New York Law Review

Tag: zoning law

  • Legion of Christ, Inc. v. Town of Mount Pleasant, 6 N.Y.3d 406 (2006): Interpreting Zoning Ordinances for Permitted Land Use

    Legion of Christ, Inc. v. Town of Mount Pleasant, 6 N.Y.3d 406 (2006)

    When interpreting zoning ordinances, courts should give a broad interpretation to permitted uses, especially when that interpretation aligns with the ordinance’s purpose and does not harm any legitimate interest the town seeks to protect through zoning.

    Summary

    This case concerns the interpretation of a zoning ordinance that permitted “conference and training facilities.” The Legion of Christ, Inc. (the Legion), a religious order, purchased property previously used by IBM for employee training and conferences. The Legion used the property to train future priests, with some programs lasting up to two years. The Town of Mount Pleasant argued that the Legion’s use was not permitted, as it was more akin to a college or seminary. The New York Court of Appeals held that the Legion’s use was permitted under the ordinance, reasoning that the ordinance should be interpreted broadly and the Legion’s use was substantially similar to the previous owner’s use.

    Facts

    Prior to 1983, IBM acquired a 97-acre property. In 1983, the Town created an “Office Corporate Education” zoning district coextensive with the property to facilitate private enterprise education for employees of major corporations.
    In 1993, the Town amended the zoning code to broaden the permitted uses to include educating “the employees of major corporations and others”.
    IBM rented the conference center to various entities, including a university, college, and church, for conference and training purposes.
    In 1996, IBM sold the property to the Legion.
    The Legion used the property for religious training, including long-term programs for future priests (brothers in formation) and shorter courses for priests and laypeople.
    Aside from converting two rooms into chapels, the Legion made few physical alterations to the property.

    Procedural History

    The Town of Mount Pleasant sued the Legion, seeking a declaration that the Legion’s use of the property for religious purposes violated the zoning code.
    Supreme Court ruled in favor of the Legion, holding that its use complied with the zoning code. The court also awarded attorney’s fees to the Legion.
    The Appellate Division reversed, holding that the Legion’s use was not permitted and denying attorney’s fees.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Legion’s use of the property as a training facility for future priests and other religious education programs is permitted under the Town of Mount Pleasant’s zoning ordinance allowing “conference and training facilities.”

    Holding

    Yes, because the Legion’s use falls within a broad interpretation of “conference and training facilities” as described in the zoning ordinance and the duration of the training programs does not violate the zoning ordinance’s purpose.

    Court’s Reasoning

    The Court of Appeals held that the Legion’s use was permitted under the Town Code. The court reasoned that the Legion’s activities, including training and continuing education, fell squarely within the definition of “conference and training facilities” as outlined in the Town Code.
    The court emphasized that the Town Code’s definition was broad and could easily be interpreted to include the Legion’s activities. The court noted, “The Legion uses the property as the Town Code specifies. It conducts brief programs that could be labeled ‘[c]onference[s]’ and it provides ‘training’ to its brothers in formation and others. Substantially all of its activities consist of ‘[c]ontinuing education,’ and to that end it uses ‘[c]lassroom space,’ ‘teaching equipment’ and ‘[o]ffices for staff.’ It also uses ‘[i]ndoor and outdoor physical recreational facilities,’ and ‘[h]ousing and dining facilities.’”
    The Court rejected the Town’s argument that the longer duration of the Legion’s training programs distinguished it from IBM’s use, stating, “Nothing in the Town Code says or implies that only training programs of relatively short duration are permitted in the OB-CE district.” The Court further observed that the Town’s specific prohibition of “hotel or public restaurant” use indicated a greater concern with short-term rather than long-term visitors.
    Policy considerations also influenced the court’s decision. The court noted that a broad interpretation of “conference and training facilities” did not harm any legitimate interest of the Town that could be protected by zoning. The court highlighted that the Town did not claim that the Legion’s use presented any traffic, health, or safety problems different from those presented by IBM’s use. The court explicitly stated that keeping property in tax-paying hands is not a legitimate purpose of zoning.
    Because the Court decided the case on state law grounds, it did not address the Religious Land Use and Institutionalized Persons Act (RLUIPA) issue raised by the Legion.

  • Real Holding Corp. v. Town of Wappinger, 1 N.Y.3d 298 (2004): ZBA Authority to Grant Area Variances for Special Use Permits

    Real Holding Corp. v. Town of Wappinger, 1 N.Y.3d 298 (2004)

    A zoning board of appeals (ZBA) has the authority to grant area variances from any requirement in a zoning regulation, including those for a special use permit, pursuant to Town Law § 274-b (3).

    Summary

    Real Holding Corp. (RHC) sought to develop a gasoline filling station on a parcel of land but was unable to meet the distance requirements for a special use permit. RHC applied to the Town of Wappinger’s ZBA for area variances, which were denied based on the ZBA’s belief that it lacked jurisdiction to grant variances from special use permit requirements. The New York Court of Appeals held that Town Law § 274-b (3) grants ZBAs the authority to issue area variances from special use permit requirements, clarifying the relationship between subdivisions (3) and (5) of the statute. This decision affirms the ZBA’s role in mitigating the rigid application of zoning regulations.

    Facts

    RHC acquired land in a Highway Business District previously used as a gas station. To re-establish a gas station, RHC needed a special use permit, but the property did not meet the Town Code’s distance requirements: 1,000 feet from residentially zoned lands and 2,500 feet from other gas stations. RHC’s initial variance request was denied by the ZBA, which cited a lack of jurisdiction. After being denied a special use permit by the Planning Board in 2000, RHC again requested variances from the ZBA, which again denied the application, maintaining it lacked the power to grant area variances from special use permit requirements absent explicit authorization from the Town Board.

    Procedural History

    RHC filed a CPLR Article 78 proceeding to annul the ZBA’s decision. Supreme Court granted RHC’s petition, remitting the matter to the ZBA, holding that Town Law § 274-b (3) authorizes ZBAs to grant area variances from special use permit requirements. The Appellate Division affirmed. The ZBA appealed to the New York Court of Appeals.

    Issue(s)

    Whether Town Law § 274-b (3) authorizes a zoning board of appeals (ZBA) to grant area variances from special use permit requirements.

    Holding

    Yes, because Town Law § 274-b (3) plainly states that “application may be made to the [ZBA] for an area variance” where a special use permit does not comply with zoning regulations, “[n]otwithstanding any provision of law to the contrary.”

    Court’s Reasoning

    The Court relied on the plain language of Town Law § 274-b (3), which allows application to a ZBA for an area variance when a special use permit does not comply with “zoning regulations.” The Court noted that the statute does not differentiate between general zoning requirements and those specific to special use permits. The court stated, “To hold that a ZBA may vary certain zoning provisions only if expressly empowered to do so by the town board overlooks the entire purpose of the ZBA, which is to provide relief in individual cases from the rigid application of zoning regulations enacted by the local legislative body.” The Court further reasoned that Town Law § 274-b is entitled “Approval of special use permits,” and subdivision (3) directs that application for an area variance may be made to the ZBA “pursuant to” section 267-b, which supplies the procedures for a ZBA to follow when issuing an area variance. The Court also clarified that subdivision (5), which allows a town board to empower an “authorized board” to waive special use permit requirements, does not conflict with subdivision (3); subdivision (5) provides a broader waiver authority, while subdivision (3) specifically addresses area variances granted by the ZBA. The Court emphasized that ZBAs are “vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances” (Matter of Commco, Inc. v Amelkin, 62 NY2d 260, 266 [1984]). The Court found that the legislative history supported the distinct purposes of subdivisions (3) and (5), with subdivision (3) addressing dimensional difficulties through area variances granted by the ZBA.

  • Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004): Upholding Zoning Board Discretion in Area Variance Decisions

    Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608 (2004)

    Local zoning boards have broad discretion in considering applications for area variances, and their decisions will be upheld if they have a rational basis and are supported by substantial evidence, even if a court might have decided the matter differently.

    Summary

    Gregory Pecoraro sought an area variance to build a single-family home on a substandard parcel of land. The Board of Appeals of the Town of Hempstead denied the variance, citing the substantial nature of the variance requested, the self-created difficulty (the parcel was illegally subdivided), and the potential negative impact on the character of the neighborhood. Pecoraro challenged the denial, but the New York Court of Appeals reversed the Appellate Division’s decision, holding that the Board did not abuse its discretion. The Court emphasized the broad discretion afforded to local zoning boards and the limited role of judicial review in such matters, finding the Board’s decision rational and supported by evidence.

    Facts

    Pecoraro entered into a contract to purchase a substandard parcel of land contingent on obtaining an area variance to build a single-family dwelling. The property, located in a residential zone requiring 6,000 square feet and 55 feet of frontage, had only 4,000 square feet and 40 feet of frontage. The lot had been illegally subdivided in 1959. A prior variance request for the same parcel had been denied in 1969. Pecoraro presented evidence that the proposed development would be in character with the neighborhood and would not negatively affect property values.

    Procedural History

    Pecoraro applied for an area variance, which the Board of Appeals denied. He then commenced an Article 78 proceeding challenging the Board’s determination. The Supreme Court granted the petition, annulling the Board’s decision and remanding for further proceedings. The Appellate Division modified, directing the Board to issue the variance. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Board of Appeals of the Town of Hempstead abused its discretion, as a matter of law, in denying Pecoraro’s application for an area variance.

    Holding

    No, because the Board reasonably considered the factors outlined in Town Law § 267-b, weighed the petitioner’s interest against the interest of the neighborhood, and its decision had a rational basis supported by substantial evidence.

    Court’s Reasoning

    The Court of Appeals emphasized the broad discretion afforded to local zoning boards in area variance decisions. It stated that courts may only set aside a zoning board’s determination if the board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community pressure. Citing Matter of Cowan v. Kern, the Court noted that zoning decisions are best made by local officials familiar with local conditions. The Court found that the Board’s decision was rational and supported by substantial evidence, as the Board properly considered the factors in Town Law § 267-b(3), including the potential negative impact on the neighborhood’s character, the substantiality of the variance requested, and the self-created nature of the difficulty. The Board’s conclusion that the area variance would have a negative impact was supported by evidence showing that the area was overwhelmingly conforming or larger than the zoning requirements. “The variance sought would have allowed a 33.3% deficiency in lot area and a 27.3% deficiency in frontage width. It was not an abuse of discretion to determine that the substantiality of such a variance weighed against granting it.” The Court also noted that granting a variance for an illegally substandard parcel could set a negative precedent, potentially leading to landowners illegally subdividing oversized parcels in the future. The Court concluded that it would not substitute its judgment for the reasoned judgment of the zoning board, emphasizing that “The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them”.

  • 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.

  • Ifrah v. UZB of Town of Harrison, 17 N.Y.3d 20 (2001): Balancing Test for Area Variances

    Ifrah v. UZB of Town of Harrison, 17 N.Y.3d 20 (2001)

    When determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted, considering factors such as neighborhood character, alternative solutions, the substantiality of the variance, environmental impact, and whether the difficulty was self-created.

    Summary

    Philippe Ifrah sought area variances to subdivide a nonconforming parcel into two substandard lots. The Zoning Board of Appeals denied the application, citing the substantial deviation from the one-acre requirement, and the negative impact on neighborhood character. The Appellate Division reversed, focusing on the prevalence of substandard lots in the area. The New York Court of Appeals reversed the Appellate Division, holding that the Board’s decision had a rational basis and was supported by substantial evidence, emphasizing that lot size is not the only relevant factor and the Board properly considered other factors like traffic and neighborhood aesthetics. The Court emphasized the need for a balancing test considering all statutory factors.

    Facts

    In 1996, Philippe Ifrah purchased a 0.77-acre property in Harrison, NY, which was already nonconforming under the Town’s zoning ordinance requiring one acre per dwelling. The lot was originally two separate lots which merged in 1974 under common ownership. Ifrah sought to subdivide the parcel into two lots, one 0.40 acres and the other 0.37 acres, necessitating four area variances. The proposed new construction was of a modern style, in a neighborhood of neo-Tudor homes. The proposed new driveway had a steep slope at a difficult intersection.

    Procedural History

    The Zoning Board of Appeals of the Town of Harrison denied Ifrah’s variance application. Ifrah commenced an Article 78 proceeding challenging the Board’s determination. Supreme Court denied the petition. The Appellate Division reversed, granting the petition. The New York Court of Appeals reversed the Appellate Division and dismissed the petition, upholding the Zoning Board’s decision.

    Issue(s)

    Whether the Zoning Board of Appeals rationally based its decision on substantial evidence when it denied the area variances, considering the detriment to the neighborhood and the statutory factors outlined in Town Law § 267-b (3)?

    Holding

    Yes, because the Zoning Board engaged in the required balancing test, weighing the benefit to the applicant against the detriment to the neighborhood, and its decision was supported by objective factual evidence relating to neighborhood character, traffic concerns, and the substantiality of the requested variances.

    Court’s Reasoning

    The Court of Appeals emphasized that local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the board’s action was illegal, arbitrary, or an abuse of discretion. The Court stated that a zoning board’s determination should be sustained if it has a rational basis and is supported by substantial evidence. The Court found that the Board considered the statutory factors outlined in Town Law § 267-b (3), including the impact on neighborhood character, the availability of alternative solutions, the substantiality of the variance, the environmental impact, and whether the difficulty was self-created.

    The Court rejected the Appellate Division’s focus solely on the prevalence of substandard lots in the area, stating, “Lot size, however, is not the only relevant factor when considering impacts on the character of a neighborhood.” The Court noted that the Board considered the distinctive architectural style of the existing homes and the potential disturbance caused by a modern home. It also considered evidence of traffic flow, safety, and parking impacts.

    The Court highlighted that the variances sought were substantial (at least 60%), the difficulty was self-created, and the petitioner could still make productive use of his property as it already contained a habitable residence. The Court concluded that the Board could rationally conclude that the detriment to the neighborhood outweighed the benefit sought by the petitioner, and its determination denying the variances was not arbitrary or capricious. The court stated, “[T]he Board could rationally conclude that the detriment the proposed subdivision posed to the neighborhood outweighed the benefit sought by petitioner, and its determination denying the requested variances was not arbitrary or capricious.”

  • 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.

  • Tall Trees Construction Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86 (2001): Effect of Repeated Tie Votes on Variance Applications

    Tall Trees Construction Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86 (2001)

    When a quorum of a zoning board of appeals is present and participates in a vote on a variance application, a vote of less than a majority of the board in favor of the application is deemed a denial of the variance.

    Summary

    Tall Trees Construction Corporation sought area variances from the Town of Huntington Zoning Board of Appeals to subdivide a property. After the Board repeatedly issued “no action” decisions due to tie votes, Tall Trees initiated Article 78 proceedings. The New York Court of Appeals held that repeated tie votes by a zoning board on a variance application, where a quorum is present and voting, effectively constitute a denial of the application. The Court further found that the denial in this specific case was arbitrary and capricious, given the evidence presented and the Board’s prior approvals of similar applications.

    Facts

    Tall Trees Construction Corporation applied to the Town of Huntington Zoning Board of Appeals for area variances to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel in question, and therefore, abstained from voting. The initial vote resulted in two members voting to deny, two voting to grant, and two absent, leading to a “no action” determination. The Board reiterated the same “no-action” determination after being compelled to vote again by court order.

    Procedural History

    1. Tall Trees initially commenced a CPLR Article 78 proceeding after the first “no action” decision, seeking to annul the Board’s decision and compel the granting of the variances. The Supreme Court remitted the matter back to the Board.

    2. Following the Board’s second “no action” decision, Tall Trees commenced a second CPLR Article 78 proceeding. Supreme Court granted the petition, annulled the Board’s second decision, and granted the variances.

    3. The Appellate Division reversed, remitting the matter to the Board for a new hearing, concluding that the Board’s vote was not a denial.

    4. The New York Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s judgment.

    Issue(s)

    Whether repeated tie votes by a Zoning Board of Appeals on an application for area variances, where a quorum is present and participates in the voting, constitutes a denial of the application.

    Holding

    Yes, because General Construction Law § 41 allows valid action by a body as long as there is participation by a majority, and Town Law § 267-a(4) requires a concurring majority to “reverse” a determination or to “grant” a variance, but does not specify the same requirement for a denial. Therefore, failure to achieve a concurring majority to grant the variance results in a denial.

    Court’s Reasoning

    The Court of Appeals reasoned that a harmonious reading of General Construction Law § 41 and Town Law § 267-a(4) indicates that while a majority of the board must participate to exercise authority, a concurring majority is not required to deny a variance application. Town Law § 267-a(4) explicitly requires a concurring majority to “reverse” a determination or to “grant” a variance. The absence of such a requirement for denial implies that if a concurring vote does not exist to grant the application, it is necessarily denied.

    The Court explicitly rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals, which had concluded that a tie vote constitutes non-action. The Court found that Walt Whitman‘s reliance on Matter of Squicciarini v Planning Bd. was misplaced, as Squicciarini involved a situation where a majority of the board did not participate in the vote, violating General Construction Law § 41.

    The Court also addressed the specific facts of the case, finding the Board’s denial of the variance to be arbitrary and capricious. Citing Matter of Sasso v Osgood, the Court reiterated the balancing test required when deciding on area variances, weighing the benefit to the applicant against the detriment to the community. The Court emphasized that the Board provided no factual findings to support its denial, and that the record contained unrefuted evidence that the variances would have minimal adverse impact on the neighborhood. Quoting Knight v Amelkin, the court stated, “ ‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’ ” Given that similar applications had been approved in the past, the denial in this case was deemed arbitrary and capricious.

    The court found that the Board’s repeated tie votes, in effect, blocked the applicant’s right to judicial review and would leave the petitioner’s application in “zoning purgatory.” The Court held that the benefit of granting the variance was significant, the detriment to the community minimal, and that the Board had acted arbitrarily.

  • Tall Trees Construction Corp. v. Zoning Board of Appeals, 97 N.Y.2d 86 (2001): Effect of Tie Votes on Variance Applications

    97 N.Y.2d 86 (2001)

    When a quorum of a Zoning Board of Appeals is present and participates in a vote on a variance application, a tie vote that fails to garner a majority to grant the application is deemed a denial.

    Summary

    Tall Trees Construction Corp. applied for area variances to subdivide a property. The Zoning Board of Appeals repeatedly deadlocked on the application. Tall Trees then initiated a CPLR article 78 proceeding arguing the tie vote should be considered a denial. The New York Court of Appeals held that a tie vote by a zoning board, where a quorum is present and participates in the vote, is effectively a denial of the variance application. The Court also determined that the denial was arbitrary and capricious because the benefit to the applicant was significant while any detriment to the community was minimal, and similar applications had been approved in the past.

    Facts

    Tall Trees Construction Corp. sought area variances from the Town of Huntington Zoning Board of Appeals to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel. The Board initially issued a “NO ACTION” decision after a vote of 2-2, with two members absent and Lamanna abstaining. After a court order to reconsider, the Board again issued a “NON-ACTION” determination based on the same vote.

    Procedural History

    Tall Trees initially commenced a CPLR article 78 proceeding, and the Supreme Court remitted the matter to the Board for another vote. When the Board again deadlocked, Tall Trees initiated a contempt proceeding. The Supreme Court then granted the petition, annulled the Board’s second decision, and granted the variances. The Appellate Division reversed, remitting the matter for further proceedings, including a new hearing. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a tie vote by a Zoning Board of Appeals, where a quorum is present and participates in the vote, constitutes a denial of a variance application.

    Holding

    Yes, because although Town Law § 267-a(4) requires a concurring majority vote to grant a variance, it does not require the same majority vote concurrence for a denial. If no concurring vote of the majority exists to grant an application after participation and voting by a majority of the board, the application is denied.

    Court’s Reasoning

    The Court reasoned that General Construction Law § 41 allows valid action by a body as long as there is participation by a majority of the whole number. Town Law § 267-a(4) mandates a concurring majority vote to reverse a determination or grant a variance, but conspicuously omits this requirement for denial. The Court harmonized these provisions by concluding that if a majority participates and votes, the absence of a majority vote to grant the application results in its denial. The Court rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals that a tie vote is equivalent to nonaction because the Walt Whitman decision incorrectly relied on Matter of Squicciarini v Planning Bd. where there was no majority participation. The Court stated, “[w]e find it curious that this particular Zoning Board of Appeals has a history of `nonaction’ tie votes which, in effect, block an applicant’s right to judicial review.” The court found that the denial of the variance was arbitrary and capricious because the unrefuted evidence presented by Tall Trees demonstrated that the benefit of granting the variances was great, any detriment to the community was minimal, and nearly identical variance applications had been approved in the past. The Court cited the principle that “`[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’”

  • Stringfellow’s of New York v. City of New York, 96 N.Y.2d 53 (2001): “Adult Establishment” Definition and Exclusion of Minors

    Stringfellow’s of New York v. City of New York, 96 N.Y.2d 53 (2001)

    A business cannot avoid classification as an “adult eating or drinking establishment” under New York City zoning regulations by adopting a sham policy of allowing minors when its primary business involves sexually explicit entertainment.

    Summary

    Stringfellow’s, a topless bar, challenged its classification as an “adult eating or drinking establishment” under New York City’s zoning resolution, which restricts the location of such businesses. Stringfellow’s argued that its policy of purportedly admitting minors exempted it from the definition, which includes establishments “not customarily open to the general public * * * because it excludes minors by reason of age.” The New York Court of Appeals rejected this argument, finding the policy a sham designed to circumvent the zoning regulations. The court emphasized the city’s intent to protect children from sexually oriented environments and upheld the restrictions on adult establishments.

    Facts

    Stringfellow’s operated a topless bar in New York City. After the city amended its zoning resolution (AZR) to restrict the location of “adult eating or drinking establishments,” Stringfellow’s adopted a “minors policy.” This policy involved a detailed, multi-step process for admitting minors accompanied by a parent or guardian, including attorney consultation, parental consent forms attesting the entertainment was “not harmful,” and written consent from the minor. From 1997 to 1998, Stringfellow’s admitted only one minor under this policy. The city sought to enforce the AZR against Stringfellow’s, arguing it qualified as an “adult eating or drinking establishment.”

    Procedural History

    Stringfellow’s sued the City, seeking a declaratory judgment that it was not an “adult eating or drinking establishment.” The City counterclaimed to enforce the AZR. The Supreme Court initially dismissed the City’s complaint. The Appellate Division reversed, holding that Stringfellow’s was an “adult eating or drinking establishment.” On remand, the Supreme Court granted a permanent injunction against Stringfellow’s, preventing it from operating as an adult establishment. The Appellate Division affirmed, and Stringfellow’s appealed to the New York Court of Appeals.

    Issue(s)

    Whether Stringfellow’s minors policy, despite its restrictive nature and minimal practical effect, effectively removed it from the definition of an “adult eating or drinking establishment” under the New York City Zoning Resolution.

    Holding

    No, because Stringfellow’s “minors policy” was a transparent attempt to circumvent the AZR, and the establishment was not “customarily open to the general public,” given the policy’s restrictive nature and the extremely limited number of minors actually admitted.

    Court’s Reasoning

    The court found that Stringfellow’s policy was a sham designed to avoid the AZR’s restrictions and potential criminal liability. The court emphasized that “customary openness” requires openness that is “usual, ordinary or habitual (rather than rare or occasional),” citing Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, 43. The court noted the City’s clear intent to keep children away from adult establishments, stating that the AZR was “designed to keep children away from these establishments, not to have them invited in as customers.” The court refused to interpret the AZR in a way that would create a paradox where admitting more children would strengthen an establishment’s claim that it is customarily open to the public. The court stated, “When the lawmakers’ purpose is as clear as it is here, we will not bend their words into the shape of a loophole.” The court further reasoned that Stringfellow’s interpretation would be at odds with the underlying purposes of the Penal Law, which includes provisions designed to shield children from exposure to activities appropriate only for adults.

  • DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 92 (2001): Zoning Authority and State Preemption of Alcohol Regulation

    DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 92 (2001)

    A municipal zoning ordinance that regulates the location of adult establishments is not preempted by the state’s Alcoholic Beverage Control Law, even if the establishments also sell alcohol, because the zoning ordinance addresses land use, a matter of local concern, rather than alcohol regulation, a matter of state concern.

    Summary

    This case addresses the interplay between municipal zoning power and state preemption, specifically concerning adult establishments that sell alcohol. The City of New York amended its zoning resolution to regulate the location of adult establishments to combat negative secondary effects like increased crime. Several adult establishments with liquor licenses sued, arguing that the city’s zoning regulations were preempted by the state’s Alcoholic Beverage Control (ABC) Law. The New York Court of Appeals held that the zoning regulations were not preempted because they regulate land use, a local concern, and only incidentally affect establishments that sell alcohol, which is a matter of state regulation.

    Facts

    In 1995, New York City amended its Zoning Resolution (AZR) to regulate the location of “adult establishments” due to concerns about increased crime, reduced property values, and neighborhood deterioration. The AZR required adult establishments to be located in manufacturing and high-density commercial zoning districts and maintain a minimum distance from schools and places of worship. The plaintiffs, adult establishments licensed to sell alcohol and featuring topless dancing, challenged the AZR, arguing that the ABC Law preempted it.

    Procedural History

    The plaintiffs sued the City, seeking a declaratory judgment that the ABC Law preempted the AZR. The Supreme Court treated the City’s motion to dismiss as a motion for summary judgment and granted it in favor of the City. The Appellate Division affirmed the Supreme Court’s decision. The plaintiffs appealed to the New York Court of Appeals.

    Issue(s)

    Whether the City of New York’s Amended Zoning Resolution, which regulates the location of adult establishments, is preempted by the Alcoholic Beverage Control Law, even when applied to adult establishments licensed to sell alcohol.

    Holding

    No, because the state’s Alcoholic Beverage Control Law preempts the regulation of alcohol, but it does not preempt the City’s general authority to regulate land use through zoning ordinances, even when those ordinances incidentally affect businesses that also sell alcohol.

    Court’s Reasoning

    The Court of Appeals reasoned that the State Constitution and the Municipal Home Rule Law empower municipalities to enact local laws for the “protection and enhancement of its physical and visual environment” and for the “government, protection, order, conduct, safety, health and well-being of persons or property therein.” This includes the power to enact zoning regulations, as long as they are consistent with the State Constitution and state statutes. Local laws are preempted when they conflict with state statutes, either directly or when the state legislature has assumed full regulatory responsibility over a particular field.

    The Court acknowledged that the ABC Law preempts the field of alcohol regulation. However, the Court emphasized that the AZR is a local law of general application aimed at regulating land use, not alcohol. The Court stated that “by regulating land use a zoning ordinance ‘inevitably exerts an incidental control over any of the particular uses or businesses which * * * may be allowed in some districts but not in others.’” It cited Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131, emphasizing that the AZR regulates the locales of adult establishments, regardless of whether they sell alcoholic beverages.

    The Court distinguished this case from People v. De Jesus, 54 NY2d 465, where a local law dealing “solely with the actions of patrons of establishments which sell alcoholic beverages” was preempted. Here, the AZR applied to all adult establishments, regardless of whether they sold alcohol. The Court also noted that “separate levels of regulatory oversight can coexist” and that state statutes do not necessarily preempt local laws having only a “tangential” impact on the State’s interests.

    The Court concluded that a liquor licensee wishing to provide adult entertainment must do so in a location authorized by the AZR—not because it is selling liquor, but because it is providing adult entertainment. Conversely, if an adult establishment wishes to sell liquor, it must obtain a liquor license and comply with the ABC Law. The overlapping requirements are merely peripheral and represent the inevitable incidental control a zoning ordinance exerts over a particular business.