February 8, 2019

In The Matter of Route 17K Real Estate, LLC, et al. v. Zoning Board of Appeals of the Town of Newburgh, decided January 30, 2019, the Appellate Division, Second Department, affirmed the Supreme Court’s denial of an Article 78 Petition challenging the Zoning Board of Appeals’ determination to grant area variances for a hotel.

The court held in relevant part as follows:

Contrary to the petitioners’ contention, the ZBA properly treated RAM’s application as entirely for area variances rather than, in part, for a use variance. 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” (emphasis added). 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 (see Town of Newburgh Town Code § 185-27[c][1]). 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.

A copy of the decision can be obtained online: http://www.courts.state.ny.us/courts/ad2/Handdowns/2019/Decisions/D58066.pdf

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