Daily Development for Friday, September 5, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

ZONING AND LAND USE; PROCEDURES: In making a decision on a variance application, a zoning board cannot take into consideration prior misrepresentations made by the applicant as to its intended use or general community opposition based upon activities unrelated to the impact of the proposed variance.

Caspian Realty v. Zoning Bd. of Appeals, 842 N.Y.S.2d 887 (Sup. 2007). 

 Prior to constructing a building, the petitioner obtained approval from the Planning Board.  After completing construction and receiving a certificate of occupancy, the petitioner was found to be in violation of zoning ordinances due to undisclosed and unapproved retail use - a furniture outlet - on the lower level.  Petitioner argued that it in fact had disclosed that intended retail on the lower level, but the Board found, and the court affirmed, that in fact there had been a misrepresentation that the lower level would be used for storage.

The petitioner then sought area variances and parking variances similar to those that the Board had granted to retail furniture outlets in the past.  It indicated it was willing to accept a restriction that it would limit its use to retail furniture sales.

The Zoning Board of Appeal, however, expressly took into consideration the fact that the petitioner earlier misrepresented its intended use of the lower level to the Planning Board.  It stated that to grant the variance under such circumstances was against the public interest in that it would encourage lying by future applicants.  The Board also took into account neighbors’ complaints about various annoying activities on the property, such as trucks arriving too early and improperly unloading, parking of commercial vehicles over night, etc.  These activities did not relate to the lower level retail outlet, but to the lawful storage activities on the property.

The court acknowledged that a determination of a zoning board should be sustained if it does not have a rational basis and is not arbitrary and capricious and that the board must engage in a balancing test weighing the benefits to the applicant against the detriment to the community.  Tut it also found that the basis for these conclusions must lie in the statutory standards under New York law.   Further, the court could not deny variance benefits in one case that it had granted in another case without showing a rationale basis.

The court found that, although it did not condone misrepresentations, the Zoning Board of Appeals improperly considered the misrepresentations in its denial.  Furthermore, the court found that the complaints were not associated with the zoning violations and the Zoning Board of Appeals did not properly consider an expert’s report.  The court annulled the decision and remitted the matter for reconsideration.

Comment: Good luck to the applicant on its next application.  The granting of a variance is discretionary, and undoubtedly there are perfectly valid grounds that the zoning board could use to deny the variance.  This is a case where a rattlesnake has been stirred.  It will be hard to lull it back to sleep, even though the applicant may have felt quite righteous in that, in its view, it had fully disclosed everything originally and had not lied.  In this situation, there is no good answer for the applicant. 

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