Friendly Ice Cream Corp. v. Barrett
| Decision Date | 06 December 1984 |
| Citation | 483 N.Y.S.2d 782,106 A.D.2d 748 |
| Parties | In the Matter of FRIENDLY ICE CREAM CORPORATION, Respondent, v. J. Howard BARRETT et al., Constituting the Zoning Board of Appeals of the Town of Clifton Park, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Peter M. Fitzner, Saratoga Springs, for appellants.
Parisi, DeLorenzo, Gordon, Pasquariello & Weiskopf, P.C., Schenectady (Edward D. Falso, Schenectady) for respondent.
Before MAHONEY, P.J., and KANE, MAIN, WEISS and MIKOLL, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered April 16, 1984 in Saratoga County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Zoning Board of Appeals of the Town of Clifton Park.
Petitioner proposes to build a restaurant in the Town of Clifton Park in Saratoga County on a triangular-shaped parcel of land located within a B-2 highway business zoning district. While signs are permitted within a B-2 district, there can be no more than two per establishment, and freestanding signs larger than six feet square must comply with the ordinance's setback requirements. Petitioner applied to respondents for variances permitting more than two signs and to erect a standing sign 142 feet from the highway instead of 155 feet as required by the zoning ordinance. Respondents granted a variance increasing the allowed number of signs to four but denied petitioner's application with respect to the freestanding sign.
Petitioner commenced a CPLR article 78 proceeding to annul that portion of respondents' determination which denied a variance permitting the erection of a freestanding sign 142 feet from the highway. Special Term granted petitioner the requested relief and this appeal by respondents ensued.
We begin, as we must, by reiterating the well-established rule that local zoning boards have discretion in considering applications for variances and the judicial function is a limited one (Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756). Hence, our sole concern is whether there is substantial evidence to support the determination reached by the zoning board (id.). We hold there is not.
Since freestanding signs are permitted within a B-2 district (Town of Clifton Park Zoning Ordinance, art. XIV, §§ 1409and 7) and the only limitations deal with the number of signs and a setback requirement for signs larger than six feet square, the type of variance sought by petitioner was an area rather than a use variance. An area variance is one which does not involve a use which is prohibited by the zoning ordinance (2 Anderson, New York...
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