State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 521373 

________________________________

In the Matter of 

REHABILITATION SUPPORT 

SERVICES, INC.,

Appellant,

v MEMORANDUM AND ORDER

CITY OF ALBANY BOARD OF ZONING 

APPEALS,

Respondent.

________________________________

Calendar Date: April 20, 2016

Before: Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

__________

Lemery Greisler LLC, Albany (James E. Braman of counsel),

for appellant.

John J. Reilly, Corporation Counsel, Albany (Valerie A.

Lubanko of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from a judgment of the Supreme Court (Zwack, J.),

entered September 16, 2014 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondent denying

petitioner's request for, among other things, a use variance.

Petitioner owns former Public School 22 and an adjacent

parcel on Second Street in the City of Albany. The properties

are located in an area zoned R-2A for single and two-family

detached dwellings and houses of worship. In October 2013,

petitioner applied to respondent for, among other things, a use
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variance allowing it to raze both the school building and house

on the adjacent lot in order to construct a 24-bed community

residence for alcohol and substance abuse rehabilitation. 

Petitioner noted that the prior owner of the school had been

granted a use variance in January 2008 to refurbish the school

building for a similar purpose, but had then failed to move

forward with the project. Following a public hearing, respondent

denied petitioner's application in February 2014. Petitioner

commenced this proceeding asserting, among other things, that

respondent's action was arbitrary because petitioner had

satisfied the criteria for a use variance and also that a use

variance had been granted to the prior owner. Supreme Court

dismissed the petition. Petitioner appeals.

"The law is well settled that '[l]ocal zoning boards have

broad discretion in considering applications for variances, and

judicial review is limited to determining whether the action

taken by the board was illegal, arbitrary or an abuse of

discretion'" (Matter of Russo v City of Albany Zoning Bd., 78

AD3d 1277, 1279 [2010], quoting Matter of Ifrah v Utschig, 98

NY2d 304, 308 [2002]; accord Matter of Schaller v Town of New

Paltz Zoning Bd. of Appeals, 108 AD3d 821, 824 [2013]). "Thus, a

determination of a zoning board should be sustained upon judicial

review if it has a rational basis and is supported by substantial

evidence" (Matter of Ifrah v Utschig, 98 NY2d at 308 [citations

omitted]; see Matter of Androme Leather Corp. v City of

Gloversville, 1 AD3d 654, 656 [2003], lv denied 1 NY3d 507

[2004]). "To qualify for a use variance, [petitioner] had the

burden to show that (1) [it] cannot realize a reasonable return

if the property is used for a permitted purpose, (2) the hardship

results from unique characteristics of the property, (3) the

proposed use will not alter the essential character of the

neighborhood, and (4) the hardship has not been self-created"

(Matter of Sullivan v City of Albany Bd. of Zoning Appeals, 20

AD3d 665, 666 [2005] [citations omitted], lv denied 6 NY3d 701

[2005]; see Code of City of Albany § 375-26 [B] [2] [a]; see also

Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127

AD3d 1360, 1361 [2015]; Matter of Center Sq. Assn., Inc. v City

of Albany Bd. of Zoning Appeals, 19 AD3d 968, 970 [2005]). 
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Respondent addressed each of the relevant factors regarding

a use variance, and its determination that petitioner failed to

establish those factors has a rational basis and is supported by

substantial evidence. With respect to a reasonable return,

petitioner paid a total of slightly over $40,000 for both

properties and received almost that amount from Albany County

toward those purchases, revealing that it had invested less than

$500 in acquiring the properties. Petitioner presented limited

and incomplete proof regarding whether a reasonable return could

be realized on this small investment by any of the allowable uses

within the zone. Respondent acknowledged that a potential

hardship resulted from the old, unused school building, but noted

that petitioner's plan included demolishing such building and

that, once demolished, the site could be used for a conforming

use. Moreover, the project included the adjoining property where

a single family residence would be razed, which would result in a

nonconforming use replacing a conforming use.

Although respondent had determined in 2008 that a community

rehabilitation residence would not alter the essential character

of the neighborhood, respondent sufficiently distinguished the

current application made about six years later. In the interim,

several other similar residences had been approved in the

community resulting in a saturation of such uses. Furthermore,

the current application resulted in removal of the historical

school building whereas the earlier application included

refurbishing the structure. At the time that petitioner acquired

the property, it was aware that its project would be a

nonconforming use. Respondent rationally decided that

petitioner's hardship was self-created. Upon review of the

record and according appropriate deference to respondent's

determination, we are unpersuaded that Supreme Court erred in

dismissing the petition.

McCarthy, Devine, Clark and Mulvey, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court