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Use Extending Into Adjoining Zone Only Required Area Variance

The Appellate  Division affirmed the granting of area variances and further affirmed that under the circumstances, a use variance was not required to extend a use into an adjoining zone on lots located in two zoning districts. In Matter of Lu v. City of Saratoga Springs, the Court found that the lots in question were located in two zoning districts, one of which did not permit the proposed use. However, the Court found the Zoning Board of Appeals (ZBA) properly determined that a use variance was not required, because the local zoning code permitted extension of the use for up to 100 feet into an adjoining lot held in single ownership.

The applicant owned six contiguous parcels that were acquired prior to current zoning.  The local zoning code permitted the proposed use as a pet boarding facility on a portion of the site and, as noted, allowed the extension of a use up to 100 feet into an adjoining zone, if the lots are in common ownership. The neighbors argued that because the entrance driveway and some parking for the facility was beyond the 100 foot distance permitted, the applicant would require a use variance in order to establish the use. The ZBA found that only an area variance is required and that the area variance should be granted. The Court agreed.

“While a small portion of the facility’s parking area and the driveway providing ingress and egress to Route 9 will lie within the Tourist Related Business District, the ZBA could rationally find that such accessory uses within a Tourist Related Business zone were not prohibited under the zoning ordinance (see generally Matter of Lavender v Zoning Bd. of Appeals of the Town of Bolton, 141 AD3d 970, 972 [2016], appeal dismissed 28 NY3d 1051 [2016], lv denied 29 NY3d 907 [2017]; Matter of Meier v Village of Champlain Zoning Bd. of Appeals, 129 AD3d 1364, 1365 [2015]). In any event, the ZBA noted that ‘any land use in the adjacent [Rural Residential] zone, including a residence, would also require access over the differing zone,’ and it is settled that zoning boards of appeal “‘are invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law'” (Matter of Kodogiannis v Zoning Bd. of Appeals of Town of Malta, 42 AD3d 739, 739-740 [2007], quoting Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 90 [2001]; accord Matter of Friends of the Shawangunks, Inc. v Zoning Bd. of Appeals of Town of Gardiner, 56 AD3d 883, 885 [2008]). Under these circumstances, the ZBA’s determination that only area variances were required for the proposed project is both rational and supported by the record….”

What is not clear from the decision is whether the the zoning code permits accessory uses to be placed on a lot where the zoning does not permit the principle use. If it does, then the decision would appear correct. If the zoning does not permit such accessory uses, then  it is not clear how the Court determined the ZBA could vary the use without granting a use variance.

The Court then went on to review the area variance, found that the ZBA properly analyzed the criteria for an area variance and affirmed its decision.

-Steven Silverberg

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