Posted on July 12, 2012
Michael Moore and Rob Panasci recently won an appeal for the City of Ithaca (Tompkins County) in a zoning dispute over the proposed expansion of a parking lot at a “non-conforming” apartment building in the City in Avramis v Sarachan, 97 A.D.3d 874 (3d Dept. July 5, 2012).
Avramis’ four unit, twelve bedroom apartment building houses college students in an area of the City zoned for one and two-family dwellings only. The building had four parking spaces in 1977 when the City zoning code was changed to prohibit “multiple- dwellings” in this part of the City; this code change made the building a “non-conforming use.” Relying on the code’s provisions for “off street parking,” Avramis claimed a right to build ten new parking spaces on an undeveloped area of the property. The City Board of Zoning Appeals (BZA) disagreed. The BZA determined that four parking spaces (the number that existed when the property became “non-conforming”) could be built with site plan review only, but that the ten-space parking lot (more than doubling the size of the parking area) would be an “enlargement” or “extension” of the non-conforming use and would be unlawful without the grant of a use variance. Avramis brought suit to challenge the BZA’s determination. The Supreme Court, Tompkins County, agreed with Avramis and the City then retained Young/Sommer to appeal.
The appellate court reversed the lower court and adopted the City’s legal position in full: (1) “non-conforming uses” are not favored in the law, may be “reasonably restricted” and may not be “enlarged” as a matter of right; (2) it deferred to the BZA’s interpretation of the zoning code that the parking provisions apply only to permitted “conforming” uses; and (3) it agreed that the “non conformity” of the Avramis property applied to the entire parcel, both the apartment building and its parking area, making the BZA’s determination a reasonable and proper application of the City zoning code.
Avramis may build a four-space parking lot on the property (if site plan approval is granted) or obtain a use variance from the BZA if the larger parking lot is desired. In order to obtain a use variance Avramis will have to provide, among other things, proof of financial hardship if the property is limited to four parking spaces.