New York Law Review

Tag: Use 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.

  • Dreikausen v. Zoning Board of Appeals, 98 N.Y.2d 165 (2002): Mootness in Zoning Disputes & Failure to Seek Preliminary Injunction

    98 N.Y.2d 165 (2002)

    An appeal challenging a zoning board’s decision is typically moot when the project is substantially completed, and the challenger failed to seek a preliminary injunction to prevent construction during the litigation.

    Summary

    This case addresses the issue of mootness in the context of a zoning dispute. Neighboring homeowners challenged a zoning board’s grant of a use variance allowing the construction of condominiums. However, the homeowners failed to obtain a preliminary injunction to halt construction. By the time the case reached the Court of Appeals, the project was substantially complete. The Court held that the appeal was moot because the homeowners’ failure to seek preliminary injunctive relief allowed the project to proceed, making it difficult to undo the completed construction. The court emphasized that it was not retreating from the requirement that landowners seeking variances must demonstrate financial hardship with “dollars and cents” proof.

    Facts

    Keystone Design and Construction Corp. contracted to buy waterfront property intending to build condominiums, later transferring the contract to Bay Club of Long Beach, Inc. The Zoning Board of Appeals of Long Beach (the Board) initially denied Keystone’s application for a use variance. Bay Club then submitted a scaled-back proposal, which the Board approved, granting both a use and a rear yard area variance. The plaintiff homeowners, who lived nearby, filed an Article 78 proceeding challenging the Board’s decision but did not seek a preliminary injunction to stop the construction. During the litigation, Bay Club began construction, demolishing the existing marina and starting foundation work.

    Procedural History

    The homeowners filed an Article 78 proceeding in Supreme Court, which dismissed the petition. The homeowners then appealed to the Appellate Division and sought injunctive relief, which was denied. The Appellate Division affirmed the Supreme Court’s dismissal. The dissenting justice argued that Bay Club had failed to provide sufficient financial evidence to justify the variance. The New York Court of Appeals granted leave to appeal. By the time the Court of Appeals heard the case, 12 of the 20 condominium units were fully constructed.

    Issue(s)

    Whether the appeal is moot, considering the substantial completion of the condominium project and the homeowners’ failure to seek a preliminary injunction to prevent construction during the pendency of the litigation.

    Holding

    Yes, the appeal is moot because the homeowners failed to seek preliminary injunctive relief to prevent construction, and the project was substantially completed by the time the case reached the Court of Appeals.

    Court’s Reasoning

    The Court recognized that while relief theoretically remains available even after project completion (i.e., structures can be destroyed), a “race to completion cannot be determinative” in frustrating administrative review. The Court identified several factors for evaluating mootness claims, with the failure to seek preliminary injunctive relief being chief among them. The Court noted that the homeowners did not seek a temporary restraining order or preliminary injunction while the case was before the Supreme Court. They only requested injunctive relief after the Supreme Court upheld the variance and substantial construction had already occurred. The Court distinguished the case from situations where a party proceeded in bad faith or where novel issues or public interests (e.g., environmental concerns) warranted continued review. The Court stated, “Recognizing that a race to completion cannot be determinative, and cannot frustrate appropriate administrative review,  courts have found several factors significant in evaluating claims of mootness. Chief among them has been a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation.” The Court emphasized that its decision did not signal a retreat from the requirement of “dollars and cents” proof to demonstrate financial hardship for obtaining a variance.

  • 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.”

  • Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364 (1993): Public Utility Variance Standard for Cell Tower Siting

    Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364 (1993)

    A cellular telephone company qualifies as a public utility, and therefore, is subject to a less stringent standard than unnecessary hardship when seeking a use variance for the placement of a cell tower, requiring only a showing of public necessity.

    Summary

    Cellular Telephone Company sought a use variance to construct a cell site in an educational district where such use was not permitted. The Zoning Board denied the variance, applying the traditional ‘unnecessary hardship’ test. The Court of Appeals held that cellular phone companies are public utilities, and therefore, the appropriate test is whether the variance is a public necessity. The court found that the company met this standard by demonstrating the need to eliminate gaps in service, and the denial by the Zoning Board was without rational basis.

    Facts

    Cellular One, a licensed cellular telephone service provider, leased land from Children’s Village to erect a cell site to expand service and fill gaps in its coverage area. The proposed site included nine antennas attached to an existing water tower and a modular building to house computer equipment. The location was in an Educational District (E Zone) where the cell site was not a permitted use. The company experienced call interruptions and static in the area due to insufficient antenna coverage.

    Procedural History

    Cellular One applied for a use variance, which the Dobbs Ferry Zoning Board of Appeals denied. Cellular One then filed an Article 78 proceeding challenging the Board’s decision. The Supreme Court granted the petition, directing the Board to issue the variance. The Appellate Division affirmed, holding that Cellular One was a public utility, and the Board’s decision was arbitrary. The Zoning Board appealed to the New York Court of Appeals.

    Issue(s)

    Whether a cellular telephone company qualifies as a public utility such that its application for a use variance to construct a cell site is subject to the public necessity standard rather than the traditional unnecessary hardship standard.

    Holding

    Yes, because a cellular telephone company provides essential services to the public and operates under governmental regulation, it qualifies as a public utility and is subject to the public necessity standard for use variances.

    Court’s Reasoning

    The Court of Appeals reasoned that a public utility is a private business providing essential services subject to governmental regulation. The characteristics of a public utility include the essential nature of the service, operation under a franchise subject to public regulation, and logistical challenges in providing the service directly to users. Because Cellular One is licensed by the FCC and PSC, provides an essential communication service, and faces logistical challenges in delivering its services, it meets the definition of a public utility.

    The Court applied the precedent set in Matter of Consolidated Edison Co. v. Hoffman, which established a ‘public utility’ exception to the unnecessary hardship test. This exception requires the utility to show that the modification is a public necessity to render safe and adequate service, and there are compelling reasons to modify the plant rather than use alternative sources. The Court noted that “where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced.” (Matter of Consolidated Edison, 43 N.Y.2d 598, 611).

    The Court rejected the Zoning Board’s argument that Cellular One failed to establish entitlement to a variance. The Court found that the cell site would have a negligible impact on the surrounding neighborhood and that Cellular One demonstrated a public necessity by showing that the site would eliminate gaps in its service area. Because the Board’s determination lacked a rational basis, its denial of the variance was an abuse of discretion.

  • Barry Iselin & Assoc. v. Village of Old Brookville, 41 N.Y.2d 103 (1976): Establishing Hardship for Zoning Use Changes

    Barry Iselin & Assoc. v. Village of Old Brookville, 41 N.Y.2d 103 (1976)

    To rezone property, a landowner must demonstrate that the land cannot yield a reasonable return as currently zoned, that their hardship is unique, and that the proposed use won’t alter the locality’s essential character.

    Summary

    Barry Iselin & Associates sought to rezone a 4.271-acre parcel from residential to business use, arguing the area had become commercial and the residential zoning was unconstitutional. The trial court dismissed the claim, but the Appellate Division reversed, finding the denial arbitrary. The New York Court of Appeals reversed, holding that the plaintiff failed to prove the property could not yield a reasonable return under the existing residential zoning. The court emphasized the higher standard of proof required for use variances versus area variances and underscored the presumption of constitutionality afforded to zoning ordinances.

    Facts

    Barry Iselin & Associates owned approximately 17 acres of land, a portion of which (4.271 acres) was the subject of the rezoning request. The property had been zoned for residential use since 1930. The plaintiff argued that the area had become predominantly commercial, rendering the property unsuitable for residential development. The plaintiff had previously sold portions of their land for commercial purposes, including a shopping center and a gas station near the subject property.

    Procedural History

    The plaintiff initially sought a zoning change from the town, which was denied. The plaintiff then filed suit in the Supreme Court, which dismissed the complaint after trial. The Appellate Division reversed the Supreme Court’s decision, declaring the existing zoning unconstitutional as applied to the plaintiff’s property. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the plaintiff met the burden of proving that the residential zoning of the subject property was unconstitutional because the property could not yield a reasonable return under the existing zoning, the plight was due to unique circumstances, and the rezoning would not alter the essential character of the locality.

    Holding

    No, because the plaintiff failed to demonstrate that the property could not yield a reasonable return if used for residential purposes, as required to overcome the presumption of constitutionality afforded to zoning ordinances.

    Court’s Reasoning

    The Court of Appeals distinguished between area variances and use variances, noting that a higher standard of proof is required for the latter. For a use variance or rezoning, the owner must show: (1) the land cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) the plight of the owner is due to unique circumstances and not to general neighborhood conditions; and (3) the use authorized by the variance will not alter the essential character of the locality, citing Matter of Otto v. Steinhilber, 282 N.Y. 71, 76. The court found that the plaintiff’s evidence failed to demonstrate that the property could not yield a reasonable return if developed residentially. The court emphasized that a slight or even significant difference in profit from commercial use does not automatically establish confiscation. The court also addressed the argument of spot zoning, stating that the zoning was part of a comprehensive plan. It reiterated the presumption of constitutionality afforded to zoning ordinances, stating, “Upon parties who attack an ordinance * * * rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts.” The court found that the plaintiff had not met this burden.

  • 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.