New York Law Review

Tag: Self-Created Hardship

  • 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.

  • Doherty v. Zoning Bd. of Appeals of Village of Sea Cliff, 28 N.Y.2d 304 (1971): Variance Denial for Self-Created Hardship

    Doherty v. Zoning Bd. of Appeals of Village of Sea Cliff, 28 N.Y.2d 304 (1971)

    A zoning board is not required to grant a variance based solely on economic loss when the hardship was self-created by the property owner after the enactment of the zoning ordinance.

    Summary

    Doherty sought a variance to build on a substandard lot he acquired after a zoning ordinance was in place. The ordinance required 100 feet of frontage, while Doherty’s lot had only 42.40 feet, though it exceeded the square footage requirement. The Board of Zoning Appeals denied the variance, but the lower court annulled that decision, citing economic hardship. The New York Court of Appeals reversed, holding that the board was not required to grant a variance based on economic loss alone, especially when the hardship was self-created by purchasing the lot after the zoning ordinance was in effect. The court emphasized that the burden of proof lies with the party seeking the variance.

    Facts

    Doherty purchased a substandard lot in a Residence B zone in the Village of Sea Cliff in 1965. The lot had only 42.40 feet of frontage, well below the 100-foot minimum required by the village’s 1960 zoning ordinance. The lot size exceeded the square footage requirement. The prior owner, Dobsovitz, owned the larger lot when the ordinance was adopted in 1960 but created the substandard lot by deed in 1965.

    Procedural History

    Doherty applied for a variance, which was denied by the Board of Zoning Appeals. The Special Term annulled the board’s determination. The Appellate Division affirmed the Special Term’s decision, with a dissenting opinion. The New York Court of Appeals then reversed the Appellate Division’s order.

    Issue(s)

    Whether a zoning board is required to grant a variance when the property owner demonstrates economic injury if the variance is not granted, even if the nonconformity was self-created after the enactment of the zoning ordinance.

    Holding

    No, because the economic loss claimed is not controlling when the hardship was self-created. The board is not required to grant the variance on such a showing, and its failure to do so is neither arbitrary nor unlawful.

    Court’s Reasoning

    The court distinguished its earlier decision in Matter of Fulling v. Palumbo, clarifying that Fulling does not mandate variances in all financial loss cases, particularly when the hardship is self-created. The court cited Contino v. Incorporated Vil. of Hempstead and Matter of 113 Hillside Ave. Corp. v. Zaino, which emphasized that self-created hardships do not automatically entitle an owner to a variance. The court noted the land had adequate area, but was well under the minimum front footage and was also formerly part of a larger single residential plat. The court referenced Matter of Weinstein v. Planning Bd. of Vil. of Great Neck (21 Y 2d 1001) as precedent. The court also pointed out that the petitioner did not clearly show what he paid for the parcel. The court stated that requiring the board to prove that public health, safety, and welfare would be adversely affected by granting the variance would impose an extremely heavy burden. The court reasoned: “If the general limitations on frontage and size of lots serve the public welfare and are good as a matter of law, the burden of showing the need for variance ought to be on him who seeks it. When the public authority shows the general validity of the ordinance, it ought not be required to show it again in each case in which variance is denied.” The court concluded that the board acted within its legal competence in refusing to grant the variance and that the petitioner had not demonstrated that the board’s determination was arbitrary.

  • 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.