Monday, March 11, 2013

What's the "Use"?

Use variance..the most difficult variance to get, but lately it seems to be getting a lot easier in the Town of New Hartford even though the town is currently in the process of updating their Comprehensive Plan.

In an August 10, 2010 decision by courts in Connecticut, ROBERT E. MICHLER ET AL. v. PLANNING AND ZONING BOARD OF APPEALS OF THE TOWN OF GREENWICH ET AL., the judge opined:
"As both this court and our Supreme Court have cautioned, ‘the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised.

...[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted.

...The power to authorize a variance is only granted for relief in specific and exceptional instances."
Last month, two more Use Variance applications were presented to the Zoning Board of Appeals; one for a student health center on Ney Ave presented by Utica College; and one for a 32 unit apartment building at 3900 Oneida Street presnted by the owner of the property, Candace Hobin.

No final determination was made on either application at the February 25, 2013 meeting; they are both scheduled to be discussed further at the March 18th Zoning Board meeting and more than likely a determination will be made at that time.

As part of the appeal process, the Town of New Hartford provides every applicant with an information packet that contains an application and outlines the standards that must be met in order for the ZBA to approve a use variance. [The highlighting in the document linked to above has been added by us to emphasis some of the more pertinent information.]

There are four (4) standards that must be proven by the applicant:
  • The owner cannot realize a reasonable return on the property as zoned.
  • The hardship must be unique to the owner's property and not applicable to a substantial portion of the zoning district.
  • Granting the variance will not alter the essential character of the neighborhood.
  • The hardship is not self-created.
According to the NYS Dept. of State:
If any one or more of the above factors is not proven, State law requires that the ZBA must deny the variance. [emphasis added]
A document found online from the Pace University School of Law - Land Use Law Center states:
New York law provides statutory standards for the issuance of use and area variances. The statutes impose a heavy burden upon an applicant of demonstrating that a use variance should be granted, as that applicant is requesting the zoning board of appeals to alter the local legislature's determination that a specific use is not appropriate in the zoning district.
We videotaped both presentations at the February 25, 2013 Zoning Board of Appeals meeting. We will be providing the videotape and looking at each request over the next couple of days to discuss whether or not they meet the "burden of proof" required by NYS Law.

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