New York Law Review

Tag: Board of Standards and Appeals

  • New York Botanical Garden v. Board of Standards and Appeals, 91 N.Y.2d 418 (1998): Defining ‘Accessory Use’ in Zoning Law

    New York Botanical Garden v. Board of Standards and Appeals, 91 N.Y.2d 418 (1998)

    A zoning board’s determination of what constitutes an accessory use is entitled to deference, and will be upheld if it is rational, reasonable, and consistent with the zoning statute, especially when based on the board’s expertise in land use and planning.

    Summary

    The New York Botanical Garden challenged the Board of Standards and Appeals’ (BSA) decision to classify Fordham University’s proposed radio station and 480-foot tower as an accessory use on its campus. The Botanical Garden argued that the tower was not incidental to the university’s educational purpose. The Court of Appeals upheld the BSA’s determination, emphasizing that the BSA’s interpretation of zoning regulations is entitled to deference and that the operation of a radio station is common for universities. The court also noted the BSA’s expert consideration of relevant factors and FCC regulations, finding the determination reasonable and supported by evidence.

    Facts

    Fordham University sought a permit to construct a new broadcasting facility and 480-foot radio tower on its Rose Hill campus. The University operates WFUV, a noncommercial educational radio station affiliated with National Public Radio. The New York City Department of Buildings (DOB) issued a permit, but the New York Botanical Garden, adjacent to the campus, objected. The DOB Commissioner determined the radio station and tower constituted an accessory use. The Botanical Garden appealed, arguing the tower wasn’t an accessory use. Construction had already begun, costing Fordham $800,000. The BSA affirmed the Commissioner’s determination.

    Procedural History

    The Botanical Garden appealed the DOB Commissioner’s determination to the Board of Standards and Appeals (BSA). The BSA affirmed the Commissioner’s decision. The Botanical Garden then commenced an Article 78 proceeding to annul the BSA’s determination in New York State Supreme Court, which dismissed the petition. The Botanical Garden appealed to the Appellate Division, which affirmed. The Botanical Garden then appealed to the New York Court of Appeals, which granted leave to appeal.

    Issue(s)

    Whether the BSA’s determination that Fordham University’s radio station and 480-foot tower constitute an accessory use within the meaning of New York City Zoning Resolution § 12-10 was arbitrary or capricious.

    Holding

    Yes, because the BSA’s interpretation of the Zoning Resolution was neither irrational, unreasonable, nor inconsistent with the governing statute, and was supported by substantial evidence.

    Court’s Reasoning

    The Court of Appeals emphasized that the BSA, comprised of land use experts, is entitled to deference in interpreting the Zoning Resolution. The court cited Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545, noting that such interpretation should be upheld unless it is irrational, unreasonable, or inconsistent with the governing statute. The court analyzed Zoning Resolution § 12-10, which defines an accessory use as one that is conducted on the same zoning lot as the principal use, is clearly incidental to and customarily found in connection with the principal use, and is under the same ownership. The court distinguished this case from Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, explaining that the BSA’s determination involved a fact-based inquiry into whether a radio station of this size and power is customarily found on a university campus. Fordham presented evidence that many university radio stations operate at similar power levels and that the station is integral to the university’s communications curriculum. The court also noted that FCC regulations necessitated the new tower. The Court stated, “Whether a proposed accessory use is clearly incidental to and customarily found in connection with the principal use depends on an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question.” The court also distinguished this case from Matter of Presnell v Leslie, 3 NY2d 384, stating that that case concerned “a personal hobby carried on as an incident to a residential premises, but with a legally recognized institutional use that is integral to the educational mission of this University.”

  • Bella Vista Apartment Co. v. Bennett, 89 N.Y.2d 465 (1996): Transfer of Development Rights After a Use Variance

    Bella Vista Apartment Co. v. Bennett, 89 N.Y.2d 465 (1996)

    When a property has received a commercial use variance, its surplus development rights cannot be transferred to an adjacent property for residential use without further review and approval by the Board of Standards and Appeals (BSA).

    Summary

    Bella Vista, a real estate developer, sought to build a 14-story apartment building but lacked the necessary floor area ratio (FAR). It purchased development rights from an adjacent lot that had a commercial use variance to build a movie theater. The New York City Building Department rejected Bella Vista’s application to combine these rights, and the BSA confirmed this decision. The New York Court of Appeals reversed the lower courts, holding that the development rights associated with a property benefitting from a commercial use variance cannot be transferred to another property without BSA approval. This prevents undermining the original basis for granting the variance.

    Facts

    Bella Vista owned Lot 186, zoned for residential use, but lacked the required FAR to build a 14-story apartment building. The adjacent Lot 185 had been granted a commercial use variance to operate a movie theater. Bella Vista purchased 120,000 square feet of development rights, including 30,000 square feet of air rights, from the owner of Lot 185 to meet the FAR requirements. Bella Vista sought a building permit based on this combination of development rights, without seeking separate BSA approval.

    Procedural History

    The New York City Building Department rejected Bella Vista’s building permit application. The BSA affirmed the Building Department’s decision. Bella Vista filed an Article 78 petition challenging the BSA’s determination. The Supreme Court granted the petition, directing the issuance of the permit. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division, dismissing the petition.

    Issue(s)

    Whether the excess residential use development rights of a property that benefits from a commercial use variance can be transferred to and combined with an adjacent property for an as-of-right use by the latter, without discrete BSA approval.

    Holding

    No, because allowing such a transfer without BSA approval would undermine the findings required for the original variance and potentially circumvent proper land use regulation.

    Court’s Reasoning

    The Court of Appeals reasoned that the BSA must make specific findings before granting a variance, including unique physical conditions, inability to realize a reasonable return under existing uses, and that the variance will not alter the neighborhood’s character or harm the public welfare. Allowing the transfer of development rights from Lot 185, which had a variance based on these findings, to Lot 186 without further BSA review would undermine the original basis for the variance. As the Court noted, “if a landowner retains the bonus option to sell surplus development rights as they existed before the use variance is acquired, the variance might not have been the ‘minimum variance necessary to afford relief,’ and the lack of any ‘reasonable possibility’ of a ‘reasonable return’ is retrospectively placed in considerable doubt.” The court distinguished Matter of Clearview Gardens Pool Club v Foley, emphasizing that Clearview involved a simple reversion to a conforming use, not a complex combination of rights that could circumvent zoning regulations. The court emphasized the importance of the BSA retaining review power to preserve coherent land use determinations and adherence to the zoning plan. The Court concluded that the BSA and Building Department’s determinations were rational and within their justifiable range of discretion. Allowing such combinations of rights could enable variance holders to manipulate and augment the benefits of their variances, contradicting the principles of zoning and land use planning. The Court stated, “The precedent should not be expanded to allow landowners to garner commercial use by variance and then, by resourceful fusions, leverage assertedly residual residential development rights, without discrete BSA approval. The inherent contradictions and dangers to effective land use planning regulation and application dictate otherwise.”

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

    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.