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Zoning Board Properly Applied Balancing Test In Denying Area Variance

The Appellate Division found that a request for an area variance to park in the front yard of the petitioner’s property would produce an undesirable change in the neighborhood and therefore the zoning board properly denied the requested variance. In Matter of Russo v. City of Albany Zoning Board, the Appellate Division Third Department held that the zoning board had properly applied the statutory balancing test (Town Law 267-b(3)) in reviewing the area variance application and therefore the decision should not be overturned.

The petitioner initially claimed that he was parking in his front yard pursuant to a previously issued variance or permit. The City could find no record of any such permit or variance and since petitioner began using the space after the zoning ordinance prohibited parking in the front yard it could not be a legal non-conforming use.

As for the requested variance, the court found that “although other houses in the surrounding area had front-yard parking, this constituted the overwhelming minority of the properties. Furthermore, …compared to those few properties, petitioner’s use drastically differed in that his parking area is in the very middle of the lot, as opposed to on the side of the residence, and caused his vehicle to be parked over the City sidewalk.” The court noted that parking over the sidewalk created a public safety hazard. These factors, coupled with the finding that the petitioner had available alternatives and that the condition was self created as “petitioner constructed a driveway on his front lawn and began parking there with full awareness of the applicable zoning regulations prohibiting such use,” the court found the actions of the zoning board were reasonable.

-Steven Silverberg

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