Fourth Department – Zoning: Kotary v. Town of Floyd

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Zoning — Variances — Availability of alternatives

Kotary v. Town of Floyd

TP 25-01360

Transferred from Supreme Court, Oneida County

Background: The petitioner commenced an Article 78 proceeding seeking to annul a zoning board of appeals determination denying his application for three variances in connection with his proposed construction of a vehicle maintenance and storage facility on his property. The petitioner previously received a special use permit to construct storage units and vehicle service garage on his property with approval to place a shipping container on the property. He purchased a second one but did not seek approval. Between the purchase of the first and second, the town passed a shipping container law limiting the use and number of containers per acre. The petitioner sought a building permit to erect a wooden storage building that would incorporate both containers in its structure. The petitioner began construction without receiving a building permit.

Ruling: The Appellate Division confirmed. The court noted that the record demonstrated the ZBA considered the five statutory factors, particularly focusing on safety considerations, the availability of feasible alternatives and whether any alleged difficulty that gave rise to the need for the variances was self-created. The court noted that the petitioner’s need for the variances with respect to the second shipping container was entirely self-created and that feasible alternative existed as the petitioner could have constructed a barn without incorporating the containers, which would have obviated the need for the variances.

Mo Athari, of Athari & Associates, for the petitioner; Kathryn M. Festine, of Festine Nelson, for the respondents.

Submitted