This post was authored by Michele Abatangelo, Jacob D. Fuchsberg Touro Law Center
Shortly after receiving a certificate of occupancy for her newly constructed home and studio, the petitioner, Allison Hoots, filed an application with the Town of Rochester Code Enforcement Officer (CEO) requesting to use the studio as a “private commercial music studio,” a class II home occupation. The CEO denied the petitioner’s application on the basis that although “the proposed use met the definition of a class II home occupation,” the size of the studio exceeded that permitted by the zoning law. Thereafter, the CEO determined that an area variance was necessary. The petitioner filed an application for an area variance with the Zoning Board of Appeals (ZBA) arguing that 500 square feet did not provide enough room to operate a music studio.
Several neighbors then appealed the CEO’s decision that the studio was a class II home occupation. After several public hearings and review of the evidence, the ZBA determined that the studio was not a class II home occupation but rather a class III home occupation. Moreover, the ZBA denied the request for an area variance due to the “substantial nature of the application, the potential effect on the character and environment of the neighborhood and [the fact that] the hardship was self-created” by the petitioner. The petitioner then commenced and article 78 proceeding challenging the ZBA’s ruling. The trial court upheld the decision of the ZBA.
On appeal, the appellate Court held that the ZBA’s determination that the studio is a class III home occupation was proper. First, the ZBA considered all the evidence, having reviewed numerous documents, considered various party statements, and held several meetings on the issue. The court also noted that although some of the evidence may weigh in petitioners favor, there is also evidence in favor of the neighboring homeowners. Second, when taking the “size, use and frequency of visitation and traffic” into consideration, the court found that the ZBA’s determination was not “irrational or unreasonable” under these circumstances.
With respect to the area variance, the court found that the ZBA “considered and expressly weighed the statutory criteria,” and did not give in to generalized community pressure because the homeowners had already been affected by petitioner’s studio. In addition, at a public hearing, petitioner agreed with the ZBA’s conclusion that the variance was substantial in nature and was supported by the evidence that the studio exceeded the 500 square area limitation by 56.8%.
Furthermore, the evidence supported the conclusion that the variance was self-created because the studio was built before petitioner applied for a variance and the use listed on the initial building permit was different than what petitioner represented to both the CEO and the ZBA. Lastly, the court found that the ZBA carefully considered whether the variance would be a determination to the community.
Matter of Hoots v. Town of Rochester Zoning Bd. of Appeals, 206 AD3d 1210 (3d Dep’t 2022).