New York Law Review

Tag: area variance

  • Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971): Area Variances and Self-Imposed Hardship in Zoning

    Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971)

    When considering variances from zoning regulations concerning off-street parking, courts apply the rules for area variances, but self-imposed hardships can still be a factor in denying a variance if a legitimate public purpose is served by the zoning restriction.

    Summary

    Overhill Building Company sought a variance to convert parking spaces into office space, which would increase a pre-existing nonconforming use concerning off-street parking. The Board of Appeals denied the variance, citing an attempt to expand a nonconforming use and self-created hardship. The Court of Appeals reversed the lower court’s decision to grant the variance. While the court treated the variance as an area variance, it held that the Board of Appeals did not abuse its discretion in denying the variance because the zoning authorities demonstrated a legitimate public purpose (alleviating traffic congestion) was served by the parking restrictions, and the property owner had not been deprived of all reasonable use of the property.

    Facts

    Overhill Building Company owned a building in a Business A zone of Scarsdale, partially used for apartments and partially for office space. A 1959 zoning amendment required one off-street parking space for every 150 square feet of floor area in buildings constructed before November 1, 1959. This requirement translated to 306 parking spaces for Overhill’s building, but the company maintained only 117, creating a pre-existing nonconforming use. In 1970, Overhill sought to convert 1,850 square feet of parking space into office space, which would eliminate 12 parking spaces and require even more spaces under the ordinance.

    Procedural History

    The Village Building Inspector denied Overhill’s building permit application. The Board of Appeals denied Overhill’s application for a variance. Overhill commenced an Article 78 proceeding, and Special Term annulled the Board’s determination, ordering the permit issued. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a variance request involving off-street parking requirements in a business zone should be treated as an area variance or a use variance.
    2. Whether the Board of Appeals abused its discretion by denying the variance, considering the property owner’s economic injury and the purpose of the zoning ordinance.

    Holding

    1. Yes, because 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.
    2. No, because the zoning authorities demonstrated a legitimate public purpose was to be served by the restrictions placed on respondent’s property.

    Court’s Reasoning

    The court determined that the variance should be treated as an area variance because the intended use (additional office space) was permitted in the business zone. Area variances are evaluated under the standard set in Matter of Fulling v. Palumbo, requiring a showing of significant economic injury to the property owner. If such injury is shown, the zoning authorities must demonstrate that the zoning standard is justified by public health, safety, and welfare. However, the court clarified that this standard does not negate the principle that self-imposed hardships can justify denying a variance.

    The court distinguished Fulling, where all surrounding properties were also nonconforming and the ordinance aimed at neighborhood beautification. Here, the ordinance served a legitimate public purpose: alleviating traffic congestion and promoting public safety. Even though surrounding properties were nonconforming, this purpose justified the parking restrictions. The court found that the Board of Appeals could reasonably determine that increased business space would exacerbate traffic problems. Because Overhill only demonstrated financial loss, not a deprivation of all reasonable use of the property, the Board’s decision was not arbitrary.

    The court addressed Overhill’s argument that the zoning ordinance was facially unconstitutional, finding that an Article 78 proceeding was not the proper vehicle to challenge the constitutionality of a legislative enactment. The proper remedy would be a declaratory judgment action.

  • 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258 (1970): Self-Created Hardship and Zoning Variances

    113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258 (1970)

    A zoning board may deny an area variance when the substandard condition of a lot results from the owner’s own decision to subdivide property in a way that creates nonconforming plots, especially when granting the variance would adversely affect the neighborhood.

    Summary

    113 Hillside Avenue Corporation sought variances to build on a substandard lot created by its own subdivision. The New York Court of Appeals reversed the lower court’s decision to grant the variances, holding that the zoning board’s denial was proper. The court emphasized that self-created hardship is a valid reason to deny a variance, especially when granting it would negatively impact the character of the surrounding area. The court distinguished this case from situations where the hardship was not self-imposed and the neighborhood already contained numerous substandard lots. The decision reinforces the principle that property owners cannot create their own zoning problems and then expect to be excused from compliance.

    Facts

    113 Hillside Avenue Corporation owned a vacant lot (Lot 14) in a residential zone with minimum area, frontage, and yard depth requirements. The lot exceeded the area requirement but failed to meet the frontage and yard depth requirements due to its “pot handle” shape. The corporation’s vendor had subdivided a larger conforming parcel into three lots, selling two lots (including the substandard Lot 14) to the corporation and one to a third party. The corporation built on and sold the other lot it purchased (Lot 15), which conformed to zoning requirements. After selling Lot 15, the village revoked the building permit for Lot 14.

    Procedural History

    The corporation initially sought a declaratory judgment that the permit revocation was improper, but the Appellate Division found the permit invalid because the application didn’t meet ordinance requirements. The corporation then applied for variances, which were initially granted by the lower court but reversed and remanded by the Appellate Division for reconsideration in light of Matter of Fulling v. Palumbo. After a new hearing, the Board of Appeals denied the variances, which was again annulled by the lower court and reversed by the New York Court of Appeals.

    Issue(s)

    Whether a zoning board’s denial of an area variance is proper when the substandard condition of the lot resulted from the owner’s own subdivision and granting the variance would adversely affect the neighborhood.

    Holding

    No, because the substandard condition was self-created by the property owner’s subdivision of a larger parcel, and granting the variance would negatively impact the character of the neighborhood.

    Court’s Reasoning

    The court held that zoning boards can deny area variances when the substandard condition stems from the owner’s decision to subdivide the property, creating nonconforming plots. It emphasized that Matter of Fulling v. Palumbo did not alter this principle. The court cited Contino v. Incorporated Vil. of Hempstead, where it reversed the Appellate Division based on a dissenting opinion that highlighted the unreasonableness of granting variances for self-created substandard plots. The court found that granting the variances would adversely affect the neighborhood, as there were no similar substandard lots in the area. Distinguishing this case from Fulling, the court noted that in Fulling, the surrounding lots were already substandard, so granting the variance would not alter the character of the area. The court stated that the petitioner failed to demonstrate that the hardship deprived it of any reasonable use of the property, amounting to a taking. The court clarified that while financial hardship was controlling in Fulling, it does not automatically require a variance, especially when the hardship is self-created. The court emphasized a municipality’s “legitimate interest in maintaining and preserving the character of a particular area”. In conclusion, the court found ample basis for the zoning board’s determination to deny the variances.

  • Fulling v. Palumbo, 21 N.Y.2d 30 (1967): Area Zoning Variance When No Public Benefit

    Fulling v. Palumbo, 21 N.Y.2d 30 (1967)

    When a property owner will suffer significant economic injury from an area standard zoning ordinance, the ordinance can only be justified by demonstrating that the public health, safety, and welfare will be served by upholding the ordinance and denying the variance.

    Summary

    Fulling sought an area variance to build on a 9,500 square foot lot in Bronxville, New York, where the zoning ordinance required 12,000 square feet. The Zoning Board of Appeals denied the variance, and the lower court upheld that decision. The New York Court of Appeals reversed, holding that the denial was improper because the Board failed to demonstrate any public benefit from denying the variance, especially considering the surrounding area largely consisted of substandard lots. The court established that significant economic injury to the property owner must be balanced against a demonstrated public benefit derived from strict enforcement of the zoning regulation.

    Facts

    Fulling owned a 9,500 square foot vacant lot (Lot 31) in Bronxville, NY, which he had purchased in 1948. He also owned an adjacent improved lot (Lot 33). Prior to 1938, both lots conformed to zoning regulations. In 1938, the area was rezoned to require 10,000 square feet, but a saving clause exempted separately owned lots. Fulling’s common ownership after 1948 nullified the saving clause for these two lots. In 1953, the area requirement was increased to 12,000 square feet. Fulling contracted to sell Lot 31, contingent upon the buyer obtaining an area variance and a building permit.

    Procedural History

    Fulling applied for an area variance, which the Zoning Board of Appeals denied. Special Term (lower court) upheld the Board’s decision. Fulling appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Zoning Board of Appeals abused its discretion in denying the application for an area variance?
    2. Whether the zoning ordinance is unconstitutional as applied to Fulling’s property?

    Holding

    1. Yes, because the Zoning Board failed to demonstrate any legitimate public interest served by restricting the use of Fulling’s property.
    2. Yes, effectively, because the absence of demonstrated public benefit, coupled with the significant economic injury to the property owner, renders the ordinance unconstitutional as applied in this specific instance.

    Court’s Reasoning

    The court reasoned that minimum area zoning ordinances are not per se unconstitutional but can be unconstitutional as applied to a particular property. The court stated, “where the property owner will suffer significant economic injury by the application of an area standard ordinance, that standard can be justified only by a showing that the public health, safety and welfare will be served by upholding the application of the standard and denying the variance.”

    The court found the Zoning Board’s denial was improper because it was not based on any harm to the purposes of the zoning ordinance. The court noted the surrounding area consisted mostly of substandard lots, creating an “island” of more restrictive zoning. The court emphasized the lack of any reasonable argument that granting the variance would affect the character of the area or strain municipal services.

    The court articulated a two-step analysis: first, the municipality must demonstrate a legitimate public interest served by the restriction. Only then can the property owner be required to demonstrate that the hardship is so severe as to deprive them of any reasonable use of the property, effectively amounting to a taking. Here, because the municipality failed to demonstrate any legitimate purpose, Fulling was entitled to the variance.

    The court reversed the lower court’s order and remanded the case for proceedings consistent with its opinion.

  • Eaton v. Sweeny, 257 N.Y.2d 176 (1969): Distinguishing Area Variances from Use Variances

    Eaton v. Sweeny, 257 N.Y.2d 176 (1969)

    An area variance, which does not alter the fundamental character of a zoned district, requires a less stringent showing of hardship than a use variance, which permits a use not allowed by zoning regulations.

    Summary

    Eaton sought a variance to rent out a gatehouse on their property, which violated a zoning ordinance. The Board of Zoning Appeals denied the variance, and the lower courts initially affirmed. The New York Court of Appeals distinguished between area and use variances, holding that because the variance sought was an area variance (allowing residential use in an already residential zone), the Eatons only needed to demonstrate practical difficulties, not the more stringent “special hardship” required for use variances. The court found that the Eatons had demonstrated sufficient practical difficulties justifying the variance.

    Facts

    The Eatons owned a property in Brookville, NY, with three structures: a main dwelling, a gatehouse, and a guest house. The gatehouse had been used as a residence since before the 1935 zoning ordinance. The zoning ordinance initially permitted accessory buildings, but later amendments restricted their use as residences, except for full-time employees. The Eatons rented out both the gatehouse and the guest house. The Village argued this violated the zoning ordinance.

    Procedural History

    The Eatons appealed the Building Inspector’s ruling to the Board of Zoning Appeals, arguing for a valid nonconforming use and seeking a variance. The Board denied the variance. Special Term affirmed the Board’s decision. The Appellate Division upheld the denial of a variance for the guest house but granted a variance for the gatehouse. Both the Board and the Eatons appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Eatons needed to demonstrate “special hardship” to obtain a variance for the gatehouse, considering the zoning ordinance, or whether demonstrating “practical difficulties” was sufficient.

    Holding

    No, because the requested variance was an area variance, the Eatons only needed to demonstrate practical difficulties, not the more stringent “special hardship” required for use variances.

    Court’s Reasoning

    The Court distinguished between use variances and area variances. Use variances allow a use not permitted by the zoning regulations, requiring a showing of “special hardship.” Area variances, which do not change the character of the zoned district, only require a showing of “practical difficulties.” The court reasoned that because the Eatons sought to continue a residential use in an area already zoned for residential use, they were seeking an area variance. The court found that the Eatons demonstrated practical difficulties by showing that: (1) the gatehouse was designed and used for separate residential occupancy before the ordinance; (2) it represented a substantial investment and generated income; (3) the Eatons purchased the property believing they could validly rent the gatehouse; (4) there were limited alternative uses for the gatehouse; and (5) the only other permitted use of the gatehouse would be for servants, which are not typically provided separate living quarters today. The court noted the board offered no evidence of adverse effects or countervailing public interests. The court also rejected the argument that the Eatons’ difficulties were self-imposed, noting the gatehouse predated the zoning ordinance and the initial permitted use by a gardener. The court stated granting the variance wouldn’t “really change the essential residential character of the neighborhood”. The Court emphasized the need to balance community interests with the owner’s right to reasonable use of their property.