New York Law Review

Tag: zoning law

  • New York Institute of Technology v. LeBoutillier, 33 N.Y.2d 125 (1973): Zoning Restrictions on College Expansion

    New York Institute of Technology v. LeBoutillier, 33 N.Y.2d 125 (1973)

    A zoning board’s denial of a special exception permit for a college’s expansion into a residential area will be upheld if the denial is reasonable and supported by substantial evidence, particularly when the college’s need for expansion is questionable and the expansion would negatively impact the surrounding community and conflict with established planning objectives.

    Summary

    The New York Institute of Technology (NYIT) sought a permit to expand its campus by incorporating a 57.8-acre estate located in a residential zone of Old Westbury, NY. The Board of Appeals denied the permit, citing concerns about increased traffic, altered neighborhood character, and conflict with a prior agreement between NYIT and the village. The New York Court of Appeals affirmed the denial, finding that NYIT’s need for expansion was questionable given its existing undeveloped land and underutilized student enrollment capacity, and that the proposed expansion would negatively impact the community and contradict established planning objectives.

    Facts

    NYIT operated a 407-acre campus in Old Westbury, subject to a 1965 agreement limiting student enrollment and building area. The college acquired a 57.8-acre property (the Holloway estate) in a residential zone, about a half-mile from the main campus. NYIT applied for a permit to use the estate for classrooms and offices for its teacher education program. The village’s zoning ordinance required the Board of Appeals to consider the impact on health, safety, welfare, neighborhood character, and public convenience.

    Procedural History

    The Board of Appeals referred the application to the Planning Board, which recommended denial based on concerns about traffic, neighborhood character, and conflict with the 1965 agreement. The Nassau County Planning Commission also recommended denial. The Board of Appeals denied NYIT’s application. Special Term upheld the Board’s determination. The Appellate Division affirmed Special Term’s decision.

    Issue(s)

    Whether the Board of Appeals acted arbitrarily, capriciously, or unreasonably in denying NYIT’s application for a special exception permit to expand its campus into a residential district.

    Holding

    No, because the Board of Appeals’ decision was reasonable and supported by substantial evidence, including NYIT’s questionable need for expansion, the potential for increased traffic, and the negative impact on the residential character of the neighborhood.

    Court’s Reasoning

    The court emphasized that zoning restrictions must be justified by the police power and bear a substantial relation to public health, safety, morals, or general welfare. While educational uses generally further public welfare and cannot be wholly excluded from residential districts, restrictions can be placed upon them. The court distinguished this case from others involving expansion of educational facilities, noting that those cases involved apparent need for expansion. Here, NYIT had significant undeveloped land on its existing campus and its student enrollment was far below the limit set by the 1965 agreement. The court acknowledged NYIT’s economic argument for using the Holloway estate but stated that a college’s desire to expand by the “path of least economic resistance” must yield to the legitimate interests of village residents. The court also noted the importance of the 1965 agreement as part of the village’s comprehensive plan, and that approving NYIT’s application would deviate substantially from that agreement by placing a college use in the center of a residential district and routing traffic through interior village roads. Finally, the court found that Old Westbury had not pursued an exclusionary policy toward colleges. The court found substantial evidence supported the Board of Appeals’ determination, affirming the denial of the permit.

  • Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 (1980): State Agencies and Overriding Local Zoning Laws

    Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 (1980)

    When acting pursuant to a state-wide concern, a state agency like the Urban Development Corporation (UDC) can override local zoning ordinances if the legislature has granted them that power, and this power doesn’t violate the home rule provisions of the New York Constitution.

    Summary

    This case addresses whether the New York State Urban Development Corporation (UDC) can disregard local zoning laws when planning and executing projects. The plaintiff, a property owner near a proposed UDC project, argued that the UDC’s actions violated the home rule provision of the New York Constitution. The Court of Appeals held that the UDC, acting under the authority of Article XVIII of the State Constitution related to state housing projects, could override local zoning laws because housing is a matter of state-wide concern and the legislature granted the UDC such power. This power doesn’t violate home rule provisions when applied to general laws affecting all municipalities.

    Facts

    Plaintiff owned property near a 12-acre site (the Banay property) in the Village of Ossining, where the UDC planned a development project. The proposed UDC project included facilities that would violate the village’s zoning ordinance, which prohibited high-rise apartments, multiple dwellings, and residences on lots smaller than 7,500 square feet in the affected area. The plaintiff brought suit, alleging the statute enabling the UDC’s actions was unconstitutional.

    Procedural History

    The Trial Term granted summary judgment in favor of the UDC. The Appellate Division affirmed the Trial Term’s decision. The dissenting justices in the Appellate Division argued that the statute only allowed deviation from local laws regarding materials and processes, not zoning laws. The plaintiff then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the New York State Urban Development Corporation (UDC) may plan and execute projects in disregard of local zoning laws, considering the home rule provisions of the New York Constitution (Article IX) and the provisions regarding state housing projects (Article XVIII).

    Holding

    Yes, because Article IX is expressly subject to other provisions of the State Constitution, and section 3 of article IX provides that “ [e]xcept as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to * * * Matters other than the property, affairs or government of a local government.”

    Court’s Reasoning

    The Court reasoned that the legislature intended to allow the UDC to override local zoning laws. The Court pointed to a vetoed bill (Assembly Bill No. 650) that would have required the UDC to comply with local zoning ordinances, and the Governor’s veto message stating that the UDC was created to overcome restrictive local standards that impede urgently needed development. This demonstrated that both the executive and legislative branches believed the UDC was exempt from local zoning. The court emphasized that housing is a matter of state-wide concern. Because the statute is general in nature and affects housing, local laws cannot inhibit the operation of general laws. The UDC’s powers stem from Article XVIII of the State Constitution, which establishes the legislative power to create such an agency to alleviate housing problems. The Court noted, “This grant of power reaffirmed the traditional immunity that instrumentalities of the State have enjoyed when carrying out State purposes.” (N. Y. Legis. Annual, 1972, p. 448.)

  • Lefrak Forest Hills Corp. v. Galvin, 40 N.Y.2d 792 (1976): Vested Rights and Zoning Permit Extensions

    Lefrak Forest Hills Corp. v. Galvin, 40 N.Y.2d 792 (1976)

    A property owner does not acquire a vested right to complete construction based on a building permit when the permit was issued during a grace period after a zoning law change, and the owner fails to meet reasonable conditions attached to permit extensions.

    Summary

    Lefrak sought an extension of building permits to construct apartment buildings. The Board of Standards and Appeals denied the extension, finding Lefrak had not substantially completed the foundations by the required date. The Appellate Division reversed, holding that prior extensions and reliance on the permits created vested rights. The New York Court of Appeals reversed, holding that Lefrak did not acquire a vested right because the original permit was issued during a grace period after a zoning change, and Lefrak failed to meet the condition of substantial foundation completion for further extensions. The dissent argued the equities favored the community’s right to benefit from the updated zoning resolution.

    Facts

    In 1960, New York City adopted a zoning resolution prohibiting high-rise apartments in Forest Hills-Kew Gardens, effective December 15, 1961. During the grace period, the Long Island Rail Road sold property to Adson Industries, which filed building plans in 1961 for two 18-story buildings. Permits were issued in July 1963. Adson obtained extensions in 1964, 1965, and 1966. Franklin National Bank, the mortgagee, acquired the property in 1967 after Adson defaulted and secured extensions in 1967, 1968, 1969 and 1970. In 1971, Franklin contracted to sell to Lefrak, who modified the plans to include two 20-story towers and obtained amended permits in August 1971. In December 1971, Lefrak applied for another extension, which the Board denied.

    Procedural History

    The Board of Standards and Appeals denied Lefrak’s application for a building permit extension. The Appellate Division reversed the Board’s decision, directing that the extension be granted. The New York Court of Appeals reversed the Appellate Division, reinstating the Board’s determination.

    Issue(s)

    Whether Lefrak acquired a vested right to complete construction of its apartment buildings based on prior building permit extensions, despite failing to substantially complete the foundations by the deadline.

    Holding

    No, because the original building permit was issued during a grace period following a zoning change, and Lefrak failed to meet the reasonable condition of substantial foundation completion attached to permit extensions.

    Court’s Reasoning

    The Court reasoned that the traditional vested rights doctrine, which protects property owners who have substantially relied on a validly issued permit before a zoning change, did not apply. The original building permit was not issued before the adoption of the 1960 Zoning Resolution; it was issued during the grace period. As such, Lefrak was subject to reasonable conditions for permit extensions. The key condition was the “substantial construction of foundations.” Because Lefrak failed to meet this condition by the deadline, the Board was justified in denying the extension. The Court distinguished this case from situations where the original permit was issued before the zoning change. In those cases, a property owner could argue that their right to build had already vested. Here, the permit was issued under a specific grace period provision. The Court also noted that prior extensions granted by the Board did not bind the Board to perpetuate past errors, stating that “an administrative agency is not bound to perpetuate past errors. On the contrary, it has the power and the duty to correct an erroneous interpretation of the governing statute or even an unwise policy.” The dissenting opinion argued that the equities favored the community’s right to benefit from the 1960 Zoning Resolution. The dissent also pointed out Lefrak’s modifications to the building plans and the numerous prior extensions granted without substantial progress.

  • Williams v. Town of Oyster Bay, 32 N.Y.2d 78 (1973): Establishing Unconstitutional Zoning

    Williams v. Town of Oyster Bay, 32 N.Y.2d 78 (1973)

    A zoning ordinance is unconstitutional only if it prevents a property owner from using their property for any purpose for which it is reasonably adapted, and the owner bears the burden of proving such invalidity by demonstrating that the property cannot yield a reasonable return under any permitted use.

    Summary

    The plaintiffs, Catherine and Gene Williams, challenged the constitutionality of the Town of Oyster Bay’s zoning ordinance as applied to their property, arguing it prevented them from using it for business purposes. The property was zoned residential, while adjacent property was zoned for business. The New York Court of Appeals held that the zoning ordinance was constitutional as applied to the plaintiffs’ property, because the plaintiffs failed to demonstrate that the property could not yield a reasonable return under any permitted residential use. The court emphasized the importance of demonstrating that no reasonable return could be obtained from any permitted use before a zoning ordinance can be deemed unconstitutional.

    Facts

    Catherine and Gene Williams owned property in the Village of Massapequa, part of which was zoned for residential use (“Residence D”), and part for business use (“Business F”). The residential portion of their property was located on Merrick Road, surrounded primarily by residential properties, with some non-conforming professional offices and a gift shop nearby. The Williamses sought to have the residential zoning declared unconstitutional, claiming it prevented them from using the property for business purposes. They had previously been denied a business use variance. Evidence regarding the property’s salability for residential purposes was weak, and the lower court found substantial economic loss due to the residential zoning.

    Procedural History

    The Supreme Court, Special Term, ruled in favor of the plaintiffs, declaring the zoning ordinance unconstitutional as applied to their property. The Appellate Division reversed the Special Term’s judgment, holding that the evidence was insufficient to establish that the ordinance served no legitimate purpose and was unconstitutional. The plaintiffs appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Town of Oyster Bay’s zoning ordinance, as applied to the Williams’ property, was confiscatory and unconstitutional because it prevented them from using their property for any purpose for which it was reasonably adapted.

    Holding

    No, because the plaintiffs failed to demonstrate that their property could not yield a reasonable return if used only for purposes allowed under the residential zoning ordinance.

    Court’s Reasoning

    The Court of Appeals held that a zoning ordinance is confiscatory and unconstitutional only if it prevents a plaintiff from using their property for any purpose for which it is reasonably adapted. The burden of proving the ordinance’s invalidity rests on the plaintiff. The court stated, “If the legislative classification is ‘fairly debatable,’ it must be allowed to control.” The Court analogized the considerations for determining the constitutionality of a zoning ordinance to those used in granting or denying a variance. Referencing the established rule for use variances from Matter of Otto v. Steinhilber, the court highlighted that the plaintiffs needed to show that the land could not yield a reasonable return if used only for a purpose allowed in the zone, that their plight was due to unique circumstances, and that the use authorized by the variance would not alter the locality’s essential character.

    The court emphasized that it is insufficient for the plaintiff to merely show that they would realize a greater return under a less restricted use. The pertinent inquiry is whether the present allowed use is yielding a reasonable return. The court further explained, quoting Matter of Forrest v. Evershed, “In order to establish a lack of ‘reasonable return,’ the applicant must demonstrate that the return from the property would not be reasonable for each and every permitted use under the ordinance.”

    Applying these principles, the court found that the plaintiffs had not met their burden of proof. The evidence was conflicting regarding the property’s reasonable return and adaptation for residential use, as well as whether the neighborhood’s character had changed due to nonconforming uses and traffic conditions. Crucially, the plaintiffs made no attempt to show that the sale of their property for any of the permitted uses other than one-family dwellings would be impossible or economically impracticable. The court distinguished this case from situations, like in Jayne Estates, where the property was in the middle of a commercial area with little chance of the nonconforming uses disappearing. The court concluded that the plaintiffs’ proper avenue of relief would be an application for a special exception from the town board or board of appeals.

  • Matter of Town of Smithtown v. Suffolk County Planning Commission, 36 N.Y.2d 370 (1975): County Authority over Town Zoning

    Matter of Town of Smithtown v. Suffolk County Planning Commission, 36 N.Y.2d 370 (1975)

    A county charter amendment may grant a county planning commission veto power over town zoning changes near municipal boundaries, but the commission must adhere strictly to the voting requirements specified in the charter for such a veto to be effective.

    Summary

    This case concerns a dispute between the Town of Smithtown and the Suffolk County Planning Commission over a zoning change proposed by the town. The County Planning Commission disapproved the change, but the town argued that the commission’s action was invalid. The Court of Appeals held that while the county had the authority to veto the zoning change through a charter amendment, the disapproval was ineffective because it did not receive the required two-thirds vote of the entire commission membership. This case clarifies the balance of power between county and town governments regarding zoning decisions and emphasizes the importance of adhering to procedural requirements in local government actions.

    Facts

    The Town of Smithtown approved a zoning change to allow for an automobile dealership near the Village of The Branch. The Village protested, and the Suffolk County Planning Commission reviewed the change. The commission, which had 13 members appointed out of a possible 15, held a public hearing where nine members were present. The commission voted eight to zero, with one abstention, to disapprove the zoning change. Smithtown then initiated an Article 78 proceeding, arguing that the county’s disapproval was invalid.

    Procedural History

    The Town of Smithtown filed an Article 78 proceeding to annul the County Planning Commission’s determination. The Appellate Division annulled the determination based on a prior case, Matter of We’re Assoc. Co. v. Bear, which held that a similar county veto power was superseded by the General Municipal Law. The Suffolk County Planning Commission appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an amendment to the Suffolk County Charter can grant the County Planning Commission veto power over town zoning changes, superseding Section 239-m of the General Municipal Law.

    2. Whether a vote of eight out of nine members present at a County Planning Commission hearing, where the commission was authorized to have 15 members, constitutes a two-thirds majority required for disapproval under the County Charter.

    Holding

    1. Yes, because Section 1330 of the County Charter, enacted after the relevant amendment to the General Municipal Law, is a valid partial transfer of function from town to county, authorized under the State Constitution and the Municipal Home Rule Law.

    2. No, because the County Charter requires a two-thirds vote of the entire commission membership, not just two-thirds of those present and voting.

    Court’s Reasoning

    The Court reasoned that the State Constitution and the Municipal Home Rule Law empower counties to adopt and amend their forms of government, including transferring functions between different levels of local government. The Court found that Section 1330 of the Suffolk County Charter validly transferred zoning review power to the county, superseding the conditional review power outlined in Section 239-m of the General Municipal Law.

    However, the Court also emphasized that the County Planning Commission’s disapproval was ineffective because it failed to meet the voting requirements of Section 1330 of the Suffolk County Charter. The charter stipulated that disapproval required “a two-thirds vote of such commission.” The Court interpreted this language to mean two-thirds of the entire authorized membership of the commission (15 members), not just two-thirds of those present. Since only eight members voted to disapprove, the requirement was not met, and the town zoning change was deemed approved. The court cited Savatgy v. City of Kingston, 20 N.Y.2d 258 (1967) and Matter of Downing v. Gaynor, 47 Misc.2d 535 (Sup. Ct. Nassau County 1965) to reinforce the principle that “two-thirds vote of such commission” means two-thirds of the entire commission, not merely of those present.

    The Court distinguished the present case from situations where a simple majority is required, noting that the explicit two-thirds requirement necessitates a higher threshold. “Whenever three or more public officers are given any power or authority * * * a majority of the whole number of such persons or officers * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty.” General Construction Law § 41. Because the county charter required a two-thirds vote for disapproval, the simple majority rule does not apply.

    The Court stated, “The statutory language ‘two-thirds vote of such commission’, different and distinguishable from other formulations of the vote required to take action in a deliberative body, has generally been interpreted to require favorable votes of two thirds of the entire commission.”

  • Newport Associates, Inc. v. Solow, 30 N.Y.2d 263 (1972): Air Rights and Zoning Lot Definitions in Leasehold Agreements

    Newport Associates, Inc. v. Solow, 30 N.Y.2d 263 (1972)

    A long-term lease, absent specific restrictions, allows a lessee to utilize the air rights associated with the leased property under zoning regulations, even if the lease does not explicitly grant those rights, and the lessor loses the ability to independently transfer those rights.

    Summary

    Newport Associates (lessor) sued Sheldon Solow (lessee) to prevent him from using the unused air rights above Newport’s property (which Solow leased) for the construction of a building on Solow’s adjacent property. Solow’s lease was long-term. The New York Court of Appeals held that Solow, as a long-term lessee, could utilize the air rights associated with the leased property because the lease lacked any provision restricting his right to do so under the zoning resolution. The court reasoned that under the zoning resolution, Solow was effectively the owner of a single “zoning lot,” encompassing both his fee simple property and the leasehold, and could therefore utilize the floor area ratio associated with that combined lot. The court emphasized that the lease did not reserve air rights to the lessor.

    Facts

    1. Newport Associates owned property at 4 West 58th Street in New York City.
    2. Sheldon Solow leased the property from Newport under a long-term lease expiring in 2052.
    3. Solow owned adjacent parcels at 10-40 West 58th Street and 9-25 West 57th Street.
    4. Solow began constructing a 45-story office building on his property, utilizing the unused floor area ratio (air rights) from the leased property, per a building permit.
    5. The lease between Newport and Solow contained a clause allowing alterations to the existing building with some restrictions, but was silent about air rights.

    Procedural History

    1. Newport sued Solow to determine a claim to real property, arguing the lease didn’t convey air rights and Solow’s construction diminished the value of its reversionary interest.
    2. The trial court granted summary judgment for Solow, holding he was authorized to use the unused floor area ratio.
    3. The Appellate Division reversed, granting summary judgment to Newport, finding Solow’s construction was an elimination of a valuable property right.
    4. The New York Court of Appeals reversed the Appellate Division and reinstated the trial court’s judgment.

    Issue(s)

    1. Whether a long-term lease, absent explicit restrictions, allows the lessee to utilize the unused air rights associated with the leased property for construction on adjacent property owned by the lessee.

    Holding

    1. Yes, because under the applicable zoning resolution, the lessee was effectively the owner of a single zoning lot, and the lease contained no provision precluding the lessee’s exercise of rights under the zoning resolution.

    Court’s Reasoning

    1. The court focused on the New York City Zoning Resolution’s definition of a “zoning lot,” which could include multiple contiguous lots under single ownership, including long-term leases (at least 50 years with a renewal option to total at least 75 years).
    2. Because Solow’s lease met the definition of ownership under the Zoning Resolution, and his properties were contiguous, he was entitled to treat them as a single zoning lot for floor area ratio calculations.
    3. The lease did not contain any provision that precluded Solow’s use of the air rights in question.
    4. The court rejected Newport’s argument that it lost the right to sell its air rights to owners on the other side of the leased property, stating that, given Solow’s ownership and the Zoning Resolution, Newport possessed no such right of sale.
    5. The court emphasized that whatever rights Newport may have had were lost as a result of the zoning ordinance itself, not any violation of the lease by Solow.
    6. Judge Breitel’s concurrence highlighted that Newport lost a valuable asset but failed to reserve air development rights in the lease, a step lessors of long-term leaseholds may want to take.
    7. The court states, “[W]hatever rights that plaintiff may otherwise have had were not lost by any act of the defendant, but rather as a result of the operation of the ordinance. Since defendant did not violate any of the provisions of the lease, plaintiff is not entitled to relief.”

  • 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.

  • Salamar Builders Corp. v. Tuttle, 29 N.Y.2d 221 (1971): Minimum Lot Size and Economic Hardship in Zoning

    Salamar Builders Corp. v. Tuttle, 29 N.Y.2d 221 (1971)

    A zoning ordinance requiring larger minimum lot sizes is constitutional if it addresses a legitimate public concern, such as preventing water pollution, and if the property owner fails to demonstrate that the ordinance deprives them of any reasonable use of their property.

    Summary

    Salamar Builders Corp. challenged a zoning ordinance amendment that increased the minimum lot size from one acre to 1.5 acres, arguing it rendered their property unmarketable. The New York Court of Appeals reversed the lower courts, holding that the increased lot size requirement was a valid exercise of the town’s police power due to legitimate concerns about water pollution from septic tanks in the area. Furthermore, the plaintiff failed to prove the ordinance deprived them of any reasonable use of the property, as their evidence of economic hardship was insufficient to demonstrate confiscation.

    Facts

    Salamar Builders Corp. acquired 70 acres of land in the Town of Southeast, which was initially zoned R-2, requiring 40,000 square foot lots. The company prepared a subdivision map for 44 lots. The town board then amended the zoning ordinance, upzoning the area to R-1, requiring 60,000 square foot lots. Salamar claimed the new ordinance made their property unmarketable because the increased lot size made building economically unfeasible for the type of homes typically sold in the area.

    Procedural History

    Salamar sued to declare the zoning ordinance unconstitutional. The trial court found the ordinance unconstitutional as applied to Salamar’s property. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division and remitted the case to the Special Term for entry of a judgment declaring the zoning ordinance constitutional as applied to the plaintiff’s property.

    Issue(s)

    Whether a zoning ordinance requiring larger minimum lot sizes is unconstitutional when it is alleged to have a significant negative economic impact on a property owner.

    Holding

    No, because the town demonstrated a legitimate public purpose (preventing water pollution) for the upzoning, and the property owner failed to demonstrate that the ordinance deprived them of any reasonable use of their property.

    Court’s Reasoning

    The court reasoned that while zoning regulations must reasonably relate to promoting public health, safety, and welfare, they are a valid exercise of police power. “The ordinance * * * must find [its] justification in some aspect of the police power, asserted for the public welfare”. In this case, the prospect of water pollution from septic tanks due to the area’s topography provided a valid reason for the upzoning. The court emphasized that the ordinance was designed to reduce the number of septic tanks and allow sufficient land area to prevent effluent from seeping into water sources, thus minimizing the danger of pollution. The court applied the rule from Matter of Fulling v. Palumbo, stating that when a property owner suffers significant economic injury from an area standard ordinance, the municipality must affirmatively show that public health, safety, and welfare are served by upholding the standard. However, the property owner must further establish that the hardship deprives them of any reasonable use of the property or destroys the greater part of its value. The court found Salamar failed to demonstrate the ordinance was tantamount to confiscation. The evidence did not support Salamar’s conclusion that they could build and sell houses on one-acre parcels without a loss but would suffer a loss under the increased requirements. The court found that, based on Salamar’s own experts, Salamar would incur a loss regardless of the zoning regulation. The court concluded that while Salamar demonstrated some financial loss, it did not rise to the level of depriving them of “any use of the property to which it is reasonably adapted.”

  • Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971): Area Variances and Self-Imposed Hardship in Zoning

    Overhill Building Co. v. Board of Appeals, 28 N.Y.2d 446 (1971)

    When considering variances from zoning regulations concerning off-street parking, courts apply the rules for area variances, but self-imposed hardships can still be a factor in denying a variance if a legitimate public purpose is served by the zoning restriction.

    Summary

    Overhill Building Company sought a variance to convert parking spaces into office space, which would increase a pre-existing nonconforming use concerning off-street parking. The Board of Appeals denied the variance, citing an attempt to expand a nonconforming use and self-created hardship. The Court of Appeals reversed the lower court’s decision to grant the variance. While the court treated the variance as an area variance, it held that the Board of Appeals did not abuse its discretion in denying the variance because the zoning authorities demonstrated a legitimate public purpose (alleviating traffic congestion) was served by the parking restrictions, and the property owner had not been deprived of all reasonable use of the property.

    Facts

    Overhill Building Company owned a building in a Business A zone of Scarsdale, partially used for apartments and partially for office space. A 1959 zoning amendment required one off-street parking space for every 150 square feet of floor area in buildings constructed before November 1, 1959. This requirement translated to 306 parking spaces for Overhill’s building, but the company maintained only 117, creating a pre-existing nonconforming use. In 1970, Overhill sought to convert 1,850 square feet of parking space into office space, which would eliminate 12 parking spaces and require even more spaces under the ordinance.

    Procedural History

    The Village Building Inspector denied Overhill’s building permit application. The Board of Appeals denied Overhill’s application for a variance. Overhill commenced an Article 78 proceeding, and Special Term annulled the Board’s determination, ordering the permit issued. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a variance request involving off-street parking requirements in a business zone should be treated as an area variance or a use variance.
    2. Whether the Board of Appeals abused its discretion by denying the variance, considering the property owner’s economic injury and the purpose of the zoning ordinance.

    Holding

    1. Yes, because 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.
    2. No, because the zoning authorities demonstrated a legitimate public purpose was to be served by the restrictions placed on respondent’s property.

    Court’s Reasoning

    The court determined that the variance should be treated as an area variance because the intended use (additional office space) was permitted in the business zone. Area variances are evaluated under the standard set in Matter of Fulling v. Palumbo, requiring a showing of significant economic injury to the property owner. If such injury is shown, the zoning authorities must demonstrate that the zoning standard is justified by public health, safety, and welfare. However, the court clarified that this standard does not negate the principle that self-imposed hardships can justify denying a variance.

    The court distinguished Fulling, where all surrounding properties were also nonconforming and the ordinance aimed at neighborhood beautification. Here, the ordinance served a legitimate public purpose: alleviating traffic congestion and promoting public safety. Even though surrounding properties were nonconforming, this purpose justified the parking restrictions. The court found that the Board of Appeals could reasonably determine that increased business space would exacerbate traffic problems. Because Overhill only demonstrated financial loss, not a deprivation of all reasonable use of the property, the Board’s decision was not arbitrary.

    The court addressed Overhill’s argument that the zoning ordinance was facially unconstitutional, finding that an Article 78 proceeding was not the proper vehicle to challenge the constitutionality of a legislative enactment. The proper remedy would be a declaratory judgment action.

  • 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.