New York Law Review

Tag: variance

  • Nilsson v. Department of Environmental Protection, 8 N.Y.3d 398 (2007): Limits on DEP’s Variance Authority in Watershed Regulations

    Nilsson v. Department of Environmental Protection, 8 N.Y.3d 398 (2007)

    A New York City Department of Environmental Protection (DEP) variance decision is arbitrary and capricious if it demands mitigation measures outside its regulatory authority, but DEP can reasonably request information about contiguous property holdings when assessing hardship.

    Summary

    Nilsson sought a variance from regulations limiting fill for a subsurface sewage treatment system (SSTS) on his property within the NYC Watershed. DEP denied the variance, citing inadequate mitigation of stormwater runoff from the proposed residence and Nilsson’s failure to provide information on other real estate holdings. The New York Court of Appeals held that DEP acted improperly by requiring mitigation measures for stormwater runoff because these measures were outside the scope of its regulatory authority. However, the Court also stated that DEP could reasonably request information about Nilsson’s contiguous property holdings. The case was remitted for reconsideration of the hardship claim.

    Facts

    Nilsson applied for a permit to build an SSTS on vacant land in Putnam County, within the NYC Watershed. The application was denied because it exceeded fill limits set by DEP-PCDOH standards. Nilsson sought a variance, arguing compliance was impossible due to shallow soil and that denial would cause substantial hardship. DEP requested mitigation measures for potential contamination and stormwater runoff, also seeking information about Nilsson’s other property holdings. Nilsson proposed mitigation for the SSTS itself but refused to provide information on other real estate holdings. DEP denied the variance citing inadequate stormwater mitigation and lack of information to substantiate hardship.

    Procedural History

    Nilsson initiated a CPLR article 78 proceeding to overturn DEP’s decision. The Supreme Court denied the petition, finding DEP’s requirements rational and Nilsson’s hardship claim unsubstantiated. The Appellate Division reversed, holding that DEP exceeded its authority by considering stormwater runoff issues and that noncontiguous real estate holdings were irrelevant. The Court directed DEP to grant the variance. The Court of Appeals granted DEP leave to appeal.

    Issue(s)

    1. Whether DEP acted within its authority by requiring mitigation of stormwater runoff as a condition for granting a variance from fill requirements for an SSTS.

    2. Whether DEP properly denied the variance application based on Nilsson’s failure to provide information about his other real estate holdings.

    Holding

    1. No, because DEP cannot extend its jurisdiction to otherwise unregulated sources of degradation or contamination of the New York City water supply, simply because they might potentially arise from the granting of a variance.

    2. No, because the request for information regarding real estate holdings was too broad; however, DEP may reasonably request information about contiguous holdings.

    Court’s Reasoning

    The Court of Appeals found that DEP properly required Nilsson to propose measures to reduce potential contamination related to the excessive fill, pursuant to 15 RCNY 18-61 (a) (1) (iii), which requires an applicant seeking a variance from the requirements of the Watershed Regulations to “[demonstrate that the activity as proposed includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are at least as protective of the water supply as the standards for regulated activities set forth in these rules and regulations.” However, DEP abused its discretion by demanding mitigation of stormwater runoff, as these regulations (15 RCNY 18-39) did not apply to Nilsson’s property. The Court reasoned that DEP cannot expand its regulatory reach simply because a variance might allow for potentially unregulated pollution sources, stating that, “DEP…cannot extend its jurisdiction to otherwise unregulated sources of degradation or contamination of the New York City water supply, simply because they might potentially arise from the granting of a variance.” The Court also held that the request for information about real estate holdings “in the immediate vicinity” was overly broad. While the regulations require a showing of “substantial hardship due to site conditions or limitations” (15 RCNY 18-61 [a] [1] [iv]), this does not mandate evidence of financial loss like a zoning use variance. DEP can, however, request information about contiguous property holdings, as combining lots may minimize hardship. The Court remitted the case to DEP for reconsideration of Nilsson’s hardship claim, given his failure to provide information about contiguous holdings.

  • Red Hook/Gowanus Chamber of Commerce v. New York City Board of Standards and Appeals, 5 N.Y.3d 452 (2005): Necessary Parties and CPLR 1001(b) Analysis

    5 N.Y.3d 452 (2005)

    When a necessary party is not initially joined in an action, a court must undertake the analysis outlined in CPLR 1001(b) to determine whether the action can proceed in the absence of that party, even if the statute of limitations has expired, and the failure to timely join a necessary party does not automatically require dismissal.

    Summary

    Red Hook/Gowanus Chamber of Commerce challenged a variance granted to 160 Imlay Street Real Estate LLC by the New York City Board of Standards and Appeals (BSA). The Chamber failed to name Imlay as a party in its initial petition within the 30-day statute of limitations. The Court of Appeals held that while Imlay was a necessary party, the lower court erred in dismissing the case without considering the factors outlined in CPLR 1001(b) to determine if the action could proceed without Imlay’s presence, despite the expired statute of limitations. The case was remitted for further proceedings to consider the CPLR 1001(b) factors.

    Facts

    1. 160 Imlay Street Real Estate LLC sought a variance from the BSA to convert an industrial building to residential use.

    2. Red Hook/Gowanus Chamber of Commerce, a local business association, opposed the variance and participated in BSA hearings.

    3. The BSA granted the variance on December 24, 2003.

    4. The Chamber filed an Article 78 petition challenging the variance on January 23, 2004, the last day of the 30-day statute of limitations, but only named the BSA and the City as respondents, omitting Imlay.

    5. Imlay received a courtesy copy of the petition on January 27, 2004.

    Procedural History

    1. The City moved to dismiss the petition for failure to name a necessary party (Imlay) within the statute of limitations.

    2. The Chamber cross-moved to amend the petition to add Imlay as a respondent.

    3. Supreme Court denied the City’s motion and granted the Chamber’s motion to amend.

    4. The Appellate Division reversed, dismissing the proceeding because the Chamber failed to adequately explain why it did not include the landowner in a timely manner.

    5. The Court of Appeals reversed the Appellate Division’s order and remitted the matter to Supreme Court.

    Issue(s)

    Whether the Appellate Division erred in dismissing the proceeding based solely on the petitioner’s failure to adequately explain why it did not include the landowner as a respondent in a timely manner, without considering the factors outlined in CPLR 1001(b) to determine if the action could proceed in the absence of a necessary party.

    Holding

    No, because the Appellate Division failed to consider the factors outlined in CPLR 1001(b), which requires a court to determine if an action can proceed without a necessary party even if jurisdiction can only be obtained by consent or appearance, and the failure to timely join a necessary party is a factor to be considered, but not the sole determinant.

    Court’s Reasoning

    The Court of Appeals reasoned that while Imlay was indeed a necessary party, the Appellate Division erred by focusing solely on the Chamber’s failure to provide an adequate explanation for not including Imlay in the initial petition. The Court emphasized that CPLR 1001(b) provides a framework for courts to determine whether an action can proceed in the absence of a necessary party when that party can only be joined by consent or appearance.

    The Court cited the five factors outlined in CPLR 1001(b):

    1. whether the plaintiff has another effective remedy if the action is dismissed;

    2. the prejudice which may accrue from the nonjoinder to the defendant or the absent person;

    3. whether and by whom prejudice might have been avoided or may in the future be avoided;

    4. the feasibility of a protective provision by order of the court or in the judgment; and

    5. whether an effective judgment may be rendered in the absence of the person who is not joined.

    The Court stated that while the failure to timely join a necessary party is a significant factor under CPLR 1001(b)(3), it is not preclusive. The Court held that the Appellate Division failed to exercise its discretion by not considering all the factors outlined in CPLR 1001(b). The case was remitted to the trial court to undertake the required analysis.

    The Court noted, “Thus, while an unexplained expired statute of limitations is very strong indication that an action should be dismissed, it is a factor in, not preclusion of, the requisite analysis.”

  • Matter of Canada Dry Bottling Company of New York v. Zoning Board of Appeals of the Town/Village of Harrison, 98 N.Y.2d 564 (2002): Restrictions on Nonconforming Uses

    98 N.Y.2d 564 (2002)

    Municipalities may adopt measures regulating nonconforming uses, and in a reasonable fashion, eliminate them.

    Summary

    Canada Dry sought to replace its wooden pallet storage system with steel-frame storage racks at its lumberyard, a nonconforming use in the Town of Harrison. The Zoning Board of Appeals (ZBA) denied the application, determining it would impermissibly expand the nonconforming use. The New York Court of Appeals affirmed, holding that substantial evidence supported the ZBA’s determination that the new racks constituted an expansion of the nonconforming use. The court also found that the ZBA rationally denied the requested use and area variances after properly balancing the benefits to Canada Dry with the detriment to the surrounding neighborhood’s health, safety, and welfare.

    Facts

    Canada Dry operated a lumberyard as a nonconforming use within the Town of Harrison. The company sought to replace its existing wooden pallet storage system with steel-frame storage racks. The proposed racks were significantly higher than the existing pallets and capable of storing three times the amount of lumber. Canada Dry installed four additional racks, and unlike the prior wooden pallets, the racks had roofs.

    Procedural History

    The Zoning Board of Appeals of the Town/Village of Harrison (ZBA) denied Canada Dry’s application, determining that the replacement of the storage system constituted an impermissible expansion of a nonconforming use and also denied the application for use and area variances. Canada Dry appealed. The lower courts affirmed the ZBA’s decision. The New York Court of Appeals granted leave to appeal and affirmed the lower court’s order.

    Issue(s)

    1. Whether the Zoning Board of Appeals erred in determining that the replacement of wooden pallets with steel-frame storage racks constituted an impermissible expansion or extension of a nonconforming use under the Town of Harrison Code?

    2. Whether the Zoning Board of Appeals rationally denied Canada Dry’s application for use and area variances?

    Holding

    1. Yes, because substantial record evidence supported the ZBA’s determination that the new racks were significantly higher, capable of storing three times the lumber, and had roofs, thus constituting an expansion of the nonconforming use.

    2. Yes, because the ZBA properly balanced benefits to the applicant with the detriment to the health, safety and welfare of the surrounding neighborhood.

    Court’s Reasoning

    The Court of Appeals began by stating that public policy favors the reasonable restriction and eventual elimination of nonconforming uses because they are seen as detrimental to zoning schemes, citing Matter of Toys “R” Us v Silva, 89 NY2d 411, 417 (1996). The court emphasized that municipalities can regulate and, in a reasonable manner, eliminate these uses. The Town of Harrison’s Comprehensive Zoning Plan aimed to promote the “gradual elimination of nonconforming uses.”

    The court deferred to the ZBA’s finding that replacing the wooden pallets with steel-frame racks impermissibly expanded the lumberyard. The court highlighted several key factual findings supported by the record: the new racks were significantly higher than the wooden pallets; they could store three times the lumber; Canada Dry installed four additional racks; and unlike the wooden pallets, the racks had roofs. The court concluded that this constituted “substantial record evidence” supporting the ZBA’s determination. The court also found that the ZBA’s denial of the requested variances was rational because they followed the appropriate balancing test outlined in Matter of Sasso v Osgood, 86 NY2d 374, 384 2 (1995), weighing the benefit to Canada Dry against the detriment to the surrounding community.

  • MTR Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972): Nonconforming Use and Zoning Regulations After Alterations

    MTR Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972)

    A pre-existing, nonconforming use’s exemption from zoning regulations, such as off-street parking requirements, is lost when the use changes to a different permitted use involving increased intensity of use, triggering the need for a new permit demonstrating full compliance with current zoning ordinances.

    Summary

    MTR Off Shore Rest. Corp. sought a building permit to convert a delicatessen into a cocktail lounge with increased seating capacity. The city denied the permit because the proposed changes did not include additional off-street parking as required by current zoning laws. MTR argued its pre-existing, nonconforming use status exempted it from the new parking rules. The New York Court of Appeals reversed the lower courts’ decisions, holding that the change in use and increased seating triggered the need for a new permit showing full compliance with the updated zoning regulations, including the off-street parking requirements. The court reasoned that the city’s zoning ordinance required conformity with all provisions whenever the use of a building changes.

    Facts

    In 1969, MTR Off Shore Rest. Corp. purchased a property in Long Beach, NY, housing a delicatessen with a seating capacity of approximately 62. The building was constructed in 1922, before off-street parking was required. MTR planned to convert the delicatessen into a cocktail lounge, increasing the seating capacity to 85 and installing a bar for 15 patrons. The proposed alterations would not involve structural changes or additions to the building. MTR intended to transfer a liquor license to the location upon the expiration of a lease at another nearby location.

    Procedural History

    The City of Long Beach’s Zoning Board of Appeals denied MTR’s application for a building permit and a variance. The Supreme Court annulled the Board’s determination and ordered the issuance of a permit. The Appellate Division affirmed. The City appealed to the New York Court of Appeals.

    Issue(s)

    Whether a delicatessen, exempt from off-street parking requirements as a pre-existing, nonconforming use, may be altered to a cocktail lounge with a greater seating capacity without providing off-street parking.

    Holding

    No, because the change in use and increased seating capacity trigger the zoning provision requiring additional off-street parking, thus necessitating a new permit demonstrating compliance with the current zoning regulations. Denial of the variance was not arbitrary because the property could continue to be used as a delicatessen.

    Court’s Reasoning

    The court examined the Long Beach zoning ordinance, noting that while pre-existing, nonconforming uses are generally exempt from certain restrictions, the ordinance also stipulated that changes in use require compliance with all current provisions. The court cited section 9-109, which states, “It shall be unlawful for the owner to use or permit the use of any building or premises or part thereof hereafter altered or erected, or to use or permit the use of any building or premises or part thereof hereafter changed to a different use, until a Use Permit shall have been issued to the owner by the Commissioner of Buildings.” The court reasoned that the change from a delicatessen to a cocktail lounge constituted a change in use. Additionally, section 9-113.1 required additional off-street parking whenever changes create a need for an increase of more than 15% in parking spaces. Because the increased seating capacity exceeded this threshold, MTR was required to provide additional off-street parking. The court distinguished between ‘use’ and ‘area’ variances and determined that because the parking restriction in this case related to uses, MTR needed to show that the property could not yield a reasonable return without increasing the burden on street parking, which it failed to do. The dissent argued that no structural changes were planned and as such the off-street parking requirement should not apply.

  • 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.