This week the New York Court of Appeals clarified that a parking variance is an area variance, except when it is not. In Matter of Colin Realty Co. v. Town of North Hempstead, the Court concluded that, in most instances, a parking variance is an area variance. However, at the very end of the decision, the Court inserted a line that appears to open the door for further interpretation and possible confusion.
The case involves a commercial use in an older building that does not have adequate off-street parking under the more modern requirements of the amended zoning ordinance. The local zoning board granted an area variance. A neighboring property owner challenged the decision arguing, in part, that it should be a use variance. The Petitioner relied on language in Matter of Offshore Rest. Corp. v. Linden, 30 NY2d 160 (1972).
In Offshore the Court stated:
“To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem….”
Noting that the statute governing variances was amended in 1994 to more clearly define both use and area variances and the criteria applicable to each, the Court seem poised to make an unequivocal statement that parking variances are area variances when it held:
“Finally, and whether dictum or not, Off Shore’s declarations about use variances for off-street parking requirements have effectively been superseded by statute. Off Shore requested a building permit to make alterations in connection with a proposed change from one use permitted in the zoning district (delicatessen and restaurant) to another (cocktail lounge and restaurant). But as of July 1, 1994, General City Law § 81-b (1) has defined a ‘use variance’ as an authorization for the use of land for a purpose ‘otherwise not allowed or . . . prohibited’ in the zoning district; and an ‘area variance’ as an authorization to use land ‘in a manner which is not allowed by the dimensional or physical requirements’ of the zoning regulations (see also Town Law § 267 ; Village Law § 7-712 ). Off-street parking requirements, while differing depending on use, regulate how the property’s area may be developed, akin to minimum lot size or set-back restrictions.”
Then the Court added language this writer views as creating the potential for confusion by noting:
“Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally, Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).”
Thus, it appears that if you merely require a parking variance for two additional parking spaces, where off-street parking is a permitted accessory use, the balancing test for an area variance applies. However, does the Court mean to say that if you also require a use variance, the zoning board should apply the dollars and cents proof standard to that portion of the use that also seeks two fewer parking spaces than are permitted? This could result in some interesting decisions.