New York Law Review

Tag: Off-Street Parking

  • Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014): Off-Street Parking Variances Treated as Area Variances

    Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014)

    A zoning board of appeals should evaluate requests for off-street parking variances 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.

    Summary

    This case clarifies whether off-street parking variances should be treated as area or use variances. Manhasset Pizza sought to open a restaurant in a storefront in North Hempstead, NY, requiring variances from the town’s off-street parking requirements. The Zoning Board of Appeals (ZBA) granted the variances, treating them as area variances. Colin Realty, a neighboring property owner, challenged this decision, arguing that the variances should have been evaluated as use variances. The New York Court of Appeals held that off-street parking variances are generally treated as area variances when the intended use is permitted in the zoning district, overruling any conflicting suggestion in prior case law.

    Facts

    Fradler Realty Corporation owned a building in a Business A district in North Hempstead. Manhasset Pizza sought to lease a vacant storefront within the building to operate a 45-seat restaurant, a permitted use in the district contingent upon a conditional use permit. The Town Code required 24 off-street parking spaces for the proposed restaurant, a requirement stemming from a 1939 Town Code change. The existing building, constructed before the parking requirements, did not provide the requisite parking. Manhasset Pizza applied for the conditional use permit and requested variances from the parking requirements.

    Procedural History

    The Town of North Hempstead ZBA granted the conditional use permit and the requested variances, treating them as area variances. Colin Realty, a neighboring property owner, filed a hybrid CPLR article 78 proceeding/declaratory judgment action challenging the ZBA’s determination. The Supreme Court denied Colin Realty’s petition, upholding the ZBA’s decision. The Appellate Division affirmed, holding that the ZBA properly treated the parking variances as area variances. Colin Realty appealed to the New York Court of Appeals.

    Issue(s)

    Whether a variance from off-street parking requirements for a permitted use should be treated as a use variance or an area variance.

    Holding

    No, because off-street parking requirements regulate how property area may be developed and are akin to minimum lot size or setback restrictions; therefore, area variance rules apply so long as the underlying use is permitted in the zoning district.

    Court’s Reasoning

    The Court of Appeals analyzed the distinction between use and area variances under Town Law § 267 (1), which defines a use variance as permission to use land for a purpose “which is otherwise not allowed or is prohibited” and an area variance as permission to use land “in a manner which is not allowed by the dimensional or physical requirements.” The court revisited its prior decisions in Matter of Overhill Bldg. Co. v Delany and Matter of Off Shore Rest. Corp. v Linden, acknowledging some ambiguity in the latter regarding parking variances. The Court noted that off-street parking requirements, while differing based on use, regulate how the property’s area may be developed, similar to minimum lot size or set-back restrictions. The Court stated that 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.” The Court explicitly overruled any conflicting suggestion in Off Shore. In this case, because the restaurant was a permitted use, the ZBA properly considered the variance application as a request for an area variance. The court emphasized the importance of considering the benefit to the applicant versus the detriment to the community, as required for area variances under Town Law § 267-b (3) (b). The court noted that in Overhill, “when courts are faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, the rules relating to area variances obtain.” The Court determined the ZBA balanced the statutory factors and based its findings on facts in the record, making its determination rational.

  • MTR Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972): Nonconforming Use and Zoning Regulations After Alterations

    MTR Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972)

    A pre-existing, nonconforming use’s exemption from zoning regulations, such as off-street parking requirements, is lost when the use changes to a different permitted use involving increased intensity of use, triggering the need for a new permit demonstrating full compliance with current zoning ordinances.

    Summary

    MTR Off Shore Rest. Corp. sought a building permit to convert a delicatessen into a cocktail lounge with increased seating capacity. The city denied the permit because the proposed changes did not include additional off-street parking as required by current zoning laws. MTR argued its pre-existing, nonconforming use status exempted it from the new parking rules. The New York Court of Appeals reversed the lower courts’ decisions, holding that the change in use and increased seating triggered the need for a new permit showing full compliance with the updated zoning regulations, including the off-street parking requirements. The court reasoned that the city’s zoning ordinance required conformity with all provisions whenever the use of a building changes.

    Facts

    In 1969, MTR Off Shore Rest. Corp. purchased a property in Long Beach, NY, housing a delicatessen with a seating capacity of approximately 62. The building was constructed in 1922, before off-street parking was required. MTR planned to convert the delicatessen into a cocktail lounge, increasing the seating capacity to 85 and installing a bar for 15 patrons. The proposed alterations would not involve structural changes or additions to the building. MTR intended to transfer a liquor license to the location upon the expiration of a lease at another nearby location.

    Procedural History

    The City of Long Beach’s Zoning Board of Appeals denied MTR’s application for a building permit and a variance. The Supreme Court annulled the Board’s determination and ordered the issuance of a permit. The Appellate Division affirmed. The City appealed to the New York Court of Appeals.

    Issue(s)

    Whether a delicatessen, exempt from off-street parking requirements as a pre-existing, nonconforming use, may be altered to a cocktail lounge with a greater seating capacity without providing off-street parking.

    Holding

    No, because the change in use and increased seating capacity trigger the zoning provision requiring additional off-street parking, thus necessitating a new permit demonstrating compliance with the current zoning regulations. Denial of the variance was not arbitrary because the property could continue to be used as a delicatessen.

    Court’s Reasoning

    The court examined the Long Beach zoning ordinance, noting that while pre-existing, nonconforming uses are generally exempt from certain restrictions, the ordinance also stipulated that changes in use require compliance with all current provisions. The court cited section 9-109, which states, “It shall be unlawful for the owner to use or permit the use of any building or premises or part thereof hereafter altered or erected, or to use or permit the use of any building or premises or part thereof hereafter changed to a different use, until a Use Permit shall have been issued to the owner by the Commissioner of Buildings.” The court reasoned that the change from a delicatessen to a cocktail lounge constituted a change in use. Additionally, section 9-113.1 required additional off-street parking whenever changes create a need for an increase of more than 15% in parking spaces. Because the increased seating capacity exceeded this threshold, MTR was required to provide additional off-street parking. The court distinguished between ‘use’ and ‘area’ variances and determined that because the parking restriction in this case related to uses, MTR needed to show that the property could not yield a reasonable return without increasing the burden on street parking, which it failed to do. The dissent argued that no structural changes were planned and as such the off-street parking requirement should not apply.

  • Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971): Area Variances and Self-Imposed Hardship in Zoning

    Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971)

    When considering variances from zoning regulations concerning off-street parking, courts apply the rules for area variances, but self-imposed hardships can still be a factor in denying a variance if a legitimate public purpose is served by the zoning restriction.

    Summary

    Overhill Building Company sought a variance to convert parking spaces into office space, which would increase a pre-existing nonconforming use concerning off-street parking. The Board of Appeals denied the variance, citing an attempt to expand a nonconforming use and self-created hardship. The Court of Appeals reversed the lower court’s decision to grant the variance. While the court treated the variance as an area variance, it held that the Board of Appeals did not abuse its discretion in denying the variance because the zoning authorities demonstrated a legitimate public purpose (alleviating traffic congestion) was served by the parking restrictions, and the property owner had not been deprived of all reasonable use of the property.

    Facts

    Overhill Building Company owned a building in a Business A zone of Scarsdale, partially used for apartments and partially for office space. A 1959 zoning amendment required one off-street parking space for every 150 square feet of floor area in buildings constructed before November 1, 1959. This requirement translated to 306 parking spaces for Overhill’s building, but the company maintained only 117, creating a pre-existing nonconforming use. In 1970, Overhill sought to convert 1,850 square feet of parking space into office space, which would eliminate 12 parking spaces and require even more spaces under the ordinance.

    Procedural History

    The Village Building Inspector denied Overhill’s building permit application. The Board of Appeals denied Overhill’s application for a variance. Overhill commenced an Article 78 proceeding, and Special Term annulled the Board’s determination, ordering the permit issued. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a variance request involving off-street parking requirements in a business zone should be treated as an area variance or a use variance.
    2. Whether the Board of Appeals abused its discretion by denying the variance, considering the property owner’s economic injury and the purpose of the zoning ordinance.

    Holding

    1. Yes, because when courts are faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, the rules relating to area variances obtain.
    2. No, because the zoning authorities demonstrated a legitimate public purpose was to be served by the restrictions placed on respondent’s property.

    Court’s Reasoning

    The court determined that the variance should be treated as an area variance because the intended use (additional office space) was permitted in the business zone. Area variances are evaluated under the standard set in Matter of Fulling v. Palumbo, requiring a showing of significant economic injury to the property owner. If such injury is shown, the zoning authorities must demonstrate that the zoning standard is justified by public health, safety, and welfare. However, the court clarified that this standard does not negate the principle that self-imposed hardships can justify denying a variance.

    The court distinguished Fulling, where all surrounding properties were also nonconforming and the ordinance aimed at neighborhood beautification. Here, the ordinance served a legitimate public purpose: alleviating traffic congestion and promoting public safety. Even though surrounding properties were nonconforming, this purpose justified the parking restrictions. The court found that the Board of Appeals could reasonably determine that increased business space would exacerbate traffic problems. Because Overhill only demonstrated financial loss, not a deprivation of all reasonable use of the property, the Board’s decision was not arbitrary.

    The court addressed Overhill’s argument that the zoning ordinance was facially unconstitutional, finding that an Article 78 proceeding was not the proper vehicle to challenge the constitutionality of a legislative enactment. The proper remedy would be a declaratory judgment action.