In a Decision and Order dated June 17, 2008, the Second Department confirmed that an area variance can not be limited to the term of the applicant's ownership of the premises. (Fowlkes v. Board of Zoning Appeals of Town of North Hemptstead, 2008 N.Y.Slip Op. 05696).
The applicant owns property improved by a house. Although the certificate of occupancy authorizes use of the premises as a single-family home, the premises has been used as a two-family house since 1967.
The applicant sought a building permit authorizing continued use of the existing structure as a two-family house. The building permit was denied because the structure did not meet the minimum requirements for a two-family house under the Town Code. The applicant's subsequent application for an area variance from these minimum requirements was denied by the ZBA.
Although the Second Department criticized the ZBA's finding that the variance would adversely impact the character of the neighborhood as "conclusory", the Second Department ultimately concluded that the ZBA had appropriately considered the other statutory factors laid out in Town Law section 267-b in determining that the detriment the variance would cause the neighborhood outweighed the benefit that it would provide to the applicant.
The Second Department also rejected the applicant's contention that the statutory factors should have been balanced in her favor because she was only seeking a variance for the term of her ownership of the premises. In rejecting this argument, the Second Department confirmed that "the variances could not be limited to the term of her ownership of the premises because any condition imposed when granting a variance must be directly related to the property involved and to the underlying purpose of the zoning code, without consideration of the particular person owning or occupying it."
