April 6, 2015

In the case entitled Colin Realty Co, LLC v Town of North Hempstead, 2014 WL 5285474 (NY 10/16/2014),  New York’s highest court, the Court of Appeals, held that (i) requests for off-street parking variances should be evaluated 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; and (ii) the town Zoning Board of Appeals (“ZBA”) properly considered the application for off-street parking variance as a request for an area variance.

Colin Realty Co, LLC (“Colin Realty”) owns a multi-tenant retail building next to a property owned by Fradler Realty Corporation (“Fradler”). When Fradler’s building was constructed in 1939, the Code of the Town of North Hempstead (“Town Code”) did not require off-street parking for the building or loading/unloading areas.  On February 4, 2011, Fradler and Manhasset Pizza LLC (“Manhasset Pizza”) sought approval from the Town of North Hempstead ZBA to place a 45–seat, full-service, dine-in restaurant in the storefront of Fradler’s property.

Significantly, restaurants were permitted by conditional use permit in the district in which the building was located.  However, the Town Code required restaurants to supply 24 off-street parking spaces (one space per every four seats for patrons, plus additional spaces for employees and takeout service) and one off-street loading/unloading area.  On May 25, 2011, the ZBA granted the conditional use permit and the requested variances.  The ZBA treated the application as a request for area variances and concluded that “the benefit to the applicants of granting the variances from the Town Code’s parking and loading/unloading restrictions outweighed the detriment imposed on the community.

On June 23, 2011, the neighboring property owner, Colin Realty, brought a hybrid Article 78 proceeding and declaratory judgment action against the Town of North Hempstead, the ZBA, certain members of the ZBA, Manhasset Pizza, and Fradler arguing that the ZBA should have treated Manhasset Pizza’s application as a request for use variances rather than area variances.  

On February 14, 2012, the Supreme Court dismissed Colin Realty’s proceeding on the basis that the ZBA had “rationally engaged in the statutorily mandated balancing test by … weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted” (2012 N.Y. Slip Op. 30483).  The Supreme Court also agreed that a use variance was not necessary for the conditional use permit because “the proposed restaurant was not a non-conforming and/or prohibited use within the meaning of the Town Code.”

Colin Realty appealed, and on June 5, 2013, the Appellate Division affirmed.

Section 267(1) of New York State Town Law defines area and use variances as follows:

(a) ‘Use variance’ shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.

(b) ‘Area variance’ shall mean 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. (see also Village Law § 7–712[1]; General City Law § 81–b [1]).

Based on the foregoing, and after a lengthy analysis, the Appellate Division held that because the proposed use was permitted in the zoning district, the ZBA properly considered the application as a request for an area variance.  Accordingly, the Court of Appeals held that the order of the Appellate Division should be affirmed.

Please contact an experienced attorney at (914) 338-8050 if you have any questions about parking variances or other land use/zoning questions.  For more information about our firm please visit www.betenskylaw.com.