Court of Appeals Overturns Long Standing Precedent Regarding Off Street Parking Variances

Land Use

In Matter of Colin Realty Co., LLC, v. Town of North Hempstead, the Court of Appeals overruled case-law dating back over forty years, regarding the standards that apply to variances from off-street parking requirements.  2014 NY Slip Op. 07008 (10/16/2014).  The Court held that a zoning board must apply the standards for an area variance for off-street parking variances as long as the property is intended to be used for a purpose permitted in the underlying zoning district.  Use variance standards would only apply if the variance sought is in connection with a use that is prohibited or otherwise not allowed in the district.

This decision marked the first time the Court of Appeals has addressed the topic of off-street parking variances in over 40 years.  See Matter of Overhill Bldg. Co. v. Delaney, 28 N.Y.2d 449 (1971); Matter of Off  Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972).

In Overhill, the Court of Appeals reversed the lower and appellate courts and upheld the zoning board’s denial for a variance from off-street parking requirements.  The petitioners in Overhill proposed to convert a portion of an existing ground floor garage space office use, which would have left an insufficient amount of parking spaces for the property.  Interestingly, the Court in Overhill believed the lower courts correctly applied the standards for an area variance, however in order to set aside the zoning board’s decision, the petitioners needed to demonstrate that the hardship created from the denial would leave them with no reasonable use for its property, a mere financial loss would not suffice.  The court extended the “hardship” requirement imposed in Overhill to the Off Shore case where the Court of Appeals similarly held that petitioners were not entitled to a variance from off-street parking requirements because they made no showing that the property cannot yield a reasonable return without increasing the burden on street parking in violation of the zoning ordinance.  In both Overhill and Off Shore, the use proposed was allowed, yet the court nonetheless imposed a “hardship requirement” which, in today’s practice, only applies to use variances.

To put in perspective the level of change that has occurred in this area of law since, Overhill and Off Shore, those cases were decided 20 years before the definitions of and criteria for evaluating use and area variances were codified.  (See L 1991, ch 692, eff. July 1992; see also L 1992, ch 248; L 1993, ch 208, eff. July 1, 1994).  Use variances are now defined as “an authorization…for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations,” and area variances are defined as “an authorization…for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations,” (see Town Law §267(1); Village Law §7-712(1)).  Before the standards for evaluating use and area variances were codified, the distinction between the two types of variances was based solely on decisional law.

The factual background of Colin involved an application before the Town of North Hempstead to place a 45 seat, full-service, dine-in restaurant in a storefront in Manhasset, New York.  Under the Town Code, restaurants were permitted in the Business A District (where the building was located), subject to the issuance of a conditional use permit.  The Town Code required the applicants to supply 24 off-street parking spaces as proposed (one space per every four seats plus additional spaces for employees and takeout service), requiring the applicant to seek a variance from the off-street parking requirements.  The Zoning Board granted the conditional use permit and the requested off-street parking variance, applying the standards for an area variance.  The Board noted that “the subject storefront is located in a preexisting non-conforming building…originally developed with no parking; [therefore a] parking variance is necessary to operate any business at the premises,” (emphasis added).  Colin Realty, the owner of a multi-tenant retail building next to the applicant’s property, commenced a hybrid CPLR article 78 proceeding/declaratory judgment action against the Town seeking to annul the Board’s determination.

The Supreme Court dismissed the action on the merits, concluding that a use variance was not necessary for the variance sought because the proposed restaurant was not a prohibited use under the Town Code.  Indeed, since restaurants were conditionally permitted in the zoning district, they were “deemed presumptively consistent with the basic character of the surrounding community.”  The petitioners in this case argued that the determinative factor in whether to apply use or area variance standards to a variance for off-street parking regulations, was whether the local code imposed off-street parking requirements based on an area/square footage (calling for an area variance) or based on the intensity of the use (calling for a use variance).

The Court of Appeals plainly announced its intention to overrule its previous precedent, stating in the first paragraph, “[w]e hold that a zoning board of appeals should evaluate requests for off-street parking variances by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district. To the extent Off Shore suggests otherwise, it should no longer be followed and is overruled.”

For zoning and land use practitioners, the aim of this case is to make clear which standards a zoning board must apply when seeking a variance for off-street parking.  However, it also raises some important questions.  For one, the decision leaves open the issue of how to analyze an off-street parking variance for an applicant seeking to enlarge a legal non-conforming use which was allowed when built, but through amendments to the zoning regulations, has become prohibited.  In this scenario the underlying use remains the same, and was permitted when built, but by enlarging a non-conforming use that has since been prohibited, would use variance standards apply to such a request?  Another open issue concerns uses that require special use permits.  Would uses that require special use permits be deemed “permitted” and thus subject to area variance standards?  The use in Colin required a conditional use permit.  It remains to be seen whether uses that require special use permits will be treated in the same manner.

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Posted by Nick Cappadora

Opposing Municipal Approvals– Proximity Matters

Land Use

Two recent decisions from the Appellate Division, Second Department have sent a clear message to individuals and organizations who seek to annul local municipal approvals: Proximity matters.

In Radow v. Board of Appeals of Town of Hempstead, the petitioners, who lived .69 miles away from the subject beach club, sought to annul a determination of the Board of Appeals issuing certain variances to the beach club owner Atlantic Beach Land Company LLC, arguing that the proposed construction would lead to overcrowding and congestion. 989 N.Y.S. 2d 914 (2d Dept. 2014). In Riverhead Neighborhood Preservation Coalition, Inc. v. Town of Riverhead Town Board, the petitioners, who resided at distances ranging from approximately .25 – .38 miles from the subject project, challenged the proposed construction of a regional shopping mall located in the Town of Riverhead based on traffic and environmental concerns stemming from the development. 2013 WL 801040 (2d Dept. 2013).

In both cases, the Second Department affirmed dismissal of the proceedings holding that the petitioners in each case lacked standing to challenge the approvals.  In order to establish standing, a petitioner must show that “he or she would suffer direct injury different from that suffered by the public at large”.  See Radow.  “Injury-in-fact” may be presumed by demonstrating close proximity to the subject property.  In the absence of such a showing, the petitioner must demonstrate the existence of an actual and specific injury which is distinguishable from the injury suffered by the community at large.

The petitioners in both cases failed to establish an “injury-in-fact” and the court found they lacked standing to challenge the municipal approvals.  In Radow, the petitioners were not entitled to a presumption of injury because they lived more than a half mile away from the subject property (which was not visible from their residence) and the court found their overcrowding and congestion concerns to be purely speculative and not specific or distinguishable from the concerns of the community at large.  In Riverhead Neighborhood Preservation Coalition, the individual petitioners resided slightly closer to the proposed development (.25 – .38 miles away), but the Second Department still held that they did not live close enough to be afforded a presumption of “injury-in-fact” since the proposed mall would not be visible from their homes.  Furthermore, the petitioners in both cases failed to prove that the traffic and environmental impacts from the proposed developments would cause them a specific injury distinguishable from those suffered by the community at large.

The question becomes, how can a petitioner satisfy the presumption of “injury-in-fact”, based on proximity alone?  The Second Department has held that living across the street from a proposed site is sufficient to grant the presumption, as is a 700 foot distance where the two lots border one another. Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 741 90 (2d Dept. 2007); Gaona v. Town of Huntington Zoning Board of Appeals, 106 A.D.2d 638, 638-39 (2d Dept. 1984).  The Third Department however has held that 530 feet is too remote to grant a presumption of “injury-in-fact”.  Oates v. Village of Watkins Glen, 290 A.D.2d 758, 760 (3d Dept. 2002).

Unfortunately, there is no bright-line rule or magical distance a petitioner must be located from a proposed development to have standing to challenge municipal approvals.  However, we do know that in Radow and Riverhead Neighborhood Prevention Coalition the Second Department was particularly concerned with the subject projects not being visible from the petitioners’ homes, as well as the absence of any injuries specific to the petitioners (e.g. safety, noise, traffic, pollution, or decreases in property value). Furthermore, even if a petitioner is able to establish an “injury-in-fact” and is found to have standing, this merely serves as “the admission ticket to judicial review” and does not guarantee success on the merits of petitioner’s claim.    Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead; Allen Avionics v. Universal Broadcasting Corp., 69 N.Y.2d 406, 416.  Thus, after a petitioner has cleared the standing hurdle, they must also be able to show that the approval granted by the agency was arbitrary, capricious, or is affected by some other legal infirmity in order to have it set aside.

The author acknowledges Michael J. Barone, Jr., J.D., for his contribution to this article.

Posted by Nick Cappadora