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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 150
In the Matter of Colin Realty
Co., LLC,
            Appellant,
        v.
Town of North Hempstead, et al.,
            Respondents.




            Robert M. Calica, for appellant.
            Simone M. Freeman, for respondents.
            Bruce W. Migatz, for respondents.




READ, J.:
            This appeal calls upon us to revisit our decisions in
Matter of Overhill Bldg. Co. v Delaney (28 NY2d 449 [1971])
(Overhill) and Matter of Off Shore Rest. Corp. v Linden (30 NY2d
160 [1972] [Scileppi, J., dissenting]) (Off Shore), which both
dealt with variances from the off-street parking requirements of
zoning ordinances.   We now hold that a zoning board of appeals

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should evaluate requests for off-street parking variances by
applying the standards for an area variance so long as the
property is intended to be used for a purpose permitted in the
zoning district.   To the extent Off Shore suggests otherwise, it
should no longer be followed and is overruled.
                                 I.
           On February 4, 2011, Manhasset Pizza LLC (Manhasset
Pizza) and Fradler Realty Corporation (Fradler) (collectively,
the applicants) sought approval from the Town of North Hempstead
Board of Zoning and Appeals (the ZBA or the Board) to place a
45-seat, full-service, dine-in restaurant in a storefront
situated on Plandome Road in Manhasset, New York.   Vacant since
2007, this storefront had most recently housed a retail gift
shop; it is one of five storefronts in a one-story brick building
constructed by Fradler in 1939 on property purchased the previous
year.   Restaurants are permitted in the Business A district in
which the building is located, subject to the issuance of a
conditional use permit.
           In 1939, the Code of the Town of North Hempstead (the
Town Code) did not obligate Fradler to provide off-street parking
or loading/unloading areas for the building.   By 2011, however,
the Town Code imposed off-street parking requirements and
standards throughout the Town.    Specifically, the Town Code
called for the restaurant, as proposed, to supply 24 off-street
parking spaces (one space per every four seats for patrons, plus


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additional spaces as specified in the Code to account for
employees and takeout service) and one off-street
loading/unloading area.   Two metered municipal parking lots are
located near the property, and there is on-street parking along
Plandome Road.
           The ZBA held a hearing on the application on March 23,
2011.   By decision dated and adopted on May 25, 2011, the Board
granted the conditional use permit, subject to certain
conditions, and the requested variances.   Treating the
application as a request for area variances, the Board concluded
that the benefit to the applicants of granting variances from the
Town Code's parking and loading/unloading restrictions outweighed
the detriment imposed on the community (see Town Law § 267-b [3]
[b]).   The Board noted that "[t]he subject storefront is located
in a preexisting non-conforming building . . . originally
developed with no parking[; therefore, a] parking variance is
necessary to operate any business at the premises."
Additionally, the parking analysis submitted by the applicants'
traffic engineer indicated that "ample, if not excess, parking"
was available in the vicinity.    The ZBA observed further that a
restaurant was "in harmony with the surrounding properties" and
"consistent with the character of the community," which
predominantly consisted of retail, office and food uses.
           On June 23, 2011, Colin Realty, LLC (Colin), the owner
of a multi-tenant retail building next to the Fradler property,


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commenced this hybrid CPLR article 78 proceeding/declaratory
judgment action against the Town of North Hempstead (the Town),
the ZBA, certain members of the ZBA, Manhasset Pizza, and
Fradler.   Colin sought to annul the ZBA's determination and
obtain a judgment declaring, in effect, that the proposed
restaurant required a use rather than an area variance from the
Town's parking and loading/unloading restrictions.   The
petition/complaint alleged that existing public parking was
"overwhelmed" and inadequate to accommodate the applicants'
proposed "high volume use."
           On February 14, 2012, Supreme Court denied the petition
and dismissed the proceeding/action on the merits, concluding
that the ZBA had "rationally engaged in the statutorily mandated
balancing test by . . . weighing the benefit to the applicant
against the detriment to the health, safety and welfare of the
neighborhood or community if the variance is granted" (internal
quotation marks omitted) (2012 NY Misc LEXIS 898, *9 [Sup Ct,
Nassau County 2012]).   Citing Overhill and appellate cases
following Overhill's reasoning, the judge rejected Colin's
argument that use variances were necessary to excuse the
applicants from complying with the Town Code's provisions for
off-street parking and loading/unloading.   And the court agreed
with the applicants that a use variance was not necessary for the
conditional use permit because "the proposed restaurant was not a
non-conforming and/or prohibited use within the meaning of the


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                                 - 5 -                        No. 150

Town Code" (id. at *15).     Indeed, the judge added, since
restaurants were conditionally permitted in the zoning district,
they were "deemed presumptively consistent with the basic
character of the surrounding community" (id. at *16).
          Colin appealed, and on June 5, 2013, the Appellate
Division affirmed.    Relying on Overhill and several of its own
prior decisions, the court held that the "ZBA properly determined
that the variances pursuant to which Manhasset Pizza sought
relief from the parking and loading-zone requirements were to be
treated as applications for area variances under the scheme of
the Town Code" (107 AD3d 708, 709 [2d Dept 2013]).    Further,
"[i]nasmuch as the ZBA balanced and weighed the appropriate
statutory factors, and based its findings on objective facts
appearing in the record, its determination to grant the requested
area variances was rational and not arbitrary and capricious"
(id. at 710).     The Appellate Division considered Colin's
remaining contentions to be without merit.    We granted Colin
permission to appeal on September 3, 2013 (21 NY3d 864 [2013]),
and now affirm.
                                 II.
          Town Law § 267 (1) defines and distinguishes between
area and use variances as follows:
          "(a) 'Use variance' shall mean the authorization by the
          zoning board of appeals for the use of land for a
          purpose which is otherwise not allowed or is prohibited
          by the applicable zoning regulations.
          (b) 'Area variance' shall mean the authorization by the

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          zoning board of appeals for the use of land in a manner
          which is not allowed by the dimensional or physical
          requirements of the applicable zoning regulations"
          (emphases added; see also Village Law § 7-712 [1];
          General City Law § 81-b [1]).
          To obtain a use variance, the applicant must
demonstrate to the zoning board of appeals that "applicable
zoning regulations and restrictions have caused unnecessary
hardship" (Town Law § 267-b [2] [b]).   This imposes a heavy
burden on the applicant, who must establish that
          "for each and every permitted use under the zoning
          regulations for the particular district where the
          property is located, (1) the applicant cannot realize a
          reasonable return, provided that lack of return is
          substantial as demonstrated by competent financial
          evidence; (2) that the alleged hardship relating to the
          property in question is unique, and does not apply to a
          substantial portion of the district or neighborhood;
          (3) that the requested use variance, if granted, will
          not alter the essential character of the neighborhood;
          and (4) that the alleged hardship has not been self-
          created" (id.; see also Village Law § 7-712-b [2];
          General City Law § 81-b [3]).
          In making a determination whether to grant an area
variance, the zoning board of appeals must "take into
consideration the benefit to the applicant if the variance is
granted, as weighed against the detriment to the health, safety
and welfare of the neighborhood or community by such grant" (id.
§ 267-b [3] [b]).   To make this determination, the board weighs
          "(1) whether an undesirable change will be produced in
          the character of the neighborhood or a detriment to
          nearby properties will be created by the granting of
          the area variance; (2) whether the benefit sought by
          the applicant can be achieved by some method, feasible
          for the applicant to pursue, other than an area
          variance; (3) whether the requested area variance is
          substantial; (4) whether the proposed variance will

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           have an adverse effect or impact on the physical or
           environmental conditions in the neighborhood or
           district; and (5) whether the alleged difficulty was
           self-created, which consideration shall be relevant to
           the decision of the board of appeals, but shall not
           necessarily preclude the granting of the area variance"
           (id.; see also Village Law § 7-712-b [3]; General City
           Law § 81-b [4] ).
           We have not discussed the classification of variances
from off-street parking requirements since our decisions in
Overhill and Off Shore, handed down in 1971 and 1972
respectively, or 20 years before the definitions of and criteria
for evaluating use and area variances were regularized by
statute, as described above (see L 1991, ch 692, eff. July 1,
1992; see also L 1992, ch 248; L 1993, ch 208, eff. July 1,
1994]).   The distinction between the two types of variance,
initially created by decisional law, has always been important,
as the pre-1992 standard for a use variance was, as remains the
case under statute, clearly harder to satisfy than the test for
an area variance, although the latter was plagued by confusing
and often contradictory decisions.     As we explained in Matter of
Sasso v Osgood (86 NY2d 374, 381 [internal citations omitted]),
                "[w]ithout any legislative guidance defining the
           requirements for an area variance, the courts began to
           develop a list of considerations to be applied under
           Town Law former § 267 . . . [T]hese criteria came to be
           know as the 'practical difficulties' test. The
           criteria notwithstanding, however, precise and concise
           definition of 'practical difficulties' never emerged
           from the case law. In particular, it remained unclear
           whether a showing of 'significant economic injury' was
           part of the 'practical difficulties' test."
           Matter of Fulling v Palumbo (21 NY2d 30 [1967]), which


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figured prominently in Overhill and Off Shore, articulated the
"significant economic injury" test.    In Matter of Doyle v Amster
(79 NY2d 592, 596 [1992]), we partially overruled Fulling, which
was subsequently fully superseded by statute (see Sasso, 86 NY2d
at 383 [chapter 692 of the Laws of 1991 establishes the criteria
for an area variance, and applicants no longer "need [to] show
'practical difficulties' as required under Town Law former § 267
and prior case law"]).
          Here, Colin faults the lower courts for relying on
Overhill, and claims that Off Shore (which both those courts
cited, preceded by the signal "cf.") obligated the Board to apply
the criteria for a use variance when considering whether to grant
the applicants' request for relief from the Town Code's parking
and loading/unloading restrictions.    Colin claims this is the
case because Off Shore "laid down the rule that the determinative
factor . . . is whether the local code imposes the off-street
parking requirement based on area/square footage [calling for an
area variance] or based on the intensity of the use [calling for
a use variance]."1   We turn first, then, to an examination of
Overhill and Off Shore.


     1
     The Town Code's off-street loading/unloading requirements
are based on area/square feet; i.e., one loading area for each
10,000 square feet for retail/warehouse uses, and one loading
area for each 40,000 square feet for office/hotel/all other
business uses. Thus, even under Colin's reading of Off Shore,
the ZBA properly applied the test for an area variance to the
applicants' request for a variance from off-street
loading/unloading requirements.

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                            Overhill
             In Overhill, a four-story building, located in a
Business A district in the Village of Scarsdale, was completed in
early 1955 as part of a combination office and apartment
structure.    At the time of the structure's construction, local
zoning regulations did not mandate off-street parking for office
buildings, although an indoor parking garage was built, in part,
it would appear, to comply with then-applicable parking
requirements for apartment houses.       This garage occupied the
structure's entire basement and part of the ground floor of the
office building.    The zoning ordinance was subsequently amended
to require one off-street parking space for each 150 square feet
of floor area of buildings used for (non-retail) business
purposes and existing prior to November 1, 1959.      The parking
garage in the basement and ground floor of the office building
supplied fewer spaces (117) than the amendment called for (306).
             In 1970, Overhill Building Company (Overhill), the
office building's owner,2 applied for a permit to convert a
portion of existing ground-floor garage space to business office
use, thereby reducing the size of the garage.      The building
inspector denied the permit on the ground that the proposed
modification did not comply with zoning regulations.      Overhill
then filed an appeal or application for variance with the zoning

     2
     By this time, the apartment house was under separate
ownership; however, entry to the apartment building's basement
garage was via the office building's basement garage.

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                               - 10 -                         No. 150
board of appeals.
            At the ensuing hearing, Overhill submitted proof that
the alteration would yield an additional $25,000 in annual income
(the New York Telephone Company had essentially signed up to
lease the new office space to be created); that the garage had
never been occupied to its full capacity and would continue to be
adequate even after completion of the alterations (this was
apparently not disputed); and that none of the buildings in the
district complied with the ordinance's parking regulations (also
undisputed).   In its findings of fact, the zoning board of
appeals determined that the requested variance, if approved,
would require an additional 12 parking spaces and would also
reduce the existing garage area by 12 spaces.   The board
therefore denied the application, reasoning that the requested
variance would enlarge a nonconforming use and that the hardship,
being self-created, was not entitled to relief.
            Overhill commenced a CPLR article 78 proceeding against
the zoning board of appeals and the building inspector, seeking
to annul the board's determination and compel issuance of the
requested building permit.   Supreme Court concluded that because
Overhill asked for a building permit to convert garage space to
office space, a use permitted in the district, the variance
sought was properly treated as an area rather than a use
variance.   Applying Fulling, the judge decided that Overhill was
entitled to the area variance and issuance of the building


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permit.   The Appellate Division affirmed without opinion, with
two Justices dissenting (Matter of Overhill Bldg. Co. v Delany,
35 AD2d 1012 [2d Dept 1970]).
           On appeal to us, the zoning board of appeals contended
that the lower courts had "erroneously treated [the] litigation
as a matter involving an area variance," and urged us to "adopt
the view that [Overhill] sought a use variance and . . . since
the law does not generally sanction enlargements of nonconforming
uses, no variance should be granted" (Overhill, 28 NY2d at 453
[internal citation omitted]).    We disagreed, explaining that
           "when courts are faced with applications for variances
           from zoning regulations which prescribe the number of
           off-street parking spaces required for a building, the
           rules relating to area variances obtain . . . In the
           present case [Overhill] is seeking to convert . . .
           garage space to office space, which is a permitted use.
           Consequently, while the change in this case is not
           strictly one of area, the variance is to be treated as
           an area variance . . . Stated differently, [Overhill's]
           proposed alteration would conform to approved uses for
           Business A zones. However, since it is governed by an
           off-street parking requirement, a limitation on floor
           area, cases such as Matter of Otto v Steinhilber
           [articulating criteria for obtaining a use variance],
           are inapposite and the instant controversy must be
           resolved according to the law of area variances" (id.
           at 453-454).
           We nonetheless reversed, based on application of
Fulling, which held that "although financial hardship may satisfy
the property owner's initial burden, once the zoning authorities
show that the ordinance promotes public health, safety or
welfare, mere financial loss is insufficient to require a
variance" from area restrictions (id. at 454).    While Overhill


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had met its initial burden ("significant economic injury" as
articulated in Fulling), the purpose of the parking regulations
was to promote public safety by relieving traffic congestion, and
the zoning authorities could have "reasonably determine[d] that
further increases in the amount of square feet devoted to
business use would be likely to result in traffic problems" (id.
at 457).   As a result, we opined, the zoning board of appeals'
decision to deny the variance could "only be considered arbitrary
if the hardship caused deprive[d] the property owner of any use
of the property to which it [was] reasonably adapted [and] mere
financial loss [was not] hardship within the meaning of this
rule" (id.).   Here, all Overhill had shown was "mere financial
loss" -- i.e., $25,000 in lost rental income; it had "not been
deprived of the use of its property [which] remain[ed] a valid
apartment and business use" (id.).
                               Off Shore
           In January 1969, Off Shore Restaurant Corporation (Off
Shore), which operated a cocktail lounge in leased premises in
the City of Long Beach, purchased nearby property, a parcel
measuring 40 feet by 90 feet and virtually entirely occupied by a
building with a store in front and an apartment in back.    At the
time, the store was a delicatessen and restaurant with seating
capacity for approximately 62 people, which had been in business
at that location for about 12 years.   Off Shore intended to open
and operate a restaurant and cocktail lounge in the building.


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            The building was situated in a Business B district;
when it was erected in 1922, zoning regulations did not mandate
off-street parking and none was provided.    By the 1950's, though,
the local municipal code mandated minimum off-street parking in
all zoning districts in connection with the "alteration, erection
or increase by units or dimensions of any building or structure."
For "restaurants, night clubs, tea rooms, lunch counters or the
like," the code required one off-street parking space for each
four seats, plus such additional spaces for employee parking as
the building commissioner deemed necessary.    The code also
specified in a related section that "[w]henever there is a change
in the number of employees or business visitors or in the lawful
use of the premises or in any other unit of measurement
specified" for off-street parking requirements, and the change
created a need to increase the number of spaces by more than 15%,
this additional off-street parking had to be provided.
            In December 1969, Off Shore applied to the building
commissioner for a permit to allow it to remodel the building's
interior by installing wall paneling, new kitchen equipment and a
bar, and modernizing the bathrooms.     No structural changes or
additions were contemplated; the building's layout was to remain
the same.   Off Shore planned to increase restaurant seating
capacity from 62 to 85, though.   The commissioner denied the
permit upon the ground that Off Shore's proposed alterations were
subject to and did not comply with the code's parking


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                                - 14 -                         No. 150
regulations, described above.
            Off Shore appealed, and also applied to the zoning
board of appeals for permission to alter the premises for use as
a restaurant and/or cocktail lounge or, in the alternative, for a
waiver of the off-street parking requirements.   Off Shore made
two arguments; first, that the code exempted nonconforming
buildings from the parking restrictions so long as no structural
alterations were made or additions built and the intended use was
permitted in the district; second, that, in any event, it had
made a showing of practical difficulties, justifying an area
variance.   With respect to the first argument, Off Shore relied
on the code's saving provision.
            The zoning board of appeals determined that the zoning
ordinance obligated Off Shore to provide off-street parking space
for 24 cars, and denied the application.   The findings of fact
emphasized that Off Shore's building abutted a heavily traveled
thoroughfare near a residential district, and that the use of the
premises for a restaurant and cocktail lounge without off-street
parking threatened to exacerbate existing traffic congestion and
the shortage of available parking spots.   Additionally, the board
opined that Off Shore had submitted no evidence to justify the
granting of a variance, and that "practical difficulties and
unnecessary hardships would not result in carrying out the strict
letter of the ordinance."
            Off Shore commenced a CPLR article 78 proceeding


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against the building commissioner and the zoning board of
appeals, seeking to compel the commissioner to issue a building
permit that did not mandate compliance with the code's parking
regulations, and to annul the board's determination to the extent
it affirmed the commissioner's decision and denied Off Shore's
application for a variance.    Supreme Court sided with Off Shore.
The judge held that the building was exempt from the code's
parking regulations because its contemplated use was not
prohibited in the zoning district and no structural additions or
alterations were to be made.   The Appellate Division affirmed
without opinion, with two Justices dissenting (Matter of Off
Shore Rest. Corp. v Linden, 36 AD2d 948 [2d Dept 1971]).
          On appeal to us, Off Shore again urged principally that
its proposed alterations were exempt from the code's parking
restrictions by virtue of the saving provision.   We reversed,
with one Judge dissenting, holding that
          "[t]he seating capacity of the proposed cocktail lounge
          would be over 15% greater [than the capacity of the
          preexisting delicatessen-restaurant], thus triggering a
          zoning provision applicable to pre-existing uses,
          requiring additional off-street parking. Denial of a
          variance was not arbitrary since there remained a
          reasonable use of the property" (Off Shore, 30 NY2d at
          162).
          The majority considered Off Shore's interpretation of
the saving provision to be incompatible with the code's general
provisions regulating changes in use and issuance of use permits,
which forbade use of any building that had been altered or
erected or a change in the use carried out in a building absent a

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use permit; and specified that a use permit would not be issued
unless the building and use complied with all code requirements.
According to the majority, these provisions "clarif[ied] any
ambiguities" in the saving provision and mandated "complete
conformity" with the code, including its parking regulations,
whenever any change in use occurred, even a change between uses
permitted in the zoning district, as happened here (id. at 166).
The increase in seats from 62 to 85 (not including new
accommodations at the bar) exceeded the ordinance's 15%
threshold, triggering the need, the majority estimated, for
approximately eight additional off-street parking spots.   Since
Off Shore's application did not provide for any off-street
parking, the zoning authorities had properly denied the permit.
          The majority then turned to Off Shore's request, in the
alternative, for a variance.   Observing as an initial matter,
that "standards governing the zoning board's discretion to grant
or deny variances are found in case law," the majority
acknowledged that parking restrictions involve both use and area.
In the paragraph that lies at the heart of the dispute in this
case, the Off Shore court continued as follows:
               "To be sure, off-street parking restrictions do
          not fall easily into either classification; hence, the
          divergence among the cases. Parking restrictions are
          an adjunct restriction sometimes tied to a use and at
          other times to an area restriction, generally depending
          upon the problem created by the use or the limited area
          involved. On this view, in determining the rules to
          govern variance from parking restrictions one should
          look to the reasons for the restrictions and then adapt
          rules applicable to use or area variances, whichever

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          best meets the problem. Illustratively, a parking
          restriction may be required because the building lots
          are too small, or on the other hand, because the use of
          the building regardless of lot size will cause many
          vehicles to be brought to the site. Most often, the
          parking restriction will relate to uses, and the
          ordinance by requiring off-street parking for certain
          uses by a stated formula will so indicate, as in this
          case. In others, the parking restriction may be
          related by the ordinance to the area. That was the
          situation in [Overhill] where the requirement for off-
          street parking was defined in terms of the office space
          available in the subject building. The Overhill court,
          looking to [Fulling], with some qualifications it is
          true, applied rules applicable to area variances but
          also spoke of the test as one which was not met unless
          the owner was left with no reasonable use for his
          property. In this case, applying the rules applicable
          to use variances and in accord with the analysis in the
          Overhill case, it is material that [Off Shore] has made
          no showing that the property cannot yield a reasonable
          return without increasing the burden on street parking
          in violation of . . . the zoning ordinance. Indeed,
          there is no indication that the present use of the
          property as a delicatessen is not profitable. No
          hardship is shown except that a desired expansion is
          not available, and that is exactly what the policy in
          terminating nonconforming uses is designed to control"
          (id. at 169-170).
          The dissenting Judge was not persuaded that "a permit
should not issue simply because of a technical change from a
delicatessen to a liquor-dispensing restaurant, even though both
are permitted uses in the business zone" (id. at 170).     He agreed
with the courts below that absent an addition or structural
alteration of the building, Off Shore's proposed use was exempt
from the code's parking restrictions.   The dissenting Judge then
added that, if he could agree that the code's off-street parking
provisions did, in fact, apply to Off Shore, he would conclude
that the zoning board of appeals had properly denied the


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variance, apparently based on Overhill (which he had authored)
and Fulling.   He chided his colleagues, however, for seeming to
"retract from . . . [Overhill] where [the Court] recently
postulated that off-street parking requirements take on the
semblance of limitations on area and as such must be resolved
according to that body of law" (id. at 170-171).
                               III.
          Colin bases its entire case on the paragraph from Off
Shore quoted in full above.   While far from clear, that
paragraph, read in the context of the Overhill and Off Shore
decisions, seems to say the following:
          (1) A parking restriction may relate to use or to area
          in the particular locality, depending upon "the problem
          created by the use or the limited area involved."
          (2) In determining whether a variance from an off-
          street parking requirement is an area or use variance,
          "one [must] look to the reasons for the restrictions
          and then adapt rules applicable to use or area
          variances, whichever best meets the problem." "One"
          seems to refer to the zoning authorities, but may also
          refer to a court attempting to glean the zoning
          authorities' intent. In Off Shore itself, the majority
          interpreted the code to require a use permit for any
          change in use, even a change from one to another
          permitted use, and to obligate the applicant for such a
          use permit to comply with all code requirements in
          effect at the time of the application. Thus, the
          majority seems to have reasoned that this particular
          locality, by including especially stringent use permit
          provisions in its code, expressed a strong policy
          preference to speed up elimination of nonconforming
          uses, a goal "best [met]" or fulfilled by treating
          variances from off-street parking requirements as use
          rather than area variances.
          (3) In any event, the "reasons for the restrictions"
          will generally be apparent from the face of the
          ordinance, as the restriction will either relate to

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          use, by stating a formula for certain uses (as in Off
          Shore); or, contrariwise, to area, by defining the
          restriction in terms of the space in the building (as
          in Overhill).
          (4) Even though the Overhill court considered the
          parking restriction to be an area variance, it held
          that the variance was properly denied because, applying
          the Fulling test, the owner (Overhill) could not show
          that it was "left with no reasonable use for [its]
          property."
          (5) Whether applying the "rules applicable to use
          variances" (at the time, the undue hardship rule as
          articulated in Steinhilber) or "the analysis of
          Overhill" (the Fulling test), Off Shore did not make
          the showing necessary for a variance from the code's
          off-street parking requirements.
          This exegesis prompts several thoughts.    First, since
Off Shore was not entitled to a variance even under the more
lenient test for an area variance, everything the majority in Off
Shore said about use variances was extraneous to the decision and
might be considered dictum.    But these remarks were not
unconsidered.   To the contrary, the majority seems to have gone
out of its way to try to narrow the Court's then very recent
decision in Overhill, as the dissenting Judge complained.    In any
event, the distinctions that the Off Shore majority sought to
make are illusory.   Off-street parking requirements are routinely
tied to and vary with a use.   In Overhill, the use was a (non-
retail) business; in both Off Shore and this case, the use was a
restaurant.   And parking restrictions are generally amenable to
expression in terms of either a formula or space, or some
combination thereof.   For example, here the Town Code called
generally for a restaurant to provide one off-street parking

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space for every four seats for patrons; but the limitation could
just as easily have been formulated in terms of one parking spot
for every so many square feet of floor area devoted to patron
use.
            Finally, and whether dictum or not, Off Shore's
declarations about use variances for off-street parking
requirements have effectively been superseded by statute.     Off
Shore requested a building permit to make alterations in
connection with a proposed change from one use permitted in the
zoning district (delicatessen and restaurant) to another
(cocktail lounge and restaurant).   But as of July 1, 1994,
General City Law § 81-b (1) has defined a "use variance" as an
authorization for the use of land for a purpose "otherwise not
allowed or . . . prohibited" in the zoning district; and an "area
variance" as an authorization to use land "in a manner which is
not allowed by the dimensional or physical requirements" of the
zoning regulations (see also Town Law § 267 [1]; Village Law § 7-
712 [1]).   Off-street parking requirements, while differing
depending on use, regulate how the property's area may be
developed, akin to minimum lot size or set-back restrictions.
Accordingly, area variance rules apply to requests to relax off-
street parking requirements so long as the underlying use is
permitted in the zoning district; use variance rules prevail only
if the variance is sought in connection with a use prohibited or
otherwise not allowed in the district (see generally, Terry Rice,


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Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town
Law § 267-b at 294-295).
            In this case, Manhasset Pizza and Fradler applied for
an off-street parking variance in connection with a change in the
storefront's use from a retail gift shop to a restaurant.
Because both uses are permitted in the zoning district, the ZBA
properly considered the application as a request for an area
variance.   We have reviewed Colin's remaining arguments and
consider them to be without merit.
            Accordingly, the order of the Appellate Division should
be affirmed, with costs.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order affirmed, with costs. Opinion by Judge Read. Chief Judge
Lippman and Judges Graffeo, Smith, Pigott, Rivera and
Abdus-Salaam concur.

Decided October 16, 2014




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