New York Law Review

Matter of Cowan v. Kern, 41 N.Y.2d 591 (1977): Substantial Evidence Standard for Zoning Variances

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Matter of Cowan v. Kern, 41 N.Y.2d 591 (1977)

When reviewing zoning determinations by the Board of Standards and Appeals, the Board of Estimate’s power is limited to assessing whether substantial evidence supports the BSA’s determination.

Summary

This case concerns a challenge to the New York City Board of Estimate’s disapproval of a zoning variance granted by the Board of Standards and Appeals (BSA). The petitioner sought a variance to construct a commercial building in a residentially zoned area. The Court of Appeals held that the Board of Estimate exceeded its authority by overturning the BSA’s decision, as the BSA’s grant of the variance was supported by substantial evidence. The court emphasized that the Board of Estimate’s review is limited to determining whether substantial evidence supports the BSA’s determination, and the petitioner demonstrated the necessary criteria for a variance.

Facts

The petitioner sought a zoning variance to build a two-story commercial building in Staten Island, an area zoned residential. The Board of Standards and Appeals (BSA) initially granted the variance. The Board of Estimate of the City of New York overturned the BSA’s decision, arguing that the petitioner failed to meet the criteria for a variance.

Procedural History

The petitioner initiated an Article 78 proceeding challenging the Board of Estimate’s disapproval. The Supreme Court, Richmond County, initially ruled in favor of the petitioner, reinstating the BSA’s grant of the variance. The Appellate Division reversed this decision. The New York Court of Appeals then reversed the Appellate Division, reinstating the Supreme Court’s judgment.

Issue(s)

  1. Whether the Board of Estimate exceeded its authority by overturning the BSA’s grant of the zoning variance.

Holding

  1. Yes, because the BSA’s determination was supported by substantial evidence, and the Board of Estimate’s review power is limited to assessing whether such evidence exists.

Court’s Reasoning

The Court of Appeals held that the Board of Estimate’s power to review zoning determinations of the BSA is limited by subdivision c of section 668 of the City Charter to whether there was substantial evidence to support the BSA’s determination. The Court found that the petitioner had presented substantial evidence satisfying all five criteria necessary for a variance:

  • Unique physical characteristics of the lot creating unnecessary hardship.
  • No reasonable rate of return from the permitted use.
  • The variance would not alter the essential character of the neighborhood.
  • The hardship was not self-created.
  • The variance was the minimum necessary to afford relief.

The court stated, “A review of the record demonstrates, however, that petitioner established by substantial evidence that: there were unique physical characteristics to the lot that would create unnecessary hardship in complying with the zoning provisions; there would be no reasonable rate of return from the permitted use; a variance would not alter the essential character of the neighborhood; the hardship was not self-created; and the variance was the minimum necessary to afford relief.” Because the BSA’s decision was supported by substantial evidence, the Board of Estimate erred in overturning it. The court also dismissed the petitioner’s constitutional challenge to the city charter provisions as without merit.

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