ZBA says applicant for 75 Clarendon Avenue failed to demonstrate hardship; board moves to executive session on appointments

The Zoning Board of Appeals (ZBA) for the City of Kingsley reviewed an application for a use variance for 75 Clarendon Avenue and determined the applicant had not met the legal hardship standard required to allow residential use in the special district. The board then voted on a motion about the application, later entered an executive session under Public Officers Law §105‑f to discuss applicants to the board and adjourned the meeting.

Board chair (presiding officer) led the discussion of old business, saying the board had held a public hearing on the application in December and that “I’ve not returned or received any financial evidence, so I don’t believe that that burden can be met,” referring to the requirement to show a lack of reasonable return by competent financial evidence. The chair and other members agreed that none of the special districts (SDs) at issue permit residential uses and that the applicant had not shown a unique hardship.

The board discussed the formal hardship elements it must find for a use variance: (1) the inability to realize a reasonable return demonstrated by competent financial evidence; (2) uniqueness of the property’s conditions relative to the district; (3) that granting the variance would not alter the essential character of the neighborhood; and (4) that the hardship was not self‑created. The chair observed that the property had been purchased with the unit already in place and that the record did not show proper permitting, which raised a concern about a self‑created hardship. The chair said the board had not been presented with financial evidence and concluded “none of those burdens have been met.”

Members noted that while policy options exist—such as seeking a transect or zoning change through the Common Council—those remedies fall to the council, not the ZBA. The board’s legal adviser reiterated the board must follow New York law and the applicable standards for a use variance and suggested the Common Council would be the appropriate body to pursue a zoning change if the applicant sought that route.

After discussion the board member made a motion related to the variance application and the motion was seconded and approved by voice vote. The transcript indicates the board agreed there was no path forward for the variance as presented. The board then moved to executive session under Public Officers Law §105‑f to discuss appointment matters (applicants to the board). The meeting later reconvened, and the chair accepted a motion to adjourn; the motion carried by voice vote.

Votes at a glance: The ZBA took the following formal actions recorded in the meeting transcript: (1) approval of the minutes from the Dec. 12 meeting (motion made and approved by voice vote); (2) a motion on the 75 Clarendon Avenue variance application that was seconded and approved by voice vote after the board concluded the applicant had not met the hardship standard; (3) a motion to enter executive session under Public Officers Law §105‑f to discuss applicants to the board, approved by voice vote; and (4) a motion to adjourn, approved by voice vote. The transcript records voice votes and the chair’s “Aye” responses but does not record a roll‑call tally of member names or numeric counts.

The board’s discussion made clear the ZBA’s legal role: it must apply the statutory hardship test for variances under New York law and cannot substitute its own zoning policy preference for the formal statutory standard. Board members suggested that a zoning or transect change would need to be addressed by the Common Council if the applicant wished to pursue that path.

The meeting paused briefly while the board held an attorney‑client or executive session; the chair asked a member of the public to step out of the room before the session began. The transcript does not record the contents of the executive session. The ZBA adjourned at about 7:18 p.m.