New York Law Review

Tag: area variance

  • Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014): Off-Street Parking Variances Treated as Area Variances

    Colin Realty Co., LLC v. Town of N. Hempstead, 24 N.Y.3d 96 (2014)

    A zoning board of appeals 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.

    Summary

    This case clarifies whether off-street parking variances should be treated as area or use variances. Manhasset Pizza sought to open a restaurant in a storefront in North Hempstead, NY, requiring variances from the town’s off-street parking requirements. The Zoning Board of Appeals (ZBA) granted the variances, treating them as area variances. Colin Realty, a neighboring property owner, challenged this decision, arguing that the variances should have been evaluated as use variances. The New York Court of Appeals held that off-street parking variances are generally treated as area variances when the intended use is permitted in the zoning district, overruling any conflicting suggestion in prior case law.

    Facts

    Fradler Realty Corporation owned a building in a Business A district in North Hempstead. Manhasset Pizza sought to lease a vacant storefront within the building to operate a 45-seat restaurant, a permitted use in the district contingent upon a conditional use permit. The Town Code required 24 off-street parking spaces for the proposed restaurant, a requirement stemming from a 1939 Town Code change. The existing building, constructed before the parking requirements, did not provide the requisite parking. Manhasset Pizza applied for the conditional use permit and requested variances from the parking requirements.

    Procedural History

    The Town of North Hempstead ZBA granted the conditional use permit and the requested variances, treating them as area variances. Colin Realty, a neighboring property owner, filed a hybrid CPLR article 78 proceeding/declaratory judgment action challenging the ZBA’s determination. The Supreme Court denied Colin Realty’s petition, upholding the ZBA’s decision. The Appellate Division affirmed, holding that the ZBA properly treated the parking variances as area variances. Colin Realty appealed to the New York Court of Appeals.

    Issue(s)

    Whether a variance from off-street parking requirements for a permitted use should be treated as a use variance or an area variance.

    Holding

    No, because off-street parking requirements regulate how property area may be developed and are akin to minimum lot size or setback restrictions; therefore, area variance rules apply so long as the underlying use is permitted in the zoning district.

    Court’s Reasoning

    The Court of Appeals analyzed the distinction between use and area variances under Town Law § 267 (1), which defines a use variance as permission to use land for a purpose “which is otherwise not allowed or is prohibited” and an area variance as permission to use land “in a manner which is not allowed by the dimensional or physical requirements.” The court revisited its prior decisions in Matter of Overhill Bldg. Co. v Delany and Matter of Off Shore Rest. Corp. v Linden, acknowledging some ambiguity in the latter regarding parking variances. The Court noted that off-street parking requirements, while differing based on use, regulate how the property’s area may be developed, similar to minimum lot size or set-back restrictions. The Court stated that 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.” The Court explicitly overruled any conflicting suggestion in Off Shore. In this case, because the restaurant was a permitted use, the ZBA properly considered the variance application as a request for an area variance. The court emphasized the importance of considering the benefit to the applicant versus the detriment to the community, as required for area variances under Town Law § 267-b (3) (b). The court noted that in Overhill, “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.” The Court determined the ZBA balanced the statutory factors and based its findings on facts in the record, making its determination rational.

  • Real Holding Corp. v. Town of Wappinger, 1 N.Y.3d 298 (2004): ZBA Authority to Grant Area Variances for Special Use Permits

    Real Holding Corp. v. Town of Wappinger, 1 N.Y.3d 298 (2004)

    A zoning board of appeals (ZBA) has the authority to grant area variances from any requirement in a zoning regulation, including those for a special use permit, pursuant to Town Law § 274-b (3).

    Summary

    Real Holding Corp. (RHC) sought to develop a gasoline filling station on a parcel of land but was unable to meet the distance requirements for a special use permit. RHC applied to the Town of Wappinger’s ZBA for area variances, which were denied based on the ZBA’s belief that it lacked jurisdiction to grant variances from special use permit requirements. The New York Court of Appeals held that Town Law § 274-b (3) grants ZBAs the authority to issue area variances from special use permit requirements, clarifying the relationship between subdivisions (3) and (5) of the statute. This decision affirms the ZBA’s role in mitigating the rigid application of zoning regulations.

    Facts

    RHC acquired land in a Highway Business District previously used as a gas station. To re-establish a gas station, RHC needed a special use permit, but the property did not meet the Town Code’s distance requirements: 1,000 feet from residentially zoned lands and 2,500 feet from other gas stations. RHC’s initial variance request was denied by the ZBA, which cited a lack of jurisdiction. After being denied a special use permit by the Planning Board in 2000, RHC again requested variances from the ZBA, which again denied the application, maintaining it lacked the power to grant area variances from special use permit requirements absent explicit authorization from the Town Board.

    Procedural History

    RHC filed a CPLR Article 78 proceeding to annul the ZBA’s decision. Supreme Court granted RHC’s petition, remitting the matter to the ZBA, holding that Town Law § 274-b (3) authorizes ZBAs to grant area variances from special use permit requirements. The Appellate Division affirmed. The ZBA appealed to the New York Court of Appeals.

    Issue(s)

    Whether Town Law § 274-b (3) authorizes a zoning board of appeals (ZBA) to grant area variances from special use permit requirements.

    Holding

    Yes, because Town Law § 274-b (3) plainly states that “application may be made to the [ZBA] for an area variance” where a special use permit does not comply with zoning regulations, “[n]otwithstanding any provision of law to the contrary.”

    Court’s Reasoning

    The Court relied on the plain language of Town Law § 274-b (3), which allows application to a ZBA for an area variance when a special use permit does not comply with “zoning regulations.” The Court noted that the statute does not differentiate between general zoning requirements and those specific to special use permits. The court stated, “To hold that a ZBA may vary certain zoning provisions only if expressly empowered to do so by the town board overlooks the entire purpose of the ZBA, which is to provide relief in individual cases from the rigid application of zoning regulations enacted by the local legislative body.” The Court further reasoned that Town Law § 274-b is entitled “Approval of special use permits,” and subdivision (3) directs that application for an area variance may be made to the ZBA “pursuant to” section 267-b, which supplies the procedures for a ZBA to follow when issuing an area variance. The Court also clarified that subdivision (5), which allows a town board to empower an “authorized board” to waive special use permit requirements, does not conflict with subdivision (3); subdivision (5) provides a broader waiver authority, while subdivision (3) specifically addresses area variances granted by the ZBA. The Court emphasized that ZBAs are “vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances” (Matter of Commco, Inc. v Amelkin, 62 NY2d 260, 266 [1984]). The Court found that the legislative history supported the distinct purposes of subdivisions (3) and (5), with subdivision (3) addressing dimensional difficulties through area variances granted by the ZBA.

  • Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004): Upholding Zoning Board Discretion in Area Variance Decisions

    Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004)

    Local zoning boards have broad discretion in considering applications for area variances, and their decisions will be upheld if they have a rational basis and are supported by substantial evidence, even if a court might have decided the matter differently.

    Summary

    Gregory Pecoraro sought an area variance to build a single-family home on a substandard parcel of land. The Board of Appeals of the Town of Hempstead denied the variance, citing the substantial nature of the variance requested, the self-created difficulty (the parcel was illegally subdivided), and the potential negative impact on the character of the neighborhood. Pecoraro challenged the denial, but the New York Court of Appeals reversed the Appellate Division’s decision, holding that the Board did not abuse its discretion. The Court emphasized the broad discretion afforded to local zoning boards and the limited role of judicial review in such matters, finding the Board’s decision rational and supported by evidence.

    Facts

    Pecoraro entered into a contract to purchase a substandard parcel of land contingent on obtaining an area variance to build a single-family dwelling. The property, located in a residential zone requiring 6,000 square feet and 55 feet of frontage, had only 4,000 square feet and 40 feet of frontage. The lot had been illegally subdivided in 1959. A prior variance request for the same parcel had been denied in 1969. Pecoraro presented evidence that the proposed development would be in character with the neighborhood and would not negatively affect property values.

    Procedural History

    Pecoraro applied for an area variance, which the Board of Appeals denied. He then commenced an Article 78 proceeding challenging the Board’s determination. The Supreme Court granted the petition, annulling the Board’s decision and remanding for further proceedings. The Appellate Division modified, directing the Board to issue the variance. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Board of Appeals of the Town of Hempstead abused its discretion, as a matter of law, in denying Pecoraro’s application for an area variance.

    Holding

    No, because the Board reasonably considered the factors outlined in Town Law § 267-b, weighed the petitioner’s interest against the interest of the neighborhood, and its decision had a rational basis supported by substantial evidence.

    Court’s Reasoning

    The Court of Appeals emphasized the broad discretion afforded to local zoning boards in area variance decisions. It stated that courts may only set aside a zoning board’s determination if the board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community pressure. Citing Matter of Cowan v. Kern, the Court noted that zoning decisions are best made by local officials familiar with local conditions. The Court found that the Board’s decision was rational and supported by substantial evidence, as the Board properly considered the factors in Town Law § 267-b(3), including the potential negative impact on the neighborhood’s character, the substantiality of the variance requested, and the self-created nature of the difficulty. The Board’s conclusion that the area variance would have a negative impact was supported by evidence showing that the area was overwhelmingly conforming or larger than the zoning requirements. “The variance sought would have allowed a 33.3% deficiency in lot area and a 27.3% deficiency in frontage width. It was not an abuse of discretion to determine that the substantiality of such a variance weighed against granting it.” The Court also noted that granting a variance for an illegally substandard parcel could set a negative precedent, potentially leading to landowners illegally subdividing oversized parcels in the future. The Court concluded that it would not substitute its judgment for the reasoned judgment of the zoning board, emphasizing that “The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them”.

  • Ifrah v. UZB of Town of Harrison, 17 N.Y.3d 20 (2001): Balancing Test for Area Variances

    Ifrah v. UZB of Town of Harrison, 17 N.Y.3d 20 (2001)

    When determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted, considering factors such as neighborhood character, alternative solutions, the substantiality of the variance, environmental impact, and whether the difficulty was self-created.

    Summary

    Philippe Ifrah sought area variances to subdivide a nonconforming parcel into two substandard lots. The Zoning Board of Appeals denied the application, citing the substantial deviation from the one-acre requirement, and the negative impact on neighborhood character. The Appellate Division reversed, focusing on the prevalence of substandard lots in the area. The New York Court of Appeals reversed the Appellate Division, holding that the Board’s decision had a rational basis and was supported by substantial evidence, emphasizing that lot size is not the only relevant factor and the Board properly considered other factors like traffic and neighborhood aesthetics. The Court emphasized the need for a balancing test considering all statutory factors.

    Facts

    In 1996, Philippe Ifrah purchased a 0.77-acre property in Harrison, NY, which was already nonconforming under the Town’s zoning ordinance requiring one acre per dwelling. The lot was originally two separate lots which merged in 1974 under common ownership. Ifrah sought to subdivide the parcel into two lots, one 0.40 acres and the other 0.37 acres, necessitating four area variances. The proposed new construction was of a modern style, in a neighborhood of neo-Tudor homes. The proposed new driveway had a steep slope at a difficult intersection.

    Procedural History

    The Zoning Board of Appeals of the Town of Harrison denied Ifrah’s variance application. Ifrah commenced an Article 78 proceeding challenging the Board’s determination. Supreme Court denied the petition. The Appellate Division reversed, granting the petition. The New York Court of Appeals reversed the Appellate Division and dismissed the petition, upholding the Zoning Board’s decision.

    Issue(s)

    Whether the Zoning Board of Appeals rationally based its decision on substantial evidence when it denied the area variances, considering the detriment to the neighborhood and the statutory factors outlined in Town Law § 267-b (3)?

    Holding

    Yes, because the Zoning Board engaged in the required balancing test, weighing the benefit to the applicant against the detriment to the neighborhood, and its decision was supported by objective factual evidence relating to neighborhood character, traffic concerns, and the substantiality of the requested variances.

    Court’s Reasoning

    The Court of Appeals emphasized that local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the board’s action was illegal, arbitrary, or an abuse of discretion. The Court stated that a zoning board’s determination should be sustained if it has a rational basis and is supported by substantial evidence. The Court found that the Board considered the statutory factors outlined in Town Law § 267-b (3), including the impact on neighborhood character, the availability of alternative solutions, the substantiality of the variance, the environmental impact, and whether the difficulty was self-created.

    The Court rejected the Appellate Division’s focus solely on the prevalence of substandard lots in the area, stating, “Lot size, however, is not the only relevant factor when considering impacts on the character of a neighborhood.” The Court noted that the Board considered the distinctive architectural style of the existing homes and the potential disturbance caused by a modern home. It also considered evidence of traffic flow, safety, and parking impacts.

    The Court highlighted that the variances sought were substantial (at least 60%), the difficulty was self-created, and the petitioner could still make productive use of his property as it already contained a habitable residence. The Court concluded that the Board could rationally conclude that the detriment to the neighborhood outweighed the benefit sought by the petitioner, and its determination denying the variances was not arbitrary or capricious. The court stated, “[T]he Board could rationally conclude that the detriment the proposed subdivision posed to the neighborhood outweighed the benefit sought by petitioner, and its determination denying the requested variances was not arbitrary or capricious.”

  • Tall Trees Construction Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86 (2001): Effect of Repeated Tie Votes on Variance Applications

    Tall Trees Construction Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86 (2001)

    When a quorum of a zoning board of appeals is present and participates in a vote on a variance application, a vote of less than a majority of the board in favor of the application is deemed a denial of the variance.

    Summary

    Tall Trees Construction Corporation sought area variances from the Town of Huntington Zoning Board of Appeals to subdivide a property. After the Board repeatedly issued “no action” decisions due to tie votes, Tall Trees initiated Article 78 proceedings. The New York Court of Appeals held that repeated tie votes by a zoning board on a variance application, where a quorum is present and voting, effectively constitute a denial of the application. The Court further found that the denial in this specific case was arbitrary and capricious, given the evidence presented and the Board’s prior approvals of similar applications.

    Facts

    Tall Trees Construction Corporation applied to the Town of Huntington Zoning Board of Appeals for area variances to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel in question, and therefore, abstained from voting. The initial vote resulted in two members voting to deny, two voting to grant, and two absent, leading to a “no action” determination. The Board reiterated the same “no-action” determination after being compelled to vote again by court order.

    Procedural History

    1. Tall Trees initially commenced a CPLR Article 78 proceeding after the first “no action” decision, seeking to annul the Board’s decision and compel the granting of the variances. The Supreme Court remitted the matter back to the Board.

    2. Following the Board’s second “no action” decision, Tall Trees commenced a second CPLR Article 78 proceeding. Supreme Court granted the petition, annulled the Board’s second decision, and granted the variances.

    3. The Appellate Division reversed, remitting the matter to the Board for a new hearing, concluding that the Board’s vote was not a denial.

    4. The New York Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s judgment.

    Issue(s)

    Whether repeated tie votes by a Zoning Board of Appeals on an application for area variances, where a quorum is present and participates in the voting, constitutes a denial of the application.

    Holding

    Yes, because General Construction Law § 41 allows valid action by a body as long as there is participation by a majority, and Town Law § 267-a(4) requires a concurring majority to “reverse” a determination or to “grant” a variance, but does not specify the same requirement for a denial. Therefore, failure to achieve a concurring majority to grant the variance results in a denial.

    Court’s Reasoning

    The Court of Appeals reasoned that a harmonious reading of General Construction Law § 41 and Town Law § 267-a(4) indicates that while a majority of the board must participate to exercise authority, a concurring majority is not required to deny a variance application. Town Law § 267-a(4) explicitly requires a concurring majority to “reverse” a determination or to “grant” a variance. The absence of such a requirement for denial implies that if a concurring vote does not exist to grant the application, it is necessarily denied.

    The Court explicitly rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals, which had concluded that a tie vote constitutes non-action. The Court found that Walt Whitman‘s reliance on Matter of Squicciarini v Planning Bd. was misplaced, as Squicciarini involved a situation where a majority of the board did not participate in the vote, violating General Construction Law § 41.

    The Court also addressed the specific facts of the case, finding the Board’s denial of the variance to be arbitrary and capricious. Citing Matter of Sasso v Osgood, the Court reiterated the balancing test required when deciding on area variances, weighing the benefit to the applicant against the detriment to the community. The Court emphasized that the Board provided no factual findings to support its denial, and that the record contained unrefuted evidence that the variances would have minimal adverse impact on the neighborhood. Quoting Knight v Amelkin, the court stated, “ ‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’ ” Given that similar applications had been approved in the past, the denial in this case was deemed arbitrary and capricious.

    The court found that the Board’s repeated tie votes, in effect, blocked the applicant’s right to judicial review and would leave the petitioner’s application in “zoning purgatory.” The Court held that the benefit of granting the variance was significant, the detriment to the community minimal, and that the Board had acted arbitrarily.

  • Tall Trees Construction Corp. v. Zoning Board of Appeals, 97 N.Y.2d 86 (2001): Effect of Tie Votes on Variance Applications

    97 N.Y.2d 86 (2001)

    When a quorum of a Zoning Board of Appeals is present and participates in a vote on a variance application, a tie vote that fails to garner a majority to grant the application is deemed a denial.

    Summary

    Tall Trees Construction Corp. applied for area variances to subdivide a property. The Zoning Board of Appeals repeatedly deadlocked on the application. Tall Trees then initiated a CPLR article 78 proceeding arguing the tie vote should be considered a denial. The New York Court of Appeals held that a tie vote by a zoning board, where a quorum is present and participates in the vote, is effectively a denial of the variance application. The Court also determined that the denial was arbitrary and capricious because the benefit to the applicant was significant while any detriment to the community was minimal, and similar applications had been approved in the past.

    Facts

    Tall Trees Construction Corp. sought area variances from the Town of Huntington Zoning Board of Appeals to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel. The Board initially issued a “NO ACTION” decision after a vote of 2-2, with two members absent and Lamanna abstaining. After a court order to reconsider, the Board again issued a “NON-ACTION” determination based on the same vote.

    Procedural History

    Tall Trees initially commenced a CPLR article 78 proceeding, and the Supreme Court remitted the matter to the Board for another vote. When the Board again deadlocked, Tall Trees initiated a contempt proceeding. The Supreme Court then granted the petition, annulled the Board’s second decision, and granted the variances. The Appellate Division reversed, remitting the matter for further proceedings, including a new hearing. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a tie vote by a Zoning Board of Appeals, where a quorum is present and participates in the vote, constitutes a denial of a variance application.

    Holding

    Yes, because although Town Law § 267-a(4) requires a concurring majority vote to grant a variance, it does not require the same majority vote concurrence for a denial. If no concurring vote of the majority exists to grant an application after participation and voting by a majority of the board, the application is denied.

    Court’s Reasoning

    The Court reasoned that General Construction Law § 41 allows valid action by a body as long as there is participation by a majority of the whole number. Town Law § 267-a(4) mandates a concurring majority vote to reverse a determination or grant a variance, but conspicuously omits this requirement for denial. The Court harmonized these provisions by concluding that if a majority participates and votes, the absence of a majority vote to grant the application results in its denial. The Court rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals that a tie vote is equivalent to nonaction because the Walt Whitman decision incorrectly relied on Matter of Squicciarini v Planning Bd. where there was no majority participation. The Court stated, “[w]e find it curious that this particular Zoning Board of Appeals has a history of `nonaction’ tie votes which, in effect, block an applicant’s right to judicial review.” The court found that the denial of the variance was arbitrary and capricious because the unrefuted evidence presented by Tall Trees demonstrated that the benefit of granting the variances was great, any detriment to the community was minimal, and nearly identical variance applications had been approved in the past. The Court cited the principle that “`[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’”

  • DeTroia v. Schweitzer, 87 N.Y.2d 338 (1995): Interpreting Zoning Ordinances and Single and Separate Ownership Exemptions

    DeTroia v. Schweitzer, 87 N.Y.2d 338 (1995)

    A zoning ordinance’s single and separate ownership exception, designed to protect landowners from amendments that render their previously conforming property useless, should be broadly construed to include deficiencies in frontage and width, not just total square footage.

    Summary

    DeTroia sought a building permit for their undersized lot, arguing they were exempt from dimensional requirements due to a “single and separate ownership” clause in the zoning ordinance. The Zoning Board of Appeals (ZBA) denied the permit, interpreting the exemption to apply only to lots deficient in square footage, not width or frontage. The Court of Appeals reversed, holding that the ZBA’s narrow interpretation undermined the purpose of the exemption, which is to protect landowners from zoning amendments that render their previously conforming property unbuildable. The Court emphasized that zoning ordinances should be construed in favor of the property owner, particularly regarding single and separate ownership exceptions.

    Facts

    The DeTroias owned a vacant lot in Farmingdale, New York, which had been under separate ownership since 1899. The lot’s frontage and width were less than 75 feet, as required by the zoning ordinance enacted after the lot’s separate establishment. The lot exceeded the minimum square footage requirement. The DeTroias sought a building permit, claiming they were exempt from the dimensional requirements under the single and separate ownership exception in the zoning ordinance. The ordinance stated that undersized plots under single and separate ownership at the time of the ordinance adoption could be improved with buildings complying “so far as practicable” with the ordinance.

    Procedural History

    The Village Zoning Board of Appeals (ZBA) denied the DeTroias’ building permit application. The Supreme Court reversed the ZBA’s decision. The Appellate Division reversed the Supreme Court, finding the ZBA’s determination had a rational basis. The New York Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s judgment.

    Issue(s)

    1. Whether the single and separate ownership exception in the Farmingdale zoning ordinance, which refers to a “plot smaller in area,” should be interpreted to apply only to lots substandard in total square footage or whether it also encompasses lots with insufficient frontage or width.

    Holding

    1. Yes, the single and separate ownership exception should be interpreted to encompass lots with insufficient frontage or width, because a term of greater comprehension includes a lesser term, and the purpose of the exception is to protect landowners from zoning amendments that render their previously conforming property unbuildable.

    Court’s Reasoning

    The Court reasoned that the ZBA’s interpretation violated the principle that a broader term includes a narrower term, stating, “the reference to a ‘plot smaller in area’ (Code of Village of Farmingdale § 105-154 [emphasis supplied]) in the single and separate ownership exemption, rather than specifying an exemption based solely in terms of square feet, should be interpreted as subsuming all of the dimensional restrictions included in ‘Lot area’ under section 105-39.”

    The Court also noted that the ZBA’s interpretation undermined the purpose of the single and separate ownership exemption, which is to prevent zoning ordinances from having a potentially unconstitutional confiscatory effect on long-term property owners. The Court observed that the ordinance should be interpreted to avoid objectionable, absurd, anomalous, and unjust results. It stated, “Lots rendered substandard as to width or frontage by a zoning ordinance are deprived of value in the same way as ones rendered deficient as to square footage.”

    Finally, the Court cited the rule that any ambiguity in zoning regulations must be resolved in favor of the property owner, referencing Matter of Allen v Adami, 39 NY2d 275, 277. The Court concluded, “Any ambiguity in the language used in such regulations must be resolved in favor of the property owner”.

  • Human Development Services of Port Chester, Inc. v. Zoning Board of Appeals of Village of Port Chester, 507 N.E.2d 703 (N.Y. 1987): Area Variances and Self-Created Hardships

    Human Development Services of Port Chester, Inc. v. Zoning Board of Appeals of Village of Port Chester, 507 N.E.2d 703 (N.Y. 1987)

    A self-created hardship is a factor to consider in area variance applications, but it does not automatically justify denial; the critical inquiry is whether strict enforcement of the zoning ordinance serves a valid public purpose that outweighs the harm to the property owner.

    Summary

    Human Development Services sought a rear-yard variance to install a driveway for a community residence. The Zoning Board of Appeals denied the variance, citing aesthetic concerns, insufficient parking, and self-created hardship. The New York Court of Appeals reversed, holding that the Board’s denial was arbitrary and capricious. The Court emphasized that while a self-created hardship is a relevant factor, the primary concern is whether strict enforcement of the ordinance serves a valid public purpose that outweighs the property owner’s injury. Here, the Village Attorney conceded that without the variance, the building would have to be torn down. The Court deemed that requiring the house’s removal to preserve its aesthetic charm was capricious, especially considering the proposed use was legally considered a single-family unit with adequate parking.

    Facts

    Human Development Services of Port Chester, Inc. (HDS) purchased property intending to use it as a community residence. HDS sought a variance from the Zoning Board of Appeals (the Board) to reduce the rear-yard setback requirement from 30 feet to 21.4 feet, to allow for a driveway along the rear lot line to reach a proposed parking area. HDS had attempted to purchase additional land from the adjacent owner without success. Prior to the purchase, HDS was aware that the village questioned the rear setback. The Village Attorney conceded the proposed use was a single-family dwelling under the statute and that without the variance, the building would have to be torn down.

    Procedural History

    HDS applied for a variance, which the Zoning Board denied. HDS then commenced a review proceeding. The Board sought dismissal, arguing no practical difficulty existed and any difficulty was self-created. The lower courts upheld the Zoning Board’s decision. The New York Court of Appeals reversed the order of the Appellate Division, finding the Board’s denial arbitrary and capricious.

    Issue(s)

    Whether the Zoning Board of Appeals acted arbitrarily and capriciously in denying a rear-yard variance for a community residence, considering the conceded necessity of demolishing the building absent the variance and the argument of self-created hardship.

    Holding

    Yes, because the Board’s denial of the variance was arbitrary and capricious, as no valid public purpose was served by the denial that outweighed the significant injury to the property owner (requiring removal of the existing building). The Court found the stated reasons for denial insufficient in light of the admissions regarding the necessity of demolition and the legal status of the community residence as a family unit.

    Court’s Reasoning

    The Court of Appeals focused on the Village Attorney’s concession that the building would have to be torn down without the variance and that HDS had unsuccessfully sought to purchase additional land. Because the Board’s answer did not deny these specific allegations, they were deemed admitted under CPLR 3018(a). The Court then addressed the Board’s reasons for denying the variance: aesthetic concerns regarding the turn-of-the-century house and stone fence, insufficient parking, and self-created hardship. The Court dismissed the aesthetic concerns, stating it was capricious to require removal of the house to retain its charm. Regarding parking, the Court noted HDS offered to provide whatever the Board required, and the zoning ordinance did not require more parking spaces than HDS proposed for a family unit, as the community residence was legally defined under Mental Hygiene Law § 41.34(f). The Court then addressed the self-created hardship argument, referencing Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105, 108, stating: “A finding of self-created hardship normally should not in and of itself justify denial of an application for an area variance. The basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner.” The Court found no valid public purpose would be served by denying the variance and requiring the building’s removal. Therefore, the denial was arbitrary and capricious. The court emphasized that the severity of the hardship if the variance was denied (demolition of the building) weighed heavily against the relatively minor impact of granting the variance.

  • Matter of Cowan v Kern, 41 N.Y.2d 591 (1977): Area Variances and Aesthetic Considerations

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

    A Zoning Board of Appeals may not deny an area variance based solely on aesthetic considerations unless specifically authorized by local law with sufficient guidance to prevent arbitrariness.

    Summary

    Cowan, owner of a substandard lot, sought an area variance to build a narrow residence. The Board of Zoning Appeals denied the variance, citing aesthetic concerns that the proposed structure would be an “aesthetic abomination” and depreciate property values. The New York Court of Appeals reversed, holding that while aesthetic considerations are a valid public purpose, the Board lacked specific authority under local law to deny an area variance solely on aesthetic grounds. The court emphasized the need for delegated authority and guidance to prevent arbitrary decisions.

    Facts

    Cowan owned a corner lot measuring 100 feet by 47 feet. Zoning ordinances required a 50-foot frontage. The lot was created when a corporation, in which Cowan had an interest, subdivided a larger plot into three lots. Two of the lots met zoning requirements, while Cowan’s did not. Cowan sought to build a 20-foot wide residence. Other undersized lots with residences existed nearby.

    Procedural History

    The Board of Zoning Appeals denied Cowan’s request for an area variance. Supreme Court sustained the Board’s decision. The Appellate Division reversed, finding the denial arbitrary. The New York Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether a Zoning Board of Appeals may deny an area variance based solely on aesthetic considerations, absent specific authorization in local law.

    Holding

    No, because a Zoning Board of Appeals must have specific authorization from local law to deny an area variance based solely on aesthetics; absent such authorization, the denial is improper.

    Court’s Reasoning

    The court acknowledged that aesthetic considerations can be a valid public purpose for land use regulation, citing Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 489-490. However, it emphasized that the public interest in aesthetic regulation is not as strong as in cases involving public safety. The court stated that the Zoning Board of Appeals was “without power to deny an area variance on aesthetic grounds” because it lacked specific authorization from local law. The court reasoned that zoning boards can only exercise authority properly delegated to them. Since the village ordinance (section 16-23) did not provide the necessary authority or guidance, the denial of the variance was improper. The court also noted the apparent incongruity of denying a variance based on aesthetics when the proposed use was otherwise permitted. The court cited Matter of Tandem Holding Corp. v Board of Zoning Appeals of Town of Hempstead, 43 NY2d 801, 802, reinforcing the need for specific authorization to prevent arbitrariness.

  • Conley v. Town of Brookhaven Zoning Board of Appeals, 40 N.Y.2d 309 (1976): Area Variances and Practical Difficulties

    Conley v. Town of Brookhaven Zoning Board of Appeals, 40 N.Y.2d 309 (1976)

    A zoning board’s decision to grant an area variance will be upheld if it has a rational basis supported by substantial evidence showing that strict compliance with the zoning ordinance would result in practical difficulties for the landowner.

    Summary

    Dean and Judith De Poy sought an area variance to subdivide their property, which met minimum area requirements but lacked the required frontage and side yard setbacks. Neighboring landowners objected, citing environmental concerns and increased density. The Zoning Board of Appeals granted the variance, citing no adverse effect on property values, no obligation to maintain the wooded area, no substantial increase in density, and financial hardship. The New York Court of Appeals affirmed, holding that the board’s decision was supported by substantial evidence and had a rational basis. The court emphasized that financial hardship, even if self-imposed, is a factor the board can consider. The court deferred to the zoning board’s determination, finding no abuse of discretion.

    Facts

    The De Poys owned a 62,660 square foot parcel in a residential zone requiring 30,000 square foot minimum lot size, 150-foot frontage, and 60 total feet side yard. They purchased the property knowing the zoning requirements. They sought a variance to create a second lot of 30,000 square feet in the rear of the property to build a new residence, necessitating an access road along the north side. This road would leave the front lot with a frontage of 98.43 feet and a side yard setback of 30 feet. While both proposed lots met minimum area, the front lot lacked required frontage and side yard setback.

    Procedural History

    Neighboring property owners commenced a proceeding to annul the Zoning Board’s determination. Special Term denied the petition. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal to determine if the zoning board abused its discretion.

    Issue(s)

    Whether the Zoning Board of Appeals abused its discretion, as a matter of law, in granting the De Poys’ application for an area variance.

    Holding

    Yes, because the Board’s determination was supported by substantial evidence in the record showing that the De Poys faced practical difficulties in conforming to the strict letter of the zoning ordinance.

    Court’s Reasoning

    The court distinguished between area and use variances, noting that the proof needed to support an area variance is less compelling. The court stated, “The oft-stated standard by which a request for an area variance is to be measured is whether strict compliance with the zoning ordinance will result in practical difficulties.” The court recognized the zoning board’s discretion and limited judicial review to instances of illegality, arbitrariness, or abuse of discretion. The court found substantial evidence supporting the board’s conclusion that constructing an additional residence meeting area requirements would not substantially increase density or adversely affect the neighborhood’s character, noting that surrounding homes were on smaller plots. The court addressed the neighbors’ aesthetic concerns, stating that the De Poys had no legal obligation to maintain their land for their neighbors’ benefit. While the hardship was self-imposed, the court stated that “the fact that the hardship was self-imposed does not preclude the zoning board from granting an area variance.” The court also noted the potential waste of land resulting from denying the variance, conflicting with the goal of efficient land use, quoting Berenson v. Town of New Castle, 38 NY2d 102, 109: “The fundamental purpose of all zoning ordinances is to provide for the development of a balanced community which will make efficient use of the land available in the community.” The court reiterated its limited role in substituting its judgment for that of the local zoning board when substantial evidence supports the board’s determination.