predominantly commercial area does not suffice to support a finding of uniqueness since other nearby residential parcels share similar conditions.”

Bernis E. Shapiro

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