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Sunday, March 17, 2013

Use Variances on Ney Ave and Oneida Street

Earlier this week, Utica College sent a FAX to the town withdrawing, until further notice, their Use Variance request of February 25, 2013 to allow a student health center on Ney Ave.

However, a Use Variance for 3900 Oneida Street is still on the agenda for the March 18, 2013 ZBA meeting.

According to the agenda:
Ms. Candice Hobin is requesting a Use Variance for apartments on 3900 Oneida Street (former Massoud’s building – next to the Washington Mills Post Office). Apartments are not an allowed use in a Retail Business 2 zone, thus, necessitating a Use Variance request. Tax Map #339.016148.1; Lot Size: 2.56 Acres; Zoning: Retail Business 2. Tabled until the March 18, 2013 Zoning Board meeting.
As we recently blogged, there are four (4) standards that must be proven by the applicant; a request must be denied if one or more of the standards are not met by the applicant.

The owner cannot realize a reasonable return on the property as zoned.

According to the Dept of State:
An applicant must prove that he or she cannot realize a reasonable return from each of the uses permitted in the zoning district. The mere fact that the property owner may suffer a reduction in the value of property because of the zoning regulations, or the fact that another permitted use may allow the sale of the property for a better price, or permit a larger profit, does not justify the granting of a variance on the grounds of unnecessary hardship.
There are several other permitted uses in the Retail Business 2 Zone to include offices; retail store; grocery store; church; restaurant; and bank to name a few. Ms. Hobin merely says that she is unable to sell the property after two (2) years on the market and now she needs to sell it post haste due to a personal problem.

The Town of New Hartford Use Variance application states:
Such inability to yield a reasonable return must be shown by specific fact (dollars and cents) from an expert or authority in economic deprivation, not the unsupported opinion of the owner or those appearing for the owner.
The applicant has failed so far to meet this standard; no expert witness testimony was presented.

The hardship must be unique to the owner's property and not applicable to a substantial portion of the zoning district.

Again, according to the Dept of State:
The statutes provide that an applicant must demonstrate to the board "that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood."
The only uniqueness in the property in question is a deed restriction that was placed on the property many years ago. The deed restriction was on the property when the current owner purchased the property; however, at that point, the owner was looking for office space so the restrictions didn't matter to her. It only became a problem when personal problems forced her to sell.

The Town of New Hartford Use Variance application states:
The personal situation of the owner shall not be considered unique.
According to Town Attorney Cully when a deed restriction was mentioned as a concern for another use variance request a few months ago, he stated that a deed restriction is not the concern of the town or the ZBA; we would have to assume that would also apply in this case. A deed restriction does not make a "unique hardship". All parcels in the RB2 zone have the same zoning restrictions as the property in question; therefore, the standard of uniqueness does not apply.

Granting the variance will not alter the essential character of the neighborhood.

From the Dept of State:
Because one of the basic purposes of zoning is to adopt reasonable regulations in accordance with a comprehensive plan, it follows that changes which would disrupt or alter the character of a neighborhood, or a district, would be at odds with the very purpose of the zoning regulation itself.
3900 Oneida Street is bordered on one side by McDonald's, a car wash and the Washington Mills Post Office. On the other side is Creekside Cafe; they recently received approval for a miniature golf course on the other side of the creek. Across the street is Tony's and a retail strip mall.  This property is close to a high traffic intersection with many accidents.

The applicant has stated that they want to build high end apartments...the number of units which is in question. Their application says 42 units, however, they state to the ZBA and the Observer Dispatch there will be 32 units. Regardless of how many units, this property is clearly in a high traffic commercial zone; not a residential zone.

The hardship is not self-created.

The Dept of State writes:
It is well settled that a use variance cannot be granted where the "unnecessary hardship" complained of has been created by the applicant, or where she/he acquired the property knowing of the existence of the condition she/he now complains of.
By examining the page from the property deed containing the restriction, it is clear that Ms. Hobin knew, or should have known, the zoning and deed restrictions when she purchased the property. However, she bought the property for offices so the deed restriction and zoning didn't matter at that point; the property fit her needs at the time of purchase. Now her needs have changed and she seeks a use variance so she can sell the property as apartments to resolve her personal issues. Clearly this is a personal hardship that is self-created.

Finally, from the Dept. of State:
A final word on use variances

The rules laid down in the statutes and in the applicable cases are requirements. They must be used by zoning boards of appeals in reviewing applications for use variances. Furthermore, the board must find that each of the elements of the test has been met by the applicant.

The board must also consider the effect of the grant of the use variance on the zoning law itself. The Court of Appeals pointed out in the Clark decision, supra,

“. . . no administrative body may destroy the general scheme of a zoning law by [granting variances indiscriminately] ...”
On all counts, the variance should be denied; several other use variances that have recently been approved by the Zoning Board of Appeals also should have been denied, but they were approved.  Either the ZBA is bending the rules for some or they need to refresh their understanding of the zoning laws.

Let's see what happens at Monday's ZBA meeting in Butler Hall starting at 6 p.m.

Meanwhile, here is the video of Ms. Hobin's presentation at the February 25, 2013 Zoning Board of Appeals meeting:

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