High Court voids variance

Court of Appeals ruled BSA abused discretion in granting variance. GAC Catering Inc. purchased a single-family home at the intersection of Otis Avenue and Hylan Boulevard in Staten Island across the street from its catering business. GAC demolished the house and applied to the BSA for a use variance to build a two-story commercial photography studio to be used in conjunction with GAC’s catering hall. GAC claimed that commercial uses predominated the area, and that it was unable to sell or lease the property as a residence due to heavy traffic on Hylan Boulevard. GAC submitted an economic feasibility study demonstrating that a development in conformity with the lot’s R3-2 zoning would not yield a reasonable rate of return.

BSA granted the variance, and a neighbor filed an Article 78 petition challenging BSA’s determination. A lower court ruled that GAC’s hardship was self-created based on its prior knowledge of the lot’s zoning and annulled the variance. It found nothing in the record to support BSA’s determination that GAC’s lot was unique in comparison to similarly sized, residentially developed adjacent lots. The court added that while the area’s mix of commercial and residential uses may indicate the unreasonableness of the current zoning, it did not prove the uniqueness of GAC’s lot. The City appealed.

In a three-two decision the Second Department reversed the lower court, ruling that BSA’s determination had a rational basis. Noting that BSA determined that some similarly situated properties in the area had unique physical conditions that would make conforming uses impractical, the appellate division found that there was no substantial difference between GAC’s lot and those properties. 5 CityLand 160 (Nov. 15, 2008).

The neighbor appealed, and the Court of Appeals rejected the Second Department’s ruling in a unanimous decision. The Court ruled that BSA’s determination was an abuse of discretion and that the conditions relied upon by BSA did not establish the property’s uniqueness. Proof of uniqueness must be peculiar to the particular lot, rather than common to the neighborhood as a whole. The Court noted the fact that GAC’s residentially- zoned corner lot is situated on a heavily trafficked street in a predominantly commercial area did not establish uniqueness because nearby residential properties share similar conditions.

In the Matter of Edward J.Vomero v. City of New York, 2009 N.Y. Slip Op. 08476 (N.Y. Nov. 19, 2009) (Attorneys: Samuel L. Scollar, for Vomero; Michael A. Cardozo, Edward F.X. Hart, Tahirih M. Sadrieh, for NYC).

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