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REQUEST WAS PROPERLY DEEMED AN APPLICATION FOR AN AREA VARIANCE, NOT A USE VARIANCE, AND WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined: (1) RAM’s request for permission to build a hotel was a request for an area variance, not a use variance; (2) the statutory factors for granting a use variance were considered by the zoning board; (3) the board complied with the State Environmental Quality Review Act (SEQRA); and (4) the area variance was properly granted:

Pursuant to Town Law § 267(1)(b), an area variance is defined as the “authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” … . One aspect of RAM’s request for a variance related to a provision of the Town’s Zoning Law which required that a hotel have its “principal frontage” on a state or county highway … . We agree with the ZBA and the Supreme Court that the “principal frontage” requirement is a “physical requirement,” rather than a use restriction, and that RAM’s application is thus properly regarded as one for an area variance. We note that the other aspect of RAM’s application for an area variance related to the height of the roof of the proposed hotel, and there is no dispute that that aspect of RAM’s application was properly categorized as a request for an area variance. …

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community … . Town Law § 267-b(3)(b) provides that in making its determination, the zoning board shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. In applying the balancing test set forth in Town Law § 267-b(3)(b), a zoning board need not justify its determination with supporting evidence with respect to each of the five statutory factors as long as its ultimate determination balancing the relevant considerations is rational … . Matter of Route 17K Real Estate, LLC v Zoning Bd. of Appeals of the Town of Newburgh, 2019 NY Slip Op 00605, Second Dept 1-30-19

 

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