You are here: / / Less Stringent “Area Variance” Criteria, Rather than the More...
, ,

Less Stringent “Area Variance” Criteria, Rather than the More Stringent “Use Variance” Criteria, Properly Applied to a Restaurant’s Request for a Variance Re: Off-Street Parking Requirements

The Court of Appeals, in a full-fledged opinion by Judge Read, determined when “area variance,” as opposed to “use variance,” criteria should be applied to off-street parking requirements.  The zoning board had allowed a variance from the off-street parking requirements for a restaurant under the less stringent “area variance” standard.  The petitioner, a neighboring property owner, sought a declaration that the more stringent “use variance” criteria should be applied.  The Court of Appeals disagreed with the petitioner and affirmed:

…[A]s 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 [1]; Village Law § 7-712 [1]). 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. 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).

In this case, [the restaurant] applied for an off-street parking variance in connection with a change in the storefront's use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly considered the application as a request for an area variance. Matter of Colin Realty Co LLC v Town of N Hempstead, 2014 NY Slip Op 07008, CtApp 10-16-14

 

You might also like
IN LAWSUITS AGAINST THE GOLF-COURSE OWNERS, A GOLFER COMPETING IN A TOURNAMENT ASSUMED THE RISK OF BEING STRUCK BY A GOLF BALL WHILE RIDIING IN A GOLF CART ON THE COURSE, BUT A GOLFER DRIVING A GOLF CART TO HER CAR IN THE COURSE PARKING LOT DID NOT ASSUME THE RISK OF A COLLISION WITH A CAR EXITING THE PARKING LOT (CT APP).
THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP).
Deception Used By Interrogators Rendered Confession Involuntary As a Matter of Law
EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION’S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE’S CASE TO PROVE INTENT.
TEACHER WITH TENURE WHO RESIGNED AND WAS THEN REHIRED WAS NOT REHIRED WITH TENURE; THE TEACHER FAILED TO COMPLY WITH THE REGULATION REQUIRING A WRITTEN WITHDRAWAL OF THE RESIGNATION SUBJECT TO THE APPROVAL OF THE CHANCELLOR.
FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT RATES REJECTED (CT APP).
THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS, THREE JUDGES DISSENTED (CT APP).
Re-Sentencing Under Drug Law Reform Act—Court Does Not Have Authority to Make Sentences Concurrent if Original Sentences Consecutive

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Evidence Did Not “Utterly Refute” Plaintiff’s Allegation He... Videotaped Interview Indicated Defendant Did Not Understand His Right to Counsel—The...