HomeMy WebLinkAboutThe Basics - Administrative Appeals, Special Permits & Variances ~oo~
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ADMINISTRATIVE APPEALS
SPECIAL PERMITS
VARIANCES
A PRIMER OF NEW YORK LAW
Christopher C. Maffucci
ADMINISTRATIVE APPEALS
Zoning boards of appeal (ZBAs) are often called upon to
review the specific actions of administrative officials. This
function of the board is called an administrative appeal. For
example, a person aggrieved by a decision of the building
inspector or code enforcement officer may appeal to the
ZBA.
In nearly all cases such persons must appeal to the board if
redress is sought, since they are required to exhaust their
administrative remedies before applying to the courts (see
page 7). The appeal might result from a difference over the
meaning of a code provision, an erroneous factual
determination, a legal error, pure arbitrariness, or, in some
circumstances, administrative inaction. Sometimes the appeal
may be based upon a combination of these reasons.
'line Substance of.Appenl-~
1. Intemretation
Differences over the interpretation of code language form the
basis for a large number of administrative appeals. Even
though most land use ordinances contain a section called
"definitions,*' it is not always helpful. Indeed, it is surprising
how often words and terms, found in that section are
ambiguous or capable of several meanings. The reader is then
left to decipher a word or phrase in the ordinance.
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It is not unusual for the eode's section on definitions to be
completely silent on a question of interest to the landowner.
Those who draft rules and laws, after all, are like the rest of
us; they do not have the prescience to anticipate every
eventuality.
The following examples are an illustrative sampling of
interpretative problems that reached the courts after ZBAs
had already wrestled with them. In most cases, code language
provided little help to the board,
a. Examples
(1) Does a provision that an adult store be located not less
than 500 feet from a residence require that the distance be
measured from the from door of the dwelling or from the
property line of the residential plot?
(2) Does the term "public recreation" as a permitted use in a
residential area mean that the facility has to be publicly
owned or merely used by the public?
O) When a home occupation such as the practice of law is
permitted in a residence provided the lawyer resides on the
premises, must the lawyer reside there permanently or just
transientlf
(4) Is a cellular phone company antenna a public utility, that
is, one engaged in that kind of business?
(5) What is a non-profit institution? Is the IRS definition
controlling for zoning purposes?
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(6) When a lot is located in two zones, is the rear yard
setback measured from the lot line Or the zoning boundary?
In every example except the last, the express language of the
zoning ordinances proved unhelpful, leaving ZBAs largely to
their own resources. A board member tackling such
questions, should, if possible, consult municipal counsel in
order to determine whether the term to be interpreted has
already been examined by the courts. Counsel may find that
the issue has been resolved by a nearby municipality or
~,-~,ther inrisdiction. If so, a court ruling might be
olli g. Board members, applicants and their counsel
would, of course, have already pored over the code, reading
itas a whole and studying the definitions.
Assistance could be obtained from the reports of the
committee that originally drafted the ordinance. Help might
even be found in a dictionary. In the end, however, whether
the person seeking an intelligent interpretation be a board
member, an applicant or counsel, plain common sense and
the ability to use deductive reasoning must be relied upon.
Struggling through interpretations, board members ought to
win that any rational
· considerable co.mfo...rt kl~.o_ g b the courts?
g~a~clusion they reach ~s hkely to be upheld Y
Though there are rules of construction for statutes that guide
lawyers and judges, wide latitude is afforded ZBAs?
Applicants, therefore, must understand at the very beginning,
that board determinations, if rational, will be sustained, for
judges are not generally disposed to substitute their
interpretations for those of board members.
Courts, as you will read below, overruled the ZBA in only
one of the six examples, and in that case the board had
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ignored the express language of the code. A rational basis is
generally all that is needed to support board interpretations.
b. Answers
(1) In the case of the adult store, the court said that the board
was fully within its rights in measuring the distance from the
property line and was not in any way bound by the practice
of the Alcoholic Beverage Control Board, which measures
from the front entrance?
(2) The meaning of the term "public recreation" arose in
connection with a miniature golf course in a residential zone.
The court deferred to the board's interpretation that "public"
meant publicly owned, not publicly used, even though several
other states had reached an opposite conclusion?
(3) Probably either interpretation would be upheld, but an
Albany case hinted that unless the ordinance specified
"primary" residence, a transient occupation of the premises
would suffice?
(4) Substantial evidence supported a board conclusion that a
cellular phone service antenna was a public utility. The
ordinance contained no definition.?
(5) The court affirmed a board finding that a community
facility was a non-profit institution under the zoning code,
even though it was not considered one under the Internal
Revenue Code?
(6) A zoning board erroneously measured a r~ yard setback
from the zoning boundary in spite of the ordinance's language
defining a rear yard setback as follows: open space along the
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rear lot line. The court said the .board was not allowed to
"engraft another interpretation" upon language in the code,
since the meaning was clear and required no interpretation.9
The board clearly ignored the language of its ordinance.
These opinions illustrate the court's deferential posture.
Judicial respect goes so far as to have upheld a board's
determination that an owner could use land under water in the
calculation of off-street parking requirements. In that ease, a
special permit for a swimming pool was granted on a two-
acre lot, though a portion of the lot was under water. CFhe
ordinance exempted lots of two acras or more from its
parking requirements.)~°
Yet, when ZBAs go too far, courts overturn their rulings. If
they will be annulled,
interpretations fly in the face of reason, board's
since courts insist that a reasonable basis support a
conclusion. A ZBA, for example,, denied permission for a
birthing center to locate in a district that allowed "medical
offices, professional buildings, nursing homes, convalescent
homes, and other uses which in the opinion of the board of
appeals are of the same general character..." The court
annulled the determination?
2 Fa~''nlDist~utes/LeealErr°r/AdmgnistrativeArbitrarines~
Administrative appeals need not occur solely as a result of
differences over language. Disputes may arise about a simple
calculation or over an interpretation of the facts themselves;
in other words, a factual dispute or error. An administrative
official may calculate erroneously or use an improper guide
to reach a factual conclusion. In such a case, the applicant
must look to the board for relief. For example, is the cubical
content of the first floor above or below the established
grade? Does the applicant have sufficient frontage?i: Such
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questions can lead to simple error.
The factual error may be coupled with (or derive from) an
erroneous interpretation of the law. Has 50% of a
nonconforming use been destroyed, or has it been abandoned
by an affirmative, voluntary act as the ordinance requires?
In the review of such administrative action, zoning boards
necessarily find themselves weaving factual conclusions and
legal interpretations together in order to reach an intelligent
result.
A building inspector may also have the wrong view of the
law. He might mistakenly refuse to issue a building permit
simply because the premises could easily be converted later
into an illegal use.~4 The building inspector's action (or
inaction) constitutes legal error and is reviewable by the
ZBA, though no interpretative problem or factual error is
involved.
Although the Planning Board and the Historic Commission
had already approved the conversion of a church into 16
apartments, one building inspector denied the certificate of
occupancy on the grounds that, in his opinion, traffic would
be increased. He felt this to be contrary to the intention of the
ordinance. This exercise of discretion is beyond the power of
a ministerial official. The board, in agreement with the
inspector, then erroneously upheld the denial, but the court
reversed the determination.~ Such legal error by both the
official and the ZBA borders on arbitrariness.
3. Inaction
Courts have held that an administrative official's refusal to act
at all is grounds for a direct appeal to the courts, without first
resorting to the ZBA. The exhausting administrative remedies
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requirement before commencing court action does not usually
apply in such a case (see next page).
Years ago, a party so aggrieved by an official's failure to act
sought relief directly from the courts by way of a writ of
mandamus, an order of the court commanding officials to
perform a ministerial duty. Today, mandamus relief is
incorporated in an article 78 proceeding (see page 38), though
the term "mandamus" is still used by lawyers and judges.
On those rare occasions, when administrative officials refuse
to perform a ministerial duty, they are subject to this kind of
court order, even though their reasons may be simply
misguided or the result of confusion or neglect.
Exhaustion of Remedies and Ripeness
The doctrine of exhaustion of remedies requires that an
aggrieved party first pursue all available administrative
remedies before seeking judicial relief. There are a few
exceptions to the rule, such as administrative inaction
(mandamus) discussed above.
In a recent ease, when the New York City Building
Department refused to issue a certificate of occupancy, the
exhaustion of remedies doctrine was held to be inapplicable.
The judge, allowing the landowner's direct appeal to the
courts,~6 ordered the city to issue a certificate of occupancy.
Since the Department had engaged in dilatory behavior, no
resort to the administrative process was required.
An important warning, however, is worth mentioning: courts
have held that this relief (mandamus) cannot be used to short-
cut the administrative process,t? though it must be admitted
that this fine line is not always easy to discern.
One authority has stated the general rule that when a genuine
case of inaction exists and the applicant is clearly entitled to
a building permit or some other, municipal certificate, the
doctrine of exhaustion of remedies does not apply,i*
In such cases, the aggrieved party may go directly to the
courts, but the local zoning ordinance by its terms may negate
this exception to the exhaustion of remedies doctrine. As a
condition to court relief it could require an appeal directly to
the ZBA.
The rule of exhaUStion or remedies limits not only the
applicant, but objectors as well. In a case illustrating how
far-reaching this doctrine can be, neighbors brought an action
to annul a code interpretation made by the ZBA. Since no one
questioned the board's interpretation at the hearing, everyone
had proceeded on the basis of the board's reading of the
ordinance. By failing to raise the issue before the board, the
neighbors had not exhausted their administrative remedies,
and, as a result, the court refused to hear their petition,t9
I. Challenges to Cot~t~!,_,__n_'onalitv or Le~alily
Coustitutional issues and challenges to the legality of zoning
ordinances provide other exceptions to this doctrine. When
such issues 'must be decided, aggrieved parties can only
proceed directly to the courts, since ZBAs are not permitted
to consider these questions.
2. Rioeness Distinguisb_e,t
Finally, exhaustion of remedies should not be confused with
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peness, which deals with the question of finality. Thus an
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appeal to the courts may be "premature' if a final board
determination has not been made. The Court of Appeals did
its l~st to e~pl~in the difference between the two in John A.
Ward v. Roger Bennett?
"Ripeness," it said, "pertains to the administrative action
which produces the alleged harm to the plaintiff; the focus is
on the finality and effect of the challenged action and whether
harm from it might be prevented or cured by administrative
means available to the plaintiff." Ripeness, the court said,
"does not occur until the government entity charged with
implementing the regulations has made a final decision
regarding the application of the regulations to the property at
issue, and has arrived at a definite position on the issue that
inflicts an actual concrete injury."
Ripeness is clearly designed to deter applicants from seeking
judicial review when proceedings are in an intermediate or
speculative stage. The exhaustion of remedies doctrine, on
the other hand, aims at making the applicant employ the full
administrative chain of decision-making before approaching
the courts.
Where one agency is exclusively empowered to make a
determination, its decision is usually final and ripe. Ward
confirmed that the matter is not made less ripe because relief
may be granted' by a parallel or distant agency. Nor does the
· existence of other administrative remedies deny the right of
the court to hear the ease, if all avenues of review of the
original determination have been exhausted.
The doctrine of exhaustion of remedies implies that a direct
line of decision-making exists for the applicant to follow. The
applicant need not depart from this line. into a bureaucratic
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quagmire. The court in Ward cautioned that the ripeness
doctrine does not impose a "threshold barrier requiring
pursuit of all possible remedies that might be available
through myriad government agencies." The court might have
added that the same holds true for the exhaustion of remedies
doctrine.
Due Process Concerns
Nonconforming uses often raise questions decided by an
administrative appeal (See Chapter IV). They present
problems for boards simply because in most cases no
adequate municipal procedure has been established to deal
with nonconformity. Administrative officials performing
ministerial functions, who have no discretionary authority to
determine whether a use is nonconforming, are often called
upon to ferret out the facts. An owner's intention to abandon
or discontinue a nonconforming use is the kind of question
that should not be resolved by ministerial officials? Yet
under many codes, this questionable practice persists.
Due Process requires that discretionary determinations based
upon an inquiry into facts and circumstances, like one that
ascertains whether a use predates the ordinance, be preceded
by a formal hearing with the attendant notices and
protections. Since ministerial officials cannot usually hold
such earmgs, these Issues should find their way into zoning
h ' '
board hearing rooms. Although its jurisdiction is said by the
statute to be "appellate only,"" the ZBA actually conducts de
novo hearings on questions of nonconfgrmity' In such cases,
it must weigh the evidence presented.~ For want ora better
term, these nonconformity hearings are labeled administrative
appeals.
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COMMENT: It is not clear what is being appealed,
since the building inspector's authority to grant or deny
a nonconforming use is highly debatable. The reality is
that the so-called administrative appeal becomes, in
effect, an exercise of original juns' ~ction, a ZBA trial of
the issues in the first instance.
The fiction continues that the board, in hearing the facts
for the first time in nonconforming cases, is engaged in
reviewing administrative action. The misconception is
encouraged by the statutory requirement that an
administrative official's denial (or grant) be a condition
precedent to any application to the board. It is
maintained that this statutory requirement converts the
process into an appellate one. If the denial requirement
has any purpose, however, it is simply to promote
bureaucratic efficiency. The same logical inconsistency
applies to variances. See the Denial Prerequisite on the
next page.
Registration of nonconforming uses is now virtually non-
existent, although a few municipalities, especially large cities,
have established formal procedures for issuing certificates of
nonconformity. 'By local law, the New York City Board of
Standards and Appeals is empowered to hold hearings on
applications for nonconforming use certificates, a procedure
that circumvents administrative action and dispenses with
most due process concerns. It also relieves building
department officials of unnecessary burdens and tends to
avoid friction and dissatisfaction.
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The Denial Prerequisite and Who May
Appeal
1. The Reauirement o£ Administrative Action
When an administrative official makes a decision involving
the zoning law and that decision aggrieves someone, the party
aggrieved may take the case to the ZBA. Thus, the
administrative official's action triggers the appeal to the ZBA.
In its administrative capacity the ZBA may also appeal its
own determination to a higher court (Commco v. ,4melkin,
cited in note 26).
The ZBA, however, cannot appeal the annulment of its own
quasi-judicial determination. Yet this distinction is not
clear, and a difference of opinion exists among the judges of
this state's highest court. Since ZBAs are increasingly seen as
acting in a quasi-judicial capacity, serious questions arise as
to whether they will retain the right to appeal the annulment
of their own determinations.
Most commonly, the process leading to a ZBA hearing begins
with the denial of a permit or other municipal certificate
(although under the newly codified statute [274-b of the Town
Law and comparable sections of the Village Law and the
General City Law,] a denial is not a necessary prerequisite
for a special permit). After the denial, the aggrieved person,
or entity, may bring the matter to the ZBA's attention. The
status of an aggrieved person (appellant), however, is not
limited to one who has been denied.
There are times when parties are aggrieved by the granting
of a permit or certificate. In fact, it should be noted that in
rare instances, the municipality itself (or one of its officers,
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departments, boards or bureaus) may be aggrieved and appeal
to the ZBA. This may happen because the municipality
disputes the action of an administrative official. Finally, it
should be mentioned that municipalities have also been known
to appeal ZBA determinations to the courts.
The idea that local government is a monolithic, entity,
dispensing or withholding favors with harmonious unanimity,
may still be held by some segments of the public at large. In
fact, the ZBA, as a quasi-judicial body, should be, and
generally is, insulated from political Influence that may arise
in other branches of local government.
That is not to say, however, that community pressure plays
no role in board determinations. The proper limits of this
kind .of pressure are difficult for courts, which are far
removed from the scene, to ascertain. They ask boards to
perform the difficult task of making detached decisions
without caving in to the community's generalized objections.
Vocal non-specific objections, however, have on occasion led
boards and other officials to perform strange intellectual
aerobatics. In one case, a township (the legislative body)
actually justified the denial of a special permit on the grounds
that its own ordinance provision was illegal, a strange
argument indeed. The court rejected this claim, but not the
right to make it? In another case, a building inspector,
apparently under some form of civic pressure, took his own
opinion to the ZBA for review. He discovered he was not
allowed to appeal in order to reverse his own decision?s
An aggrieved party (one who has the right to bring an
administrative appeal) may be the property owner, or one
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who has a property interest in the premises, such as a tenant,
contract vendee, or a mortgagee? The rules of standing
govern who may come into the courtroom and commence,
answer or intervene in a lawsuit.
While the rules governing standing define who may sue or
answer in a court of law, it would appear that the same rules
govern who may come before a ZBA as well.
In a zoning dispute, when applied to persons or entities with
no property interest 'in the subject premises, standing rules
become somewhat complex. One adjoining the subject
premises, or in close proximity thereto, would, of course,
ordinarily have standing to seek relief before the board or in
the courts?
Distant neighbors, trade associations, environmental groups,
or civic associations, which seek relief in the courts, must
usually show a special damage beyond that suffered by the
community at large?
In some cases, however, it has been held that where the party
has a particular relationship to the subject premises, a
presumption of standing arises so that special damage need
not be shown?
These persons and organizations, however, still need to
demonstrate, in addition, that their injury was within the zone
of interest the statute in question was designed to address?°
These standing rules are generally of more concern to
counsel than to board members.
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Stare Decisis and Res Judicata
Two principles of Anglo-Saxon law, stare decisis and res
judicata, apply to administrative appeals. These Latin words
convey simple principles. Stare decisis (to stand by things
decided) means only that once a precedent is established, it
must be followed in the future. For many years, it was
believed that this principle did not apply to administrative
bodies like zoning boards. That belief is no longer tenable.
Rbs judicata (the matter is judged) means that the court or
board, havi.ng made its determination, will not hear a further
trial of the issues of a case (although it may entertain a
petition to reargue).
These two principles are dealt with in somewhat more detail
in the Chapter m on Variances.
ADMINISTRATIVE APPEALS Notes for Chapter
1. Interpreting the phrase "personal services' in a zoning
code, the court resorted to Webster's, which defined the term as
'economic service involving intellectual or manual personal labor
rather than a salable product." T~is resulted in the exclusion of a
mini-storage facility from a GB General Business District which
allowed personal service stores. The court upheld the board
interpretation. Matter of Briar Hill Homes v. Town of Ossining
ZBA, 142 AD2d 578 [2nd Dep't], 529 NYS2d 911 (1988).
2. A board, finding composting to be a COmmercial (not
agricultural) activity was upheld by the ceurt in Matter of Moody
Hill Farms, Inc., 199 AD2d 954 [3rd Dep't], 605 NYS2d 560
(1993), reversed on other grounds, 83 NY2d 755 (1994).
3. The language "such as but not limited to' is usually a term
not of enlargement, but of 'general similitude," indicating matters
of a like kind, said the court, upholding a board determination in
Matter of Briar Hill Homes, Inc. v. Town of Ossining ZBA, 142
AD2d 578 [2nd Dep't], 529 NYS2d 911 (1988).
4. Cupid's Video Boutique, Inc. v. Roth, 203 AD2d 70 [lst
Dep't], 610 NYS2d 24 (1994).
5. Matter of Richards, Putnam County Supreme Court, New
York Law Journal (1/22/92). Illinois and Alabama allowed
miniature golf courses in a residential zone.
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6. Criscione v. City of Albany, 185 AD2d 420 [3rd Dep't],
585 NYS2d 821 (1992).
7. pwjne v. Taylor, 178 AD2d 979 [4th Dep't], 578 NYS2d
327 (1991); Cellular Phone Company V' Rosenberg, 82 NY2d 364,
604 NYS2d 895 (1993).
8. Joint Committee w Maintain Building Standards v. Silva,
Queens County Supreme Court, New York Law Journal (7/14/93).
9. Americo Tallini v. Henry Rose et al. Nassau County
Supreme Court, 1994 N.Y.AD Lexis 9278 [2nd Dep't], 617
NYS2d 34 (1994).
10. Vezza v. Bauman, 192 AD2d 712 [2nd Dep't], 597 NYS2d
418 (1993).
11. Matter of Levada, 199 AD2d 504 [2nd Dep't], 605 NYS2d
397 (1993).
12. Baer v. Waterford, 186 AD2d 850 [3rd Dep't], 587 NYS2d
817 (1992).
13. Matter of Pelham Esplanade, Inc. v. Board of Trustees Of
the Village of Pelham Manor, 77 NY2d 66, 563 NYS2d 759
(1990); Prudence v. Town of Ithaca ZBA, 195 AD2d 662 [3rd
Dep't], 599 NYS2d 749 (I993).
14. Matter of John Di Milia v. Roger Bennett, 149 AD2d 592
[2nd Dep't], 540 NYS2d 274 (1989).
'15. ~ Hughes v. ZBA of Ca~.tleton, 191 AD2d 784 [3rd Dep't],
594 NYS2d 416 (1993).
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16. Matter of DelafieM 246 Corporation, Bronx County
Supreme Court, New York Law Journal (9/28/94).
17. See Anderson, New York Zoning Law and Practice, Section
22.20 (2nd Ed.).
18. Rathkopf, The Law of Zoning and Planning [4th EdJClark-
Boardman-Callaghan, Deerfield, Ill., 1994, Section 44.05 [4].
19. Klingman v. Miller and McGraw, 168 AD2d 856 [3rd
Dep't], 564 NY$2d 526 (1990).
20. Ward v. Bennett, 79 NY2d 394, 583 NYS2d 179 (1992).
21. See Baeder v. Town of Aurelias, 184 AD2d 1045 [4th
Dep't], 584 NYS2d 701 (1992).
22. See Town Law, 267-a and cOmparable sections of Village
and General City Laws.
23. See Wemett v. ZBA of City of Rochester, 178 AD2d 975
[4th Dep't], 578 NYS2d 735 (1991).
24. Avis v. Mondello, 193 AD 2d 599 [2nd Dep't], 597 NYS2d
161 (1993).
25. Gaylord DiSposal Service v. ZBA Town of Kinderhook, 175
AD2d 543 [3rd Dep't], 572 NYS2d 803 (1991).
26. Henry Norman Associates, Inc. v. Ketler, 16 Misc.2d 764,
183 NYS2d 875 (1959), a contract vendee; Commco, Inc. v.
/~tnelkin, 109 AD2d 794 [2nd Dep't], 486 NYS2d 305 (1985), a
cOnditional contract vendee, Eckerman v. Murdoch, 276 AD 927,
94 NYS2d 557(1950), a mortgagee.
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27. One living approximately 1000 feet from the subject parcel
was held to have standing in Di Loretto v. Stoclonan, 123 Misc2d.
977, 474 NYS2d 899 (1984).
28. santulli v. Drybka, 196 AD2d 862 [2nd Dep't], 602 NYS2d
151 (1993); Roistacher v. Council of the City of New York, 199
AD2d 68, [lst Dep't], 604 NYS2d 115 (1993).
29. To this effect, see Cedar Grove Civic Homeowners
Association v. Maul, Queens County Supreme Court, New York
Law Journal (9/15/94), and $unbrite Car Wash, 69 NY2d 406,515
NYs2d 418 (1987). In the latter case, a neighbor's standing was
disallowed because his only objection was fear of business
competition. Such a claim was not within the stamte's zone of
~ntorest
30. Otsego 2000 v. Planning Board of the Town of Otsego, 171
AD2d 258 [3rd Dep't], 575 NYS2d 584 (1991) Iv. denied 79 NY2d
753; Society of the Plastics Industry v. County of Suffolk, 77 NY2d
761,570 NYS2d 778 (1991).
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SPECIAL PERMITS
A second ZBA function is the issuance of special permits.
Also called special exceptions or conditional uses, they are
sometimes confused with variances. Spedal permHs are
authorizations for landowners to use their property in a
way the ordinance allows, if certain code conditions are
met. Variances, discussed in the next chapter, authorize
landowners to use their property in a way not allowed by the
ordinance.
Special permits are usually much easier for landowners to
obtain than variances, primarily because they require a lesser
standard of proofd In most cases, no hardship must be
proved in order to obtain a special permit, since the applicant
only has to show compliance with the conditions set forth in
the ordinance.
Authority
The authority to grant special permits is sometimes vested by
local law in other agencies, i.e. the local planning board or
in the legislative body itself (the board of trustees, board of
supervisors or city council). New York State Village Law
(Town and General City Law provisions are comparable)
reads as follows:
"The village board of trustees may as part of a
zoning law adopted pursuant to this article or other
enabling law, authorize the planning board or such other
21
administrative body that it shall designate to grant special
nse permits...." 2
This special permit procedure came into being because those
who drafted zoning ordinances felt there were uses which,
though generally permissible, required oversight on a case by
case basis. In addition to the other uses expressly permitted
as of right in a particular district, special permit uses are
allowed only if the applicant fulfdls certain specified
conditions, sometimes referred to as standards. In that way,
it was thought, the board and the municipality gained an
appropriate degree of control.
Special permits generally pertain to the actual use of the land
(and buildings) and not to its dimensional and physical
requirements, but nothing forbids special permits from being
authorized for such purposes. Permits which enable
landowners to deviate from area and height restrictions are
more common in other jurisdictions, but the practice is not
unknown in New York. A Buffalo case involved a special
permit to waive a height limitation?
Complying with Conditions (Standards)
When the special permit procedure is delegated to the ZBA,
its primary duty is to determine if the permit conditions set
forth in the ordinance have been met by the applicant. The
failure of the applicant to fulfill any of the conditions
generally requires that the permit be denied.'
On the other hand, if the applicant has, in fact, fulfilled the
conditions in the ordinance, a strong presumption then exists
in favor of granting the permit? Even though the board may
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feel that the neighborhood will be adversely affected, its
denial of a special permit will be annulled if the record is
devoid of substantial proof to that effect.6 The landowner has
no absolute right to the permit?, but court~ have warned that
denials cannot be sustained on the basis of generalized
objections; substantial evidence is required.8 To deny an
application when the conditions of the ordinance have been
met requires a showing that the proposed use would have a
greater adverse effect on the neighborhood than other
permitted uses?
Although applicants who comply with code conditions are
usually granted permits, denials are occasionally justified.
Courts have sustained board denials of special permits even
though the conditions set forth in the ordinance were fulfilled,
when expert evidence had established that the particular use
sought to be permitted would cause an exceptional threat to
the health, safety or welfare of the neighborhood or
community,l° A denial was upheld where the board had found
traffic conditions would be exacerbated to a point beyond
what other permitted uses would generate,n In one case, a
board pushed its authority to the limit, denying a special
.permit for a shopping center's game room on the grounds that
Jt constituted a nuisance caused by teenagers gathering at a
mall. This determination was overturned?
Traffic is an important issue in most of these cases, but to
deny a permit on the grounds of increased traffic, courts
demand expert proof for support,la A board, for example,
cannot deny an application for a special permit only because
it fears traffic congestion will result,u Nor can it deny a
permit (or a variance, for that matter) simply because the
applicant had previously violated the code,is or if the
23
~roposed use is not a ~traditional" one? Boards frequently
.are~ faced with vociferous opposition on special permit
.,al~lclitions, but they cannot deny permits on the basis of
community pressure or the generalized objections of
neighbors.17
While the conditions set forth in the code are the primary
criteria for the issuance of special permits, courts have
warned that the standards must not be an exercise in
tautology; they cannot be so loosely flamed as to be
meaningless? Board denials have been overturned on the
grounds that there were no standards at all? Indeed, the line
is hazy between standards that are nothing more than facile
generalities and words providing specific guidance. Vague
standards inevitably make the board's task more difficult and
increase litigation.
Courts, however, have shown a remarkable tolerance for
generalized standards, particularly for uses the community
regards as especially unpleasant. A standard which allowed
permits for gasoline service stations "after public notice and
hearing and after taking into consideration the public health,
safety and general welfare" was upheld in a 45-year-01d
case.26
One slightly less broadly worded standard ("any use of the
same general character as any of the uses expressly
permitted") was held in a more recent case to provide a
sufficient basis for the board to deny a special permit for a
machine shop. The board said: ~the use will prevent the
orderly and reasonable use of adjacent properties." The court
agreed, but the dissenting judge accused the board of
buckling under to local pressure?~
24
Despite these cases, the message repeatedly conveyed is that
special permits are not to be denied lightly. A strong
presumption for issuance exists once proof is submitted that
the code conditions have been met. Of course, the burden is
on the applicant to establish that the conditions have been
fulf'dled. To support a denial at that point, courts increasingly
ask for a significant amount Of high quality evidence
justifying the denial.
The amount of proof required can be gleaned from one case
where a board denial of a special permit for a utility
substation was overturned.:: The board had based the permit
denial on an expert witness' allegations about the dangers of
electro-magnetic fields, particularly their harmful effects on
children. The court, which seemed to scoff at the expert's
claims (not refuted by the utility company), ordered the
permit issued. This result may also be explained by the
court's skepticism about the danger posed by electro-magnetic
fields, as well as its desire to accommodate certain uses, i.e.
public utilities. (See Chapter III on Variances, pages 81-83).
2. Board-lrnt~osed Condiffottv
As in the case of variances, boards may impose their own
reasonable conditions on the granting of special permits (See
Chapter III on Variances, page 72 et seq.). Although a
special use may be permitted under the ordinance, the hoard
still retains this authority to lay down its own conditions in
individual cases.
These conditions are made in addition to those which are
contained in the ordinance itself and which are required to be
fulfilled if a permit is to be issued.
25
Conditions imposed by the board must be related to a zoning
objective and have a connection or "nexus" with the impact
caUsed by the proposed development. It is probable that the
recent decision by the U.S. Supreme Court in Dolan v. City
of Iigard, 114 S.Ct. 2309 (1994), will result in an even more
stringent test. The court ruled that besides having the
necessary *nexus", the condition will have to be "roughly
proportional" to the impact of the proposed development.
The connection, therefore, must be reasonable and not too
tenuous.
The rules governing these board-imposed conditions are
similar to those mentioned in Chapter III on Variances, but
there are differences. Sometimes restrictions may be imposed
on permits that would not be allowed with respect to
variances. For example, special permits for accessory
apartments are often limited as to time and ownership by
local law.
A town may enact a local law that limits the issuance of
special permits to a restricted number of single-family
homeowners, such as those who occupy their own homes?
In another case, a permit (issued by a special board) for an
accessory apartment was limited to two years and terminated
on the death of the owner, or upon the transfer of ownership.
The court upheld these conditions? Unless provided for by
local law, however, the authority of boards to impose time
limits on special permits is doubtful?
Conditions as to ownership are impermissible in the case of
variances, since variances run with the land. (Some doubt
remains whether time limits imposed upon variances are legal
or not.) Nevertheless, in view of recent U.S. Supreme Court
decisions, boards are cautioned not to wander too far afield
26
when imposing conditions, even for special permits. In an
application to repair a nonconforming building, for example,
the board imposed four conditions that presumably restricted
the use of the building for seasonal use only. The court found
.these conditions arbitrary? Yet such a condition was allowed
m an older case concerning a beach community, where they
were found reasonable?
While it is the policy of the courts to give ZBAs a wide
berth, judges retain a watchful eye for conditions that lead to
the board's over-involvement in the details of business
operations. One court rejected board-imposed business
restrictions on a special permit to sell and make minor repairs
on used cars.:* In another instance the court flatly disallowed
limitations placed on a wholesale florist business concerning
the number of trucks, employees, the hours when deliveries
could be made, etc?
Simultaneous Relief
(Special Permits and Variances)
It was once the law that an applicant for a special permit
could not at the same time make an application for a
variance? For example, prior to the codification, if a special
permit were authorized in a district where the particular use
was required to have at least 20 off-street parking spaces, the
applicant could not simultaneously ask the board for the
special permit and a parking waiver.
Nor could the applicant simultaneously apply for an area
variance to reduce a side yard requirement. It now appears
that an applicant may do so.3~ The difficulty seems to have
been alleviated by the 1992 statute, for it contains the
27
following provision:
"Notwithstanding any provision of law to the
contrary, where a proposed special use permit contains
one or more features which do not comply with the zoning
regulations, application may be made to the zoning board
of appeals for an area variance .... without the necessity of
a determination of an administrative official charged with
the enforcement of the zoning regulatious/'3:
COMMENT: This provision, designed to give boards
rn~re flexibility in the administration of the zoning law
in general, and of special permits in Particular, awaits
court interpretation as to its exact meaning. It speaks
only of waiving the need for prior administrative action.
Yet, at the same time, the statute assumes that the board
can grant variance relief in a special permit proceeding,
though it is problematic that a variance could be
secured from the code requirements that condition the
special permit.
To vary the standards and conditions that set the
parameters for a special permit would negate the whole
special permit process. One court, though not
addressing the problem specifically, has strongly hinted
that it would not allow such a variance.
That court found the ZBA without authority to grant a
variance of a prohibition against motor vehicle service
stations within lO00 feet of each other. The prohibition
was part of another section of the ordinance and not
written in express language indicating it to be a
28
condition for special permit issuance.~3 The ZBA was,
however, required to first obtain planning board consent
before issuing a special permit.
Revocation of Permits
After substantial work is performed on the premises, a special
permit may not be revoked. This follows from the theory that
the owner's rights have become vested. In one case, a newly
elected City Council, revoked an extension of a previous
administration's permit before work had been completed. The
court upheld the Council's action, but it should be noted that
this was a legislative body, and not a ZBA.~
Courts have for some time distinguished between the power
of legislative bodies and ZBAs in this area. Still, it is
probable that a ZBA would also have the power to revoke or
extend a special permit, though it would have to show just
cause for a revocation. No clear statutory authority exists
which casts any light on this problem; nor has a case arisen
that spells out a ZBA's power to revoke a special permit. A
revocation, at any rate, does not foreclose another
application.
Permits (Legislature v. ZBA)
Since the courts have in the past treated legislative bodies in
a fashion different from ZBAs (and other quasi-judicial
agencies), some confusion arose as to the rules governing
special permits. Boards of trustees and boards of supervisors
were often held to have untrammeled discretion in the
granting of special permits, a discretion much broader than
that held by ZBAs. It appeared that these governing
29
~agencies, unlike ZBAs, could issue or deny special permits at
their pleasure without any standards at all?s Though courts
still pay lip service to this principle, questions persist as to
whether it still exists, and if so, to what extent.~
It is generally assumed that New York takes the minority
view, i.e. that legislative bodies have untrammeled discretion.
Yet when they depart from their traditional role and act as
qu~i-judicial bodies, legislative bodies appear to be
increasingly !reared as ZBAs and subject to the same rules??
Inlay event, ZBAs have never had the untrammeled
discretion attributed to legislatures. ZBAs, when hearing
applications for special permits, are governed by the rules set
fo~ in this chapter.
ConSents
In general, the court's position on the requirement that
neighbors' consent must precede the grant of a special permit
is the same as that governing variances (unfavorable, except
for nuisances and dangerous occupations). Special permits
conditioned on planning boards' prior consent are perfectly
proper. As to the question of consents as a prerequisite to
ZBA action. (See Chapter III, Variances, pages 75-76.)
SPECIAL PERMITS
NotesforChapterll
1. 'The burden of proof on an applicant for a special
exception is much lighter than that raquired for a hardship
variance,' North Shore Steak House v. Board. of Appeals, 30 NY2d
244, 331 NYS2d 645, 649 (1972). See also Dil-Hil Realty Corp. v.
Schultz, 53 AD2d 263 [2nd Dap't], 385 NYS2d 324, 327 (1976)
and Matter of J. P.M. Properties, Inc. 204 AD2d 722 [2nd Dep't],
612 NY$2d 634 (1994).
2. Village Law§ 7-725-b [2]. See also Town Law §274-b [2].
Note a special use permit is defined as an autho~ization...subject to
conditions permitted by local law. As stated in the text, this does
not mean that the conditions (or standards) can be so general that
board discretion goes unchecked. See a warning to this effect by the
Court of Appeals in Tandem HoMing Corp. v. BZA Hempstead, 43
NY2d 801,802, 402 NYS2d 388 (1977).
3. Mandis v. Gorski, 24 AD2d 181 [4th Dap't], 265 NYS2d
210 (1965).
4. Calabro v. Town of Oyster Bay ZBA, 198 AD2d 27412nd
Dap't], 603 NYS2d 542 (1994).
5. Matter of Capri, 195 AD2d 506 [2nd Dap't], 601 NYS2d
821 (1993), leave denied 82 NY2d 660. 'Normally a reviewing
board is required to grant a special permit unless there are
reasonable grounds for denying it." Matter ofJ. P.M. Properties,
Inc., 204 AD2d 722, supra.
30
6. Master Billiard Co., Inc. v. Rose 194 AD2d 607 [2nd
Dep't), 599 NYS2d 68 (1993).
7. Tandem v. BZA Hempstend, 43 NY 801,402 NYS2d 388
(1977). There was proof that a private parking lot in a residential
zone would "significantly alter the character and quality of the
surrounding residential area, diminish property values and increase
traffic congestion.'
8. Leisure Time Billiards, Inc. v. Rose, 201 AD2d 340 [lst
Dep't], 607 NYS2d 312 (1994).
9. North Shore Steak House v. Board of Appeals 30 NY2d
238, 331 NYS2d (1972); Leisure Time Billiardz, Inc. v. Rose, 201
AD2d 340, supra.
10. Tandem HoMing Corp. v. BZA Hempstead, 43 NY2d 801,
402 NYS2d 388 (1977); Market Square Properties, l.~d. v. Town of
GuiMerland ZBA, 109 AD2d 164 [3rd Dap't], 491 NYS2d 519
(1985), "would create risks to the safety of school children. W;
Veysey v. ZBA City of Glens Falls, 154 AD2d 819 [3rd Dap't], 546
NYS2d 254 (1989), "imperil the safety of children."
11. Matter of Serota, 198 AD2d 507 [2nd Dep't], 605 NYS2d
930 (1993), "volume of traffic...would far exceed that generated
by any other unconditionally... ~ permitted use.
12. Gardiner v. LoGrande, 83 AD2d 614 [2nd Dep't], 441
NYS2~I 288 (1981), aff'd 60 NY2d 673, 468 NYS2d 104.
13, See Burke v. Denison, 203 AD2d 642 [3rd Dap't], 609
NYS2d 959 (1994), and Matter of Serota 198 AD2d 507, supra.
See also RPM Motors v. Gulotta, 88 AD2d 658 [2nd Dap't], 450
31
NYS2d 525 (1982), 'influx of trucks not supported by the record.'
14. Robert Lee Realty v. Village of Spring Valley, 97 AD2d
441 [2nd Dep't], 467 NYS2d 823 (1983).
15. See Pokoik v. Silsdorf, 40 NY2d 769, 390 NYS2d 49
(1976) (a building permit) and Halstead Ave. Realty Corp. v.
Holtzman, 55 AD2d 901 [2nd Dep't], 390 NYS2d 215 (1977) (a
variance).
16. Burke v. Denison, 203 AD2d 642 supra.
17. The rule that community or neighborhood pressure will not
support a permit denial is cited in judicial decisions too many times
to mention. For a sample: see Matter of Markowitz, 200 AD2d 673,
[2nd Dep't] 607 NYS2d 705 (1994); Matter ofC& A Carbone, lnc
v. Holbrook, 188 AD2d 599 [2nd Dep't], 591 NYS2d 493 (1992);
Orange & Rockland Utilities, Inc. v. Town of Stony Point, Rockland
County Supreme Court, New York Law Journal (7/12/93), and
Pleesant Valley Home Construction Ltd. v. Van Wagner, 41 NY2d
1028, 395 NYS2d 631(1977).
18. Tandem HoMing Corp. v. BZA Hempstead, 43 NYS2d 801,
402 NYS2d 388 (1977).
19. Shephard v. ZBA City of Johnstown, 92 AD2d 993 [3rd
Dep't],461 NYS2d 479 (1983). Nconsideration to the effect upon
public health, safety... N held to be no standards at all.
20. Contra to Shephard in note 19 is Aloe v. Dassler, 278 AD
975 [2nd Dep't], 106 NYS2d 24 (1951). The court felt that gasoline
filling stations weren't intended to be permitted in the zone and thus
upheld vague language as a standard ('after taking into
consideration the public health, safety and welfare... ').
32
21. Again illustrating the 2nd Department's tolerance for loose
standards is Roginski v. Rose, 97 AD2d 417 [2nd Dep't], 467
NYS2d 252 (1983).
22. Orange & Rockland Utilities, Inc. v. Town of Stony Point,
Rockland County Supreme Court, New York Law Journal
(7/12/93).
23. Kaspar v. Town of Brookhaven, 142 AD2d 213 [2nd
Dep't], 535 NYS2d 621 (1988).
24. Sherman v. Frazier, 84 AD2d 401 [2nd Dep't],446
NYS2d 372 (1982). As noted in the text, the local ordinance was
enacted pursuant to a home rule law. That law created a special
board to hear matters concerning accessory apertments.
25. Anderson, American Law of Zoning,3rd Ed., Lawyers
Cooperative Publishing Company, N.Y., 1986, Sec. 21.33, citing
Corsetti v. ZBA, 59 AD2d 1018 [4th Dep't], 399 NYS2d 751
(1977),in which the ordinance allowed time constraints. See also
Rohan, Zoning and Land Use Controls, Matthew Bender, N.Y.,
1994, Sec.40.04 (1), citing Scott v. ZBA of Salina, 88 AD2d 767
[4th Dep't], 451 NYS2d 499 (1982), where there was no legislative
authority for the time limitation.
26. Allen v. Hattrick, 87 AD2d 575 [2nd Dep't], 447 NYS2d
741 (1982).
27. Burke v. Cohen, Supreme Court, Richmond County, 13
NYS2d 984 (1939).
28. Re One Stop Auto Repairs of Queens, Inc., Queens
County Supreme Court (Katz, J.). New York Law Journal (2/5/91).
The board had restricted the weekend hours of operation and had
limited repair work to preparing used ears for sale. The court
disapproved.
33
29. Schlosser v. Michaelis, 18 AD2d 940 [?.nd Dep't], 238
NYS2d 433 (1963),
30. Matter of Folz Vending (Rose), Nassau County Supreme
Court. New York Law Journal (10/15/92). In Vergata v. Town
Board of Oyster Bay, 1994 A.D. Lexis 11177 [2nd Dep't], 618
NYS2d 832, the court held that the town board (emphasis ours)
could not waive or vary the conditions for a special permit.
31. Matter of Point Lookout Civic Association, 207 AD2d 454
[2nd Dep't], 615 NYS2d 763 (1994), where an applicant for a
special exenptiun simultaneously received not only the exception,
but area variances modifying setbeek and parking requirements, as
well as permission to maintain an existing nonconforming eddition.
32. Town Law,Sec. 274-b; Village Law 7-725-b.
33. AA&L Associates, L.P.v. Casella, 207 AD2d 1012 [4th
Dep't], 616 NYS2d 825 (1994). The planning board was given
authority to issue special permits for motor vehicle service stations.
The code contained a provision that such stations could not be
located within a 1000 feet of an existing station. The court, holding
that the ZBA could not vary this requirement, apparently assumed
that this provision was binding on the planning board in the issuance
of special permits.
34. Ninnie v. GouM, 178 AD2d 832 [3rd Dep't], 577 NYS2d
713 (1991), holding that a special permit that has lapsed under the
ordinance and extended by a prior city council, can be revoked by
a subsequent council.
35. Lemir Realty v. Larkin, 11 NY2d 20, 226 NYS2d 374
(1962).
34'
36. While courts have granted legislatures 'untrnmmeled#
discretion in such matters, they have, at the same time, said this did
not mean "capricious', an inherent contradiction that has never been
resolved. Whether legislative discretion is still untrammeled, is
highly problematic. It is eef, ainly true that when legislatures
formulate standards, they are bound by them (Bar Harbour
Shopping Center, Inc. v. Andrews, 23 Misc.2d 894, 196 NY2d 856
[1959]), a holding that seems to have been implicitly approved by
the Court of Appeals in Colonial Sand & Stone v. Johnston, Jr., 20
NY2d 964, 286 NYS2d 855 (1967).
37. More recently, a few appellate courts, overturning town board
rejections of special permit applications, have overlooked the
distinction between ZBAs and legislative bodies. See Matter of C&A
Carbone, Inc. v. Holbrook, 188 AD2d 599 [2nd Dep't], 591
NYS2d 493 (1992) and Matter of Markowitz, 200 AD2d 673 [2nd
Dep't], 607 NYS2d 705 (1994), both of which annulled town board
denials.
35
III
VARIANCES
A Brief Hi. ry
1. The Need
In 1916, when New York City introduced zoning into this
country,: state legislators feared the new laws might
occasionally prove too harsh. Concerned that strict
enforcement would cause some landowners to suffer
unnecessary hardship or practical difficulty, the authors
thought a safety valve was needed. Accordingly, the nation's
first zoning board was created and given authority to vary or
change local zoning requirements.
The New York State law that empowered municipalities to
enact zoning laws (the Enabling Act) originally required that
unnecessary hardship and practical difficulties be shown if
boards were to vary ordinances. Ultimately, the term
"variance" appeared. (In fact, the noun "variance" is believed
to have been given wide circulation, if not its origin by the
1926 Standard State Zoning Enabling Act issued by the U.S.
Department of Commerce. The secretary, Herbert Hoover,
was an early and ardent supporter of zoning laws.)
2. The Power
This extraordinary power to vary the ordinance (grant
variances) authorizes board members acting as a body to
bend, or even ignore, land use rules which ordinarily have
the force of law. Today, it is understood that if a zoning
37
regulation requires a house to be set back a distance of 50
feet from the street, the board may allow it to be built only
40 feet back. Moreover, if a regulation allows only
residential buildings in a certain district, the board can
permit a business structure. The frequency of exemptions
from local zoning requirements, granted through the variance
process, has encouraged the proliferation of applications for
relief and have led, as a consequence, to the increase in the
workloads of ZBAs.
Although administrative discretion has become widespread,
this kind of authority was highly unusual in the American
legal system in 1916, when administrative agencies were
relatively rare. Yet this authority is not unlimited; ZBAs
have it only in connection with zoning laws. They cannot
wander into other fields and vary laws such as building
3. The Constraints
The discretion allowed boards did not rest comfortably with
many citizens who feared abuse, although the board's
authority was limited by the Enabling Act, the Federal and
State Constitutions, and judicial review. It was left to the
courts to spell out the limits of this authority.
Since the Enabling Act had made 'unnecessary hardship'
and "practical difficulties" conditions precedent to the
granting of variances, it became immediately apparent that
someone had to clarify what was meant by these terms.
Otherwise, statutory and constitutional protections might be
circumvented, and the issuance of variances could then
deteriorate into an uncontrolled exercise of government
power.
38
The challenge from the beginning was one of defining not
only the terms unnecessary hardship and practical
difficulties, but also exactly what kind of board conduct
should be considered arbitrary and caprieious-a daunting
task leR to judges who under our legal system currently
review board determinations in article 78 proceedings
(formerly the ancient writs of mandamus, certiorari and
prohibition). The article 78 proceeding is an appeal to the
courts; it is the legal proceeding by which dissatisfied
(aggrieved) parties ask courts to review ZBA determinations.
It should be noted that at the beginning none of the parties
involved in the process had a clear idea of how much latitude
ZBAs ought to have, even though the courts quickly
embraced a policy of judicial deference? This meant that in
most cases zoning boards would receive the benefit of the
doubt, a premise that played an extremely important role in
the development of government land planning. The contrary
position, deferring to the landowner, in the view of most
zoning enthusiasts, would have frustrated the aims and
purposes of zoning.
It may seem strange now, but the original proponents of
zoning laws felt certain that the granting of variances would
be rare. This assumption, of course, soon proved to be
erroneous. "' Eventually, writers complained that "the safety
valve has ruptured into a steady leak.'S Nevertheless, there
were always enough dissatisfied applicants (and neighbors) to
keep up a flurry of judicial activity, and against this
background variance law slowly developed. By 1927, Judge
Cardozo, denying a variance, said that "no element of the
unexpected or the incalculable to aggravate his plight" had
given the applicant cause to claim a hardship.6 This statement
planted the seed for what was to become the self-created
39
hardship rule (See page 53).
From such beginnings came more judicial law-making, each
addition or modification shaping the law of variances. The
recent codification of the law of variances (1991-1992)
represents an important step and the first real legislative entry
into rule-making in many years. It is a legislative distillation
(with modifications) of many previous judge-made controls.
Yet, variance rules, as well'as rules in the field of zoning and
planning in general, have not reached the level of definiteness
and reliability found in other traditional areas of the law.7 It
is doubtful that they ever will. The discretion required by
boards prevents rules from being as predictable as the public
and the legal profession might desire.
In any event, standards, tests and guidelines have been
established, however vague or contradictory they may
sometimes be. They provide important and indispensable
signposts for zoning boards, lawyers, architects, planners and
others working in this field.
Definitions, Tests and Standards
As a result of historical evolution, variances in New York
ultimately divided into two types: use variances and area
variances.
Use variances directly concern the occupations, activities,
pursuits and operations conducted on land as allowed under
the zoning ordinance. Use variances contrast with Area (or
non-use) variances, which concern the way these occupations,
activities, pursuits and operations come into confiiet with
dimensional or physical requirements and limitations imposed
by the local ordinance.
Allowing a business operation in a residential zone, for
example, requires a use variance; allowing a building setback
to be reduced requires an area variance. Unlike some other
states, New York has a separate set of rules and a separate
body of law for each, a distinction that goes back to the
landmark case of Otto v. Steinhilber,s and more specifically,
the later case of Bronxville v. Francis.9 There are times
when this distinction becomes blurred. Is an off-street parking
variance, for example, a use or an area variance? As we shall
see later, there are cases on both sides of this question.
1. Use Variance
A use variance is now defined by state statute as an
"authorization by the zoning board of appeals for the use
of land for a purpose which is otherwise not allowed or is
prohibited by the applicable zoning regulatious."~°
Note that a denial (or grant) of an application for a building
permit, or a similar action by an administrative official, is
required before an application for a variance can be made. In
the absence of an administrative determination to review, a
zoning board of appeals is without power to grant a variance.
Its jurisdiction is appellate only. x:
a. Tests for a Use Variance
From the perspective of the state and local governments (as
set forth in the current statutes), such a variance is a
government authorized special dispensation. This is a view
confirmed by prominent scholars? Some property owners,
as well as at least one equally prominent scholar, see a
variance quite differently and believe it to be an individual
right. ~3
41
A use variance may be granted by ZBAs only if certain tests
are met by the applicant. Most of these tests were originally
promulgated by the New York Court of Appeals in Otto v.
Steinhilber, supra, but they have since been codified by the
state legislature. The statutory rules, which are easy to
understand, specify what must be proved. In order to obtain
use variances, therefore, applicants must now demonstrate that
the zoning regulations have caused them unnecessary
hardship. To show such a hardship, they must prove that:
(1) They cannot realize a reasonable return, provided such lack
of return is substantial as demonstrated by competent financial
evidence;TM
(2) The hardship is unique-it does not apply to a substantial
portion of the district or neighborhood;
(3) The requested use variance, if granted, will not alter the
essential character of the neighborhood;
(4) The hardship has not been self-created.
The statute, after reciting the above prerequisites for a variance
(compliance with all of them is required), issues the further
caveat: the board shall grant the minimum variance that it
shall deem necessary to address the applicant's hardship and at
the same time protect and preserve the health, safety and
welfare of the neighborhood as well as its character.~6
EXCEPTIONS: The tests above enumerated do not apply, at
least not to their full extent, to certain privileged uses such as
public utilities, schools, religious activities and perhaps
hospitals, which enjoy lenient standards. A discussion of
court attempts to ameliorate the problem of variances for
42
these uses is discussed in Accommodation at pages 81-83.
b. What The#e Te~t~ Mm
(1) Rate of return
What is a reasonable return and against what value should it
be applied? Generally, the applicant is entitled to a fair return
on the price paid (or the value at the time of acquisition) for
the subject property. Its current value under present zoning
regulations must be shown as well. To establish an
unreasonable rate of return in an application for a use
variance, the applicant needs to submit evidence of the
"purchase price, present value, real estate taxes, mortgages
or liens, asking price, cost of demolishing structures and
erecting a new one, cost of obtaining necessary area variances
and projected income from the proposed use."~? Rental
income has received court attention (Kingsley v. Bennett, in
note 17 herein), but a 3.6% return was held sufficient to
support a variance denial because of an excessive purchase
price. In Ryan v. Miller,~s a denial of a use variance was
upheld even though an expert opined that the owners would
realize only a 5.7% return on the sale of their property.
Conservative investments at the time were yielding 10% and
11%. The court complained that the owners failed to show
that they had made an effort to sell. See discussion of this
rule in the paragraphs below.
The Court of Appeals in Forrest v. Evershed (7 NY2d 256,
296 NYS2d 758 [1959]) held that an applicant need not show
the land lacked a reasonable yield if it were established by
competent evidence that diligent but unsuccessful efforts had
been made to sell the property? Courts have insisted upon
strict proof to this effect, and the fact that land isn't sold does
not necessarily prove that it can't be sold. A serious effort to
43
sell must be made?° Indeed, a question exists whether the
inability to sell in itself is sufficient to sustain the variance.
(See Citizens for Ghent, Inc., on next page.)
Straining to support board determinations, courts frequently
search for omissions of proof, stating that the requirement of
competent evidence demands a full disclosure by the applicant
of income, taxes, rents, mortgage interest, and the like.21 In
one case, even though the owner demonstrated a lack of a
reasonable return, he was still denied a use variance to install
an eating area in his grocery and delicatessen. The court felt
this owner should have, in addition, proved that the proposed
eating area would generate sufficient sales to bring the owner
a reasonable return, a decision which goes beyond the
generally accepted rule. Imposing an additional burden on the
landowner to show that the intended use will solve his
financial hardship problem seems to be a speculative endeavor
at best?
An expert's analysis of the figures is almost always
indispensable. The fact that unexplained data will not suffice
is illustrated by the language in one court decision rejecting
such evidence: "...Proof consisted of raw data without any
analysis showing...petitioner's alleged financial loss is
attributable to the zoning ordinance and not an unwise
investment."~ This analysis, therefore, must state how the
figures reflect the owner's balance sheet, having checked
them for accuracy, and why the rate of return is not
reasonable. Bare conclusory statements of witnesses are not
enough?
The need to submit such proof was affirmed by a decision of
the state's highest court in Fayetteville v. Jarrold [note 14]).
Before that case, hardship has been occasionally found
without the kind of voluminous proof outlined above. In one
case, decided before Fayetteville, hardship was deemed to
exist where the owner's property consisted of obsolete
buildings that were useful for no purpose under present
market conditions and could not reasonably be converted?
Presumably, under current law, some dollar and cents proof
would still have to supplement that kind of evidence.
It has even been suggested that other types of evidence, such
as an inability to sell the property, may be probative and
helpful to the applicant, but the submission must still be
supplemented by dollar and cents proof, since the applicant
needs to show in all cases that the return would not be
reasonable for each and every use permitted under the
ordinance? Rathkopf, however, feels that Evershed permits
a variance on proof of inability to sell alofie (see note 19).
His view is supported by at least one case which held that
proof that the owner had tried, but failed to sell the property
to 41 different buyers was sufficient?7
While some cases indicate that inability to sell is evidence
that land will not yield a reasonable return (See Moore v.
Nowakowski [4th Dep't], note 36), others indicate that the
owner must still submit the requisite dollars and cents proof
(See Citizens for Ghent, Inc. v. ZBA of the Town of Ghent
[3rd Dep't], note 26). In one decision, even though a "for
sale~ sign had been placed on the property for 14 years,
proof was found wanting. No evidence was submitted about
the asking price or of a listing with a broker?
These rules about inability to sell should not be confused with
those involving area variances where the owner is not
required to sell to an abutting owner, for "an owner is said to
be free to deal with anyone in the sale of his property.~ He
45
may not be compelled to sell to a neighbor at the price of
losing a vested right,N although the courts have recently
waffled on this issue?° Courts have been extremely
deferential to board expertise on matters of value. In one
case, even though documentary expert evidence had been
submitted showing a lack of a reasonable return, the court
still approved a board denial of a use variance, holding that
the board, having its own knowledge of local conditions,
could determine that a reasonable return was less than the
return submitted by the applicant?
COMMENT: Though their tests are strict, courts have
exhibited some confusion on the entire subject of the
reasonableness of a return. Decisions never mention
dollar devaluation or stress long-term net carrying
charges, although it wouM seem equitable to consider
both. Judges are, in fact, quite notorious in treating 50
year-old purchase prices as though they were paid with
current dollars? Nor do they ever acknowledge the
long-rerm real estate inflation that occurred since World
War 11. Aside from the hardship issue that arises in use
variance cases, courts also exhibit a curious aversion to
profit in area variance cases, a view that Rohan finds
questionable. ~
As to exactly what constitutes a fair return, judges have
had some difficulty (see Kinesley and Ryan a page 42).
Should the rate of return on commercial real estate, for
example, exceed that paM by banks on demand or time
deposits (10 years or less)? The judiciary has never
made this kind of comparison, though most economists
would argue that it is proper to do so. With such
stringent demands for proof of value, it is surprising,
therefore, to see one 3rd Department case go even
further and assume a banker's role, requiring, in
addition, evidence that the proposed use would solve the
applicant's ftnancial hardship problem (note 22J. How,
after all, would an applicant know whether the proposed
use will be successful until he or she tries?
The question arises as to what effect the codification will
have on these rules. The Act speaks only of financial
return supported by 'competent financial evidence. ~ The
courts will have to resolve whether an inability to sell is
such 'competent financial evidence' under the statute.
A difference appears to exist between the tests for a "taking"
and the use variance requirement of "a lack of a reasonable
return," though the codification was originally written under
the assumption that the two tests were the same. The use
variance test was changed later. A "taking" refers to a
government seizure of private property. Under the Federal
and State Constitutions, when the government "takes" private
property, it must pay the owner. Many years ago Justice
Oliver Wendell Holmes. formulated a rule that land
regulation, which goes "too far," was such a taking.
The court-invented test for a taking (a regulation that goes too
far) is more severe, that is, more difficult for the owner to
prove than the lack of a reasonable return test. It requires
owners to prove that they have been stripped by the
regulation of all value, without even a "bare residue" being
left (see Matter of Kransteuber, note 105). This takings test
has been used to deny applications for area variances in
connection with singly and separately held substandard lots
(see pages 70-72). Typical of these cases is one in which the
landowner had purchased the premises for $13,000, but under
subsequently enacted zoning ordinances, the value was
reduced to $5000. The court, upholding the denial of an area
variance, said that no taking had occurred, since the owner
still retained more than a 'bare residue. ' ~
In Spears v Bede (note 34), the Court of Appeals admitted
that it had difficulty "formulating a bright-line standard
differentiating permissible Police power measures from overly
vigorous and hence unconstitutional impositions." It added
that a regulation is
"deemed too onerous when it renders the property
unsuitable for any reasonable income, productive or
other private use for which it is adapted and thus
destroys its exonomic value or all but a bare residue
of its value."
As is evident, this is stronger language than that employed for
use variances, i.e. lack of a reasonable return.
Both the complexity of constitutional law and the occasional
inconsistency of judicial pronouncements, however, lead to
confusion. In Loujean Properties v. Town of Oyster Bay
(note 34), the Appellate Division said that in order to prove
a regulation unconstitutional, the owner needed to show that
the property could not yield an economically reasonable
return." This language unfortunately blurs the distinction
usually made, since the wording is almost identical with that
employed in use variance cases.
The reasonable return test is still in the process of
development. A few decisions deny a claim of a lack of a
48
reasonable return if the owner is collecting income. Although
these decisions appear to be correct on the facts, they fail to
mention carrying costs?s Conceivably carrying charges can
outstrip rental income.
(2) Uniqueness
The uniqueness test had been watered down by the courts
prior to the codification. The courts had said that "to deny the
variance solely on the ground that unique circumstances had
nOt been shown leaves open the prospect of a successful
assault on the zoning ordinance as being confiscatory."~
This test would now seem to be back in full bloom under the
codification. The Act prescribes, as did prior law, that a
hardship caused by the ordinance which affects a large
portion of the neighborhood or district loses its unique
quality. The proper remedy when a hardship affects too large
an area is not an application for a variance, but a request to
the legislative body to change the zone. Yet, a hardship may
be unique even though it affects another parcel, or even a few
others. The statute's use of the word "substantial" makes this
clear.37
Finally, there is a quantitative as well as a qualitative aspect
to the problem of uniqueness. Neither is easy to define. What
characteristics and which factors render a property unique?
Not surprisingly, these questions have never been explicitly
addressed by the courts, although in a case involving the New
York City code, the Appellate Division found the fact that the
property was wide and that utility lines interfered with the use
of the property did not amount to a sufficient "uniqueness." 58
In another case, an irregularly shaped lot lying in two
different zoning districts was thought to be unique.3° Simply
being near adverse or nonconforming uses such as a landfill
does not qualify as peculiar or unique, since the entire
neighborhood shares the hardship.~° The same is true of
property located in a deteriorating neighborhood, since
location itself does not seem to render property unique.4~
Swampy soil and the need to install pilings, however, was
found to make land unique, since it raised the cost of
constructing private homes by three times? A similar result
was reached in the case of a triangular lot which left no room
for parking.4~ On the other hand, the fact that a lot is narrow
or wide (note 38) doesn't make it unique in New York City,*'
though the degree of physical aberration would be likely to
affect the decision.
(3) Change of Character
This third test, it would seem, is one that board members are
especially well-qualified to make. If they believe that a
variance will alter the essential character of the neighborhood,
the statute requires that the application should be denied.
(Remember, however, that a change of character does not
necessarily foreclose a variance for a public utility. See a
discussion of public utilities and other favored uses in
Accommodation of Uses on page 81 herein.)
The character test is based on the premise that board
members are usually familiar with the history of the
neighborhood and the community. This hard-to-define
requirement often gives rise to disagreement. Though the
word "character," is referred to constantly, it has never been
defined by the courts. Its dictionary meanings are many, but
perhaps "essential quality" is nearest the mark. (If this is so,
then the statute's use of the word Uessential" would seem to
be a redundancy.) When boards try to fathom the subordinate
ingredients that compose character, which presumably ought
5O
to be preserved, it is hard to reach consensus, ludicial
opinions allude to the term "character" under the quite
understandable assumption that everyone agrees about term's
meaning. As a result, the atoms that make up this interesting
molecule are left largely for the boards to discover.
How much of a role, for example, do aesthetic considerations
play in this determination? In the view of the courts, it does
seem that homogeneity helps form a desirable community
character that should be preserved. This answer may not be
pleasing to those who favor mixed uses, but dissidents may
gain some comfort now that the once universal faith in
uniformity has been modified with the introduction of Planned
Use Districts (PUDs). PUDs represent a reversion to mixed
use principles, but usually under the control of planning
boards. They have not affected the view of many courts
which still believe that a restaurant with a parking lot in a
residential neighborhood changes the character of the
surroundings.~
What is a board to do when the neighborhood is clearly
changing? Should it favor the forces that molded the old or
those that now shape the new? Based upon prior judicial
behavior, it would seem safe to predict that the courts would
defer to board opinion on this issue. Normally, changing
neighborhoods present questions that are addressed by the
legislature. Since the political process moves slowly, owners
often demand immediate relief via use variances.
Amendments to the zoning code itself and mixed use zoning
initiatives, like floating zones and PUDs, foster gross changes
in the community's appearance (character). Floating zones,
approved many years ago by the Court of Appeals, allow a
municipality to designate and describe the features of a zone
51
without actually locating it on the map. They can be placed
anywhere at any time upon the approval of the legislative
body. Such sudden intrusions will not go unnoticed by the
community's citizens. PUDs and floating zones form a part
of the comprehensive plan, and it is proper for ZBAs to take
them into consideration when weighing prospects for future
development.
Although courts have been unable to identify the meaning of
the term "character," they have made suggestions through
negative inferences. They have on occasion explained what it
doesn't mean. The construction of a Y.M.C.A. building near
an existing church, for example, did not change the character
of one community,n6 Another court explained that an adverse
impact is not necessarily the same as a change in character of
the neighborhood.47 The positive attributes 'of character are
seldom mentioned, though one apparently is conformity of lot
size (at least, in cases involving area variances). It has been
pointed out that "since the surrounding homes are themselves
situated on nonconforming lots having less than one-half of
the required minimum lot area," a variance would not
adversely affect the character of the neighborhood.~s One
finds "incongruous" in a village ordinance's definition of
character in a special exception case,4. "homogeneous" in an
area variance case,~° and language in a famous use variance
case, Clark v. Board of Appeals of the Town of Hernpstead
(301 NY 86, 92 N.E. 903 (1950), that equated the
depreciation of property values with a loss of character.
Reestablishing a nonconforming use, in one case, was held
not to alter the character of a neighborhood,S~a rather sensible
view since the use had been a part of the neighborhood for
many years and ostensibly a part of its character.
52
As stated above, it is assumed that commercial intrusions in
residential areas violate community character, but not always.
At least, in Fiore v. Town of Southeast (31 NY2d 393, 288
NY$2d 62 (1968), an exception was made. The Court of
Appeals said that the "conditions attached to the proposed
variance will preserve the character of the neighborhood. ~
The use (an antique business) was to be conducted entirely
inside a barn located in a residential zone and, as a
consequence, did not "disturb the neighborhood." When this
was coupled with the fact that antique businesses are typically
conducted in residential areas, the court felt the area's
character had been adequately protected.
Hiding a use (a dog kennel) from public view was also
deemed to have preserved the neighborhood's residential
character in another case, a decision due no doubt to the
unfortunate predicament the owners found themselves in
because of a building inspector's error? Yet, obscuring or
shielding uses are at best mitigating devices. They can hardly
be relied upon to sustain irreconcilable uses, and it is wrong
to assume that antique businesses are always in conformity
with residential "character." In fact, Fiore today provides
little precedent, except for the proposition, that in rare cases
courts will allow a commercial use in a residential zone.
If a residential neighborhood contains a nonconforming
business use such as a neighborhood grocery, does a
subsequent commercial operation (even an antique business)
change the character of the community? The answer would
seem to lie in the board's discretion, but the question
illustrates the difficulties of applying this test. It may be that
character is like obscenity-judges can't define it, but they
know it when they see it.
53
(4) Sell-Created
The self-created hardship rule embraces any action that the
landowner might have taken to bring the hardship into being.
The rule also applies to the owner's acquisition of the
property if it takes place when the zoning restriction already
exists. A purchaser who buys land with knowledge of the
restriction is barred by this rule from obtaining a use
variance. Knowledge, of course, includes constructive
knowledge (the purchaser should have known). In Paplow v.
Minsker (note 51), the court, in a rare display of resistance to
the rule, placed a limitation on constructive knowledge based
upon reasonableness. The owner had purchased the property
at a foreclosure sale which had been advertised as a two-
family house. The property had long been used as a two-
family, but had lost its non-conforming status because of
delays in the administration of an estate. The court refused to
find that the purchaser had knowledge.
The self-created hardship rule, which derives not from the
Otto case, but from another,s3 mandates a denial even if the
owner is unable to secure a reasonable return,s` Conduct
such as erecting a shopping center with inadequate parking
under an illegal building permit, or constructing expansions
and additions without a permit, come under this provision,ss
Insofar as use variances are concerned, the so-called %yes
9ponH rule, a purchase with knowledge, or where the
p!lrchaser is presumed to have knowledge, is shunned by
ixtany states.
Though roundly criticized by national authorities on zoning,
tho "eyes open" rule has been followed in some states, but
ignored in others? It has also received conflicting treatment
in, New York. One judge in a concurring opinion ventured
that this version of the self-created hardship rule was not the
law of New York.s? He was at least partially right; the rule
has been frequently overlooked.
In sum, the existence of a self-created hardship vetoes all
other rights the landowner may have to a use variance.
When added to the other burdens that an applicant for a use
variance bears, the self-created hardship rule demonstrates
convincingly that securing a use variance is a difficult
endeavor indeed. When compared to an application for an
area variance, it is indisputable that the use variance
application faces more difficult hurdles and requires more
substantial evidence.~ This topic is discussed later under
Burden of Proof, page 65.
2. Area Variance
An area variance is defined by the statute as "the
authorization by the zoning board of appeals for the use
of land in a manner which is not allowed by the
dimensional or physical requirements of the applicable
zoning regulations.
The insertion of the phrase "use of land" in this section
creates an unfortunate ambiguity. It is, however, followed by
the phrase "in a manner which is not allowed by the
dimensional or physical requirements." The obvious intent is
to exclude from this definition all questions involving the
permissibility of the actual operations (the use) conducted on
the land. Area variances, rather, are limited to questions
involving the dimensional and physical requirements of those
operations. Thus, the board, when considering area variances,
deals with linear measurements, volumes, ratios, quantities
and numbers. The ZBA in such cases decides, for example,
if the mandated setback or side yard distance can be reduced
or if the minimum lot area requirements can be modified.
55
For area variance applications, the board needs a greater
discretion than in the case of use variances. As previously
stated, standards are looser for area variances, since the
statute contains fewer imperatives. The statute's language
concerning use variances is mandatory. For example, Town
Law 267-b-2 -Co) begins: "No such use variance shall be
granted by the board of appeals without a showing by the
applicant....", while the less demanding section on area
variances 267-b-3-(b) says: "In making its determination, the
zon'mg board of appeals shall take into consideration the
benefit to the applicant.." As a result, one would expect both
the boards and the courts to be more indulgent in their
treatment of area variances.
The parking of cars on private property as an accessory use
(off-street parking) is generally dealt with in zoning codes by
prescribing the number and size of spaces required for each use
of the land. Such numerical and dimensional mandates would
seem to place requests for their modification in the category of
an area variance.
While this is true, it is by no means absolute. Several cases
have called a request for a parking waiver a use variance, one
of which dealt with a restaurant seeking to park cars in a
residential zone, and another which dealt with the conversion
from a delicatessen to a cocktail lounge? Nevertheless, where
the applicant merely seeks relief from the number of off-street
p~king spaces required, it appears that an area variance is
usually called for.6~
The question of whether an application is for a use or an area
variance often arises in connection with one- and two-family
homes. When both are permitted in the same district, but
require different lot sizes or street frontage, an area variance
56
is required. When they are located in different zones, however,
the conversion of a one-family into a two- family calls for a
use variance.~e An increase in density generally requires an
area, not a use variance,os
a. Standards
The old term Upracticai difficulties," inserted in the original
enabling act in 1916, has now been discarded, having been
replaced by statutory standards. The codifiers apparently
hoped that certain confusing aspects of former court decisions
would thus be clarified or removed. When considering an
area variance, boards should understand that they are
primarily engaged in a balancing act, weighing public and
private benefits. In making determinations whether area
variances ought to be granted, ZBAs are now instructed by
the statute to "take into consideration the benefit of the
applicant if the variance is granted, as weighed against the
detriment to the health, safety and welfare of the
neighborhood or community by such grant."a Note the
complete omission of the term "practical difficulties."
To be sure, it is up to board members to apply this general
language, but the statute provides additional help. It suggests
that the board, in making its determination, also consider
whether:
(1) an undesirable change in the character of the
neighborhoo/d or a detriment to nearby properties will
produe~/Ky the granting of the variance; be
(2) the benefit to the applicant can be achieved in some other
way;
57
(3) the required area variance is substantial;
(4) the proposed variance will have an adverse effect or
ira. pact on the physical environmental conditions in the
neighborhood or district;
(5) the difficulty was self-created, which shall be relevant but
n~ot necessarily preclude the granting of the variance.os
b. What the Standards Mean
(1) Change of Character or Environment
The elusiveness of this term "character" plagues area
Variances as well as use variances. Its difficulties, discussed
in prior pages (49-52), remain. The statute couples character
with the word "environment" in this section on area
Variances, though it is not clear why the latter term is more
relevant to area variances than to use variances.
Character recedes as a subordinate issue in most area variance
applications, but the question of impact (especially on
abutting owners) does not. Three of the statutory
requirements.listed above ([1], [3] and [4]) are frequently
intertwined, if not confused. It is not uncommon for courts to
pay lip service to character, for example, while they actually
concern themselves with the effect or impact of a proposal,
SUch as a decline in property values.~6
It is true that major impacts can eventually change the
&sential quality or "character" of the neighborhood.
Measuring impact (i.e, traffic, congestion or pollution),
therefore, in area variance cases remains an important task
facing ZBAs in their determination of public and private
benefits. The undesirable effect an area variance may have on
58
the neighborhood or environment depends on both the kind
and size of the operation conducted on the premises.
It depends also on the type and size of the area variance
sought. A decrease in a supermarket's parking requirements,
for example, normally affects neighboring properties a great
deal more than a homeowner's deck that extends into a rear
yard. Thus, a shopping center's application to decrease side
yards or to increase floor area67 will understandably arouse
more neighborhood, even community opposition, than a
homeowner's similar application.
The more substantial the variation, the greater the impact on
the neighborhood. The nature, size and intensity of the
iandowner's present and proposed activities are relevant in
determining how much an area variance will affect abutting
property owners, the immediate area, the environment and
the neighborhood's character.
(2) Alternate Way
Whether the objective can be achieved in some other way
usually involves issues of cost and financial injury. The
question becomes whether the alternate method is feasible and
practical, though in the past courts occasionally held owners
to a higher test, the result of an opinion in Fuhst v. Foley.~
As recently as 1993, the Appellate Division held no area
variance was permissible so long as the primary use (a
residence) could still be conducted on the premises? Daren
Rathkopf and others feel that Fuhst represents a misreading
of the law, because the "alternative way* standard requires
proof only that the proposed use could not be conducted in
some other reasonable fashion?°
More relevant to the meaning of the alternate way standard
59
are those cases that inquire into the owner's options. Is it
reasonable to require a landowner to spend an extra $50,000
in order to locate an addition in such a way that the side yard
would not be violated by one foot? Not usually.
Actual cost estimates should be submitted; an architect's
testimony that an alternate way to build an addition would be
'expensiveH is not specific enough to substantiate a request
for an area variance.TM Nor is a statement that the proposed
manner of use is more %conomical~ su~cient?2 Expert
testimony that showed a cost of $100,000 to restore a deck to
a smaller size, however, was impressive enough to support
the grant of a variance."
(3) Substantial
The more substantial the variance, the more likely it is that
the impact on surrounding properties will be greater.
Although occasionally courts are known to allow large
variations to slip through (a sizable reduction in frontage or
front yard setback, for example),TM a large modification of
dimensional requirements may provide grounds for reversal?
Where the issue of substantiality occupies a gray area, courts
will defer to board judgment.
The opposite of a substantial variation is a very small one,
called de minimis. Courts have held that the denial of an area
variance served no valid purpose, when the applicant was
only 20 inches short of the required 65 feet frontage.76
(4) Self-Created Factor
When it comes to area variances, the self-created hardship
limitation (as explained previously in this chapter under the
section on use variances pp. 53-54) does not demand a denial.
It is only a factor to consider in an area variance application;
its presence is used to either bolster a denial or to be
dismissed as irrelevant. It may be incomprehensible to the
casual observer why an equivocal non-binding requirement
such as this should even be inserted into the statute. Since it
is often said that an area variance case cannot stand or fall on
this limitation alone,77 one must conclude that the requirement
remains in the statute primarily to increase board flexibility
and to buttress determinations. Courts, however, still insist
that boards at least weigh this factor.TM
COMMENT: Nearly all of the standards discussed above
were taken from judicial decisions defining 'practical
dijT~culties, '~ a term the legislators removed, though it
can still be expected to suo~ace now and then in court
opinions. The codification, among other things, tried to
eliminate a few unfortunate accretions that had
accumulated in the courts? The codifiers surely
expected, for example, that the application of the
economic injury test, formerly applied indiscriminately
in area variance cases, would be discarded,s~ They, no
doubt, held similar hopes for the rule laid out in Fuhst
v, Foley (see notes 69 and 70). These aspirations,
however, are not altogether certain of fuifillment. The
few post-codification decisions have so far not addressed
them, and Fuhst continues to be cited, though usually
for general propositions unrelated to its main point.
Courts have not yet taken express notice of the
distinction between the statute's precatory language
concerning area variances and the strict commands
regarding use variances. The statute requires the board
only to ,consider' the five standards when balancing the
61
equities involved in area variance applications. It does
not appear that the ZBA mast deny an area variance
merely because the applicant has failed to meet each
and every standard. Judges in the past have concluded
that a board may ignore a standard if it has good
reason for doing so (like the fact that all of the setbacks
in the neighborhood have been substantially reduced
(~ [note 74]).
Under the statute, the main task of the board remains to
balance the equities. Yet, ZBAs should be cautioned that
courts may annul an area variance where the applicant
has fallen far short of meeting one of the above
standards, if it clearly appears from the record that
because of the single deviation, the public detriment far
outweighs the individual benefit,s2
c. What the Standards Do Not Mean
Landowner appeals that are made to a ZBA's heartstrings (or
conscience) in themselves, cannot legally support a variance.
It is unfortunate, but requests that evoke board sympathy
must sometimes be turned down, since at present there is
little room in the rules for personal hardships and difficulties.
Personal inconvenience cannot serve as grounds for an area
variance.~ For example, a father who wanted to build a home
for his daughter on a substandard lot' split off from his larger
parcel saw the application for an area variance denied? The
reason, i.e. the convenience of parent and child, was found
to be an insufficient basis.
The same is true of good faith mistakes. Cases abound
62
where landowners, their contractors, or their architects have
made honest mistakes, usually in locating buildings. The
mistake, standing alone, will not support the grant of a
variance, even though the improvements may have already
been completed and even though the mistake was an innocent
one? Reliance upon a contractor who built without a perrait
and violated setback restrictions will not alleviate the owner's
difficulty.~
It may be comforting to know, however, that judicial hearts
are not completely petrified. While one decision sustained a
denial of an area variance to permit construction of a three-
room addition to accommodate an ailing mother because there
was no proof that she was ailing,~ another court was more
sympathetic, as was the board. A variance to permit
construction of a two-foot catwalk to provide access to a
disabled wife was not overturned,ss For such decisions, there
is, of course, no basis in existing rules, except compassion.
Local Options
A question inevitably arises in connection with these statutory
tests and standards: how far can local government go in
modifying them? May a town or a village ordinance, for
example, make proof of hardship a prerequisite for an area
variance?
Such questions have seldom been explored by the courts
under the Town and Village Law (and now, the General City
Law). The City of New York Zoning Resolution long ago set
forth its own requirements for variances. Section 72-21 of the
Resolution lists five tests that are applicable to all variances,
whether they be for use or area (or as the latter are often
63
called in the city, "bulk variances"). In other words, that city
makes no distinction between area and use variances, a
practice followed in theory by many states.
This uniformity of tests in New York City has, in fact, led to
minor yard variances being denied on the grounds of a lack
of financial hardship, a policy that has been criticized as an
unnecessary obstacle to business enterprise.~ It is argued that
a city suffering from an exodus of retail and manufacturing
establishments cannot endure home-grown rules which
severely limit unobtrusive variances, and prevent desired
business expansion.
Questions remain whether the Municipal Home Rule Law is
strong and broad enough to allow local governments in the
towns, villages and smaller cities to modify what is the state's
statutory scheme governing the requirements for variances.
Amendments made to the Municipal Home Rule Law during
recent years have greatly strengthened the power of local
government to supersede state law.
COMMENT: For those interested in researching these
questions, answers revolve around two concepts: (1)
Preemption and (2) Home Rule. State preemption would
hold that the requirements of local law illegally "inhibit
the operation of the state's general law, ,~o that, in fact,
the state legislature intended to regulate the subject
exclusively.
Thus, the inquiry becomes one of legislative intent, as
judges try to determine whether the codifiers intended to
preempt local laws or not. ln~ (note 90),
both the Appellate Division and the Court of Appeals
dealt with the question of inconsistency between the
State Mental Hygiene Law and the local zoning law, two
distinct yields of regulation. Reversing the Appellate
Division, the Court of Appeals held that zoning laws
were not preempted. The two courts differed as to
whether local zoning ordinances could be enforced
without creating conflicts and inconsistencies with the
state's Mental Hygiene Law?
There is no supersession language in the state's 1992
codification; that is, the statute does not expressly
declare an intention to override or supersede local law.
In addition, it is hard to finds words indicating that all-
embracing or exclusive regulation was intended.~
Local modifications of statutory procedures have
undoubtedly been attempted in the past, though they
rarely come to the attention of the courts. In Gregory v.
Cambria (69 NY2d 655) a provision of a town zoning
ordinance requiring unnecessary hardship to be proved
in all kinds of variance applications was declared a
nullity. The court inferred, however, that had the town
enacted a special local law, the outcome might have
been different.
Moreover, it is fair to assume that modification of notice
rules and other minor matters would receive little
judicial protest. As to more substantive conflicts between
state and local jurisdictions, Court of Appeals' decisions
point to a continuing tolerance for overlapping
regulation~ and a reluctance to cut back state legislative
and bureaucrutic authority. At the same time, it is true
that much local autonomy remains (see Khami in note
92).
The problem may be further complicated by the issue of
state versus local land planning. Supporters on both
sides can be expected to embroil themselves in any
conflict over jurisdiction. The recent codification
represents a modest step towards state-wide planning, a
popular idea with planning groups, though oflen resisted
by local officials.
The more extreme manifestations of state-wide land
regulation can be found in New England. and the
Northwest, though so far, similar effort~ have not been
welcomed in New York.
Burden of Proof
Sifting through zoning decisions, one discovers some
confusion over the terms "burden of prooff' and "sufficiency
of proof.~ The question of who has the burden in use
variance cases is clear enough, and the quantity required is
almost as clear.
More troublesome are area variance applications, which are
frequently approved by boards even when supporting
evidence is minimal. In these cases, boards, engaged in
weighing evidence, find the effort to be minor on some
occasions and extremely arduous on others. It may be stated
as an axiom that the more complex the issues, the more proof
required.
1. Use Variances
The burden of going forward in a use variance application is
upon the applicant, and the burden of proof that the applicant
shoulders is an onerous one. There has been no suggestion in
court decisions about this burden ever shifting. Therefore,
applicants must do more than make out a primafacle case;
they must establish their entitlement by overwhelming
evidence. The statute provides the elements which must be
proved, and the applicant must satisfy each element therein.
We have already referred to the comprehensive proof
(including records and expert testimony) required to establish
the lack of a reasonable return. This effort is demanding
enough, but the applicant must also submit evidence on the
neighborhood's character and its uniqueness, and that the
hardship is not self-created.
Though it has been said repeatedly that the quality and
quantity of proof varies from case to case depending on the
size and intensity of the use and the extent of the application
for relief,~ significant amounts of high quality proof are
needed in all use variance proceedings. The applicant's
burden is also increased by the judiciary's deferential posture
which leads to its proclivity for sustaining denials. Judges are
so rarely critical of the weighing process, that it seems as if
a court's decision finding the proof inadequate is based on
other unexpressed concerns.
In two unusual use variance cases where judges were non-
deferential, courts passed judgment on the evidence
submitted without revealing the kind or the amount of proof
they thought necessary. In one case, the Appellate Division
held the applicant's proof sufficient and overturned a use
67
variance denial to convert an abandoned school to a
commercial use.~
In the other case, the Court of Appeals, overruled a board's
grant of a use variance to allow a funeral home in a
residential district because of insufficient proof.~ In neither
case were the boards instructed by the court as to the proper
quantum of proof or given any guidelines.
Perhaps, these uncommon examples of judicial scrutiny
reflect subliminal rationales, i.e. an empty school building
kept off the tax rolls and the court's belief about the
undesirability of a funeral home in a residential district. The
failure to give the board explicit instructions, or to shed any
light at all on the question of how much proof is needed,
should not be surprising. Each variance application is
unique, and drafting guidelines about the quantity of proof is
no easy task.
2. Area Varian¢¢~
Proof for area variances is understandably less stringent. The
amount of proof required changes with the magnitude of the
relief requested,~ and courts have stated that one who desires
relaxation of an area limitation bears a lighter burden than an
applicant for a use variance.°~
Presumably, matters have not changed for the worse since the
codification. Prior thereto, the practical difficulties standard
was repeatedly said to be less demanding than unnecessary
hardship.°° Yet, minor confusion still clouds the question of
the applicant's burden.
Before 1992, evidence of financial injury had been added by
the courts to the applicant's laundry list of proofs for an area
68
variance. At the same time, the applicant's burden was eased
in another way. The Court of Appeals had stated in the case
of Fulling v. Palumbo (21 NY2d 30, 286 NYS2d 249
[1967]), that the burden of proof shifted from the applicant to
the municipality (the board) once the applicant had proved
either financial injury or practical .difficulty. The board then
had to show that the grant of the variance would threaten the
health, safety and welfare of the community. This rule was
reaffirmed on several occasions2°°
This rule, which derived from Judge Kenneth Keating's
decision in that case, has been effectively overruled by Matter
of Doyle v. Amster (79 NY2d 592 [1992]), and later, by
Matter of Vilardi (192 AD2d 662 [ 1993]). Though these cases
focussed primarily on the financial injury aspect of the
application and not on the shifting of the burden of proof, it
is now assumed that the Fulling rule, shifting the burden of
proof, has been removed.
COMMENT: Is the issue of who has the burden of proof
in an area variance case now resolved and is the law ax
unambiguous ax it seems ? The statute certainly lessens
not only the applicant's probative tasks, but those of the
board ax well, since it lists in detail what the board
should consider, and what the applicant for an area
variance needs to show. Financial injury is no longer
specified, though the courts have not yet acknowledged
its disappearance. The statute suggests, though not
expressly, what kinds of proof are expected. This
certainly looks like a marked improvement.
Furthermore, since the board's primary effort in area
variance applications is to weigh the public, versus the
private benefit, it is sometimes argued that no shifting of
the burden of proof occurs; that the ZBA acts in the
manner of a court of inquiry. This view, favored by
those who are critical of the adversarial process, is
reinforced by the widespread belief that applicants under
the Act need no longer prove financial injury. Once the
applicants have submitted their cases by presenting the
facts, ticking off the standards one by one, all that now
remains for the board is to balance equities and decide.
Optimism over Fulling's passing may be short-lived,
another triumph of hope over experience. Applicants
must still establish that the private benefit outweighs the
public. This can be done only by submitting a
preponderance of evidence, expert or othen~ise. The
municipality, to some extent, still retains the necessary
task of rebutting. It may be that boards no longer need
to establish that the public welfare requires a denial, but
they cannot sit idly by, allowing applicants to succeed
without countervailing argument.
While the particulars as to the evidence are largely left to the
applicant, the weight accorded the proof is within the sole
province of the board. As demonstrated by numerous
decisions, courts have been reluctant to interfere in this
process. The applicant's success is in no way assured by
voluminous evidentiary support, since boards have much
latitude in how they will treat the evidence. The board's
effort is often complicated by the dual nature of its function.
Unlike an ordinary court of law, a ZBA also acts
administratively and occasionally acts like an advocate for a
particular position.
70
Its knowledge of local conditions assumes equal status to
judicial notice taken of natural events in court proceedings.
A board's determination, therefore, may be based upon its
own survey,~°~ although its knowledge of the property and
neighborhood, if not entered into the record, is arbitrary and
an abuse of discretion?2 A board may also retain its own
opinion as to what constitutes a reasonable return despite
expert testimony to the contrary?~ In such cases, if the
board sets forth the results of its own survey or inspection
and they are rational, the determination will be sustained?~
On the other hand, these assurances of more relaxation in
evidentiary requirements for area variances should not lead
boards to lower their standards beyond sensible minimums or
to make careless evaluations of proof.
a. The gmasteuber Case
Somewhat of a departure from the usual rules dealing with
the proof required for area variances is the body of law
involving nonconforming singly and separately owned lots.
Where municipalities have passed ordinances requiring the
owners of such lots to conform with specific area
limitations and setbacks, and/or limit applicants to one
variance only, the courts had held that the owners, if they
could not conform, first show practical difficulty in order to
obtain area variances.
The "substantial" test made the barriers almost insuperable,
since the later ordinance requirements were always much
more restrictive than those imposed when the substandard lot
first came into existence. In addition, more than one variance
was usually required. Today, these applicants find themselves
thwarted by the statutory standards. As was the case with the
71
practical difficulties test, the standards for an area variance
are almost impossible to meet.
Thus, in single and separate cases, boards and the courts
customarily apply area variance standards rigorously. When
the standards are not complied with, courts demand that
applicants pass a difficult takings test. Only rarely, do these
claims succeed. Smaller plots and multiple variances are seen
by both boards and the courts as adversely affecting the
character of the existing neighborhood.
The Appellate Division, Second Department, in particular,
had sustained numerous denials of single and separate
owners' requests for variance relief, though in a few
decisions, it held otherwise. The Court of Appeals finally
passed upon this strict regulatory approach of local
government and upheld the Appellate Division (Second
Departmen0 position. In the leading case of Matter of
Kransteuber, the state's highest court denied relief, holding
that no proof of a taking had been submitted,l°s
The owner's house, legally built in 1934, on a 50 x 100-foot
plot, had been completely destroyed by termites in 1942.
Prior to that time, in 1937, the town placed the property in
Residential AA zone, requiring 20,000 square feet of lot area,
a minimum width of 100 feet and minimum side yards of 18
feet. Under the current local code, only one variance was
permitted. Compliance was obviously impossible. When the
owner, an octogenarian, sought four variances, she was met
with the argument that they were too substantial. No proof of
taking had been submitted at the board hearing, a failure that
proved fatal to her case.
COMMENT: This line of cases has created an anomaly.
72
An applicant for an area variance is made to face a
stiffer test than one seeking a use variance. For a single
and separate lot owner, mtakings' proof becomes an
essential pan of the application.
The proof required goes well beyond that needed to
show the lack of a reasonable return, for applicants
must show that their property value has been reduced to
almost nothing. Since their lots usually retain some
inherent value, however minimal, owners are routinely
left with slightly more than the bare residue-and a
useless residential lot.
If the single and separate substandard lot is situated in a
community that has not legislated on the subject, the
outcome for the landowner is much more fortunate. Where
local ordinances are silent on this issue, or if they list no
requirement that singly and separately held substandard lots
meet either a required lot area minimum or comply with other
yard and setback requirements, the law differs by 180
degrees. In such cases the owner is entitled to a variance as
a matter of right.~ This right runs with the land, and the
self-created hardship limitation is irrelevant?7
Conditions
1. Permissible Conditions
Conditions can be imposed by the board upon the granting of
both use and area variances (as well as special exceptions) so
long as the conditions are reasonable and for legitimate
zoning objectives. Though courts are liberal in upholding
board-imposed conditions, a connection must exist between
73
the condition and the objective sought to be achieved. For
example, one court rejected a condition that the landowner
hold the town harmless for damages caused by the town
during the latter's exercise of certain easement rights, finding
it unrelated to the variance application. ~ Conditions can be
enforced, and one case held that a criminal prosecution was
warranted for the failure to observe a condition?~
The rule that a Hnexus' is needed between the condition and
the impact of the proposed development has been established.
To review what was discussed in Chapter II on Special
Permits, the Supreme Court in Dolan v. City of 7igard,
1994 W.L. 276693 (1994), (embellishing what it previously
said in Nollan v. California Coastal Commission, 107 S. Ct.
3141, 483 U.S. 825 [1987]), held that in addition to having
a nexus, the condition must be 'roughly proportional" to the
impact of the proposed development. This phrase appears to
mean only that a reasonable connection ought to exist
between the condition and the possible impact of the proposed
development.
Such conditions as maintaining a screen of plantings or siting
a fence are common and have been repeatedly approved by
the courts. Special conditions peculiar to the case have also
been upheld. For example, a fence variance that set a fence's
location five feet back from the property line was upheld.~°
A use variance condition that limited a store from occupying
more than 25% of the total floor space of the dwelling was
approved,TM and a condition which prevented owners of
commercial property from fully enclosing a structure was not
found to be unreasonable?
Courts have warned that conditions, particularly those
imposed upon commercial operations, must relate to the
74
proposed user of the property and not to the manner of
operation of the enterprise. It should be noted that this
distinction can blur, but courts remain concerned that boards
become too intimately involved in the details of private
enterprise)~ Besides objecting to boards' prescribing the
number of hours of operation, courts have also disallowed
limiting the number of employees,TM or prohibiting a drive-
in window.Ils
It is noteworthy that the condition must be made expressly.
~Not every item discussed at a public hearing on the
application becomes an express condition of the approval."~6
2. llleeal Conditions
a. Limiting Variances to Particular Individuals
A condition that restricts a variance to a particular individual
is illegal. Since variances run with the land, conditions that
tie the variance to a particular individual (i.e. "during the
ownership of Mr. and Mrs. Smith~) are invalid. A use
variance condition allowing the operation of real estate office
in a residential zone "to be used solely by the individual
applicants" was held not related to a proven zoning
objective?
b. Limiting Variances as to Duration (Questionable)
Time limitations on variances had previously been upheld in
several cases limiting them to a period of years? One case
sustained a variance that was valid only during the summer
in a beach community.~9 The provisions of the 1991-92
statute which first expressly allowed time durations to be
imposed, have been deleted recently. This deletion now raises
75
doubts about the validity of time limitations that may be a
part of variances.
c. Neighbors' Consents
Courts expect ZBAs, and not neighbors or other residents of
the community, to make decisions. Although resisting the
demands of vociferous members of the community may be
difficult, decision-making remains the board's responsibility.
Years ago, local officials, in an attempt to deflect potential
criticism, made certain variances (and special permits)
conditional upon the written consent of neart~y residents.
Officials enacted ordinances which required the approval of
80% (or some other percentage) of owners on the block, or
of those having frontage on the same street, before an
application could be granted.
Courts soon found objection with these laws as an
unconstitutional delegation of power?° Although the door
was left open in the case of distasteful uses such as junk yards
and other nuisances, judges invalidated consent provisions as
applied to residences, schools, commercial establishments
and, in one case, even a gasoline station.TM The nuisance
exception, however, appears to have been extended to
dangerous uses which now includes gas stations. A consent
provision (50% of those within 500 feet of the service station)
has been upheld?: Consents required for a special permit
for a mobile home site, however, were not sustained because
a mobile home is not a nuisance.~:~ The court's main
concern, of course, was that neighbors might withhold their
approval for private reasons having no relationship
whatsoever to the health, safety and welfare of the,
community.
76
d. Planning Board Consent
Recently, many communities have called for the approval of
the local planning board as a condition to ZBAs issuing
certain special permits. This step, if the code specifically
makes it an essential condition, must be taken. Without such
consent, the permit is invalidd2~ If, however, the code calls
only for an advisory opinion from the planning board, then
the ZBA is not bound and may make its own independent
determination.~2~ To require prior planning board consent for
the issuance of a variance, however, would impinge on the
zoning board'o delegated authority. Such a prior approval is
improper.
Lapses
Under the terms of many ordinances, variances will lapse if
construction is not begun within a specified time, usually six
months or a year. Some ordinances allow ZBAs to extend
such time restrictions, while others are silent on the subject.
In any event, unless ZBAs are expressly forbidden to do so
by the zoning ordinance or local law, they have the authority
to extend variances or to refuse to consider an extension)~
The power to grant includes the power to deny.
It appears that the Town Law § 267 (5) gives the board
power to grant an extension even after the use variance has
expired. Local laws, internal rules, or the zoning ordinance
itself, may grant ZBAs this authority also, but boards have
this power even without local authorization.
In one case a second application for a variance (a one-year
limit having expired) was approved three years after the first
variance had been granted,l:? Thus, it is clear that a refusal
77
to extend a variance does not preclude the issuance on
another. In fact, if conditions have not changed, it is
extremely doubtful that the board can deny the second
application. '~
1. Renewal v. New Variance
The purpose of lapse provisions is to guard against a variance
being implemented after conditions in the neighborhood have
changed significantly? For that reason, unless local
regulations or internal board rules say otherwise, an extension
or renewal of a variance made after the expiration of the
~prescribed period should be preceded by a public hearing
with all the usual notices. At the same time, it is important to
keep in mind that lapse provisions are not designed to provide
a method for reversing prior determinations.~° Much
difficulty can be avoided in this area by the adoption of local
rules regarding the extension or renewal of variances and
special permits.
Revoking Variances
Though it seldom happens, boards have the power under
certain circumstances to rescind or revoke a variance. State
law empowers a zoning board to "reverse, modify or annul"
its prior dctermination.TM Since courts have not been eager
to allow rescissions, the difficult question is, when are they
permitted?
In one case, the ZBA revoked a variance it granted 32 years
before on the grounds that the character of the neighborhood
had changed. The Appellate Division found the revocation
illegal absent proof that the original variance had been
granted 'in excess of its jurisdiction.' The Court of Appeals
78
agreed with the conclusion, but not with the reasoning.
Without deciding whether the board had the power, the state's
highest court restricted the ZBA to the terms of its own
ordinance which "authorized the board to revoke only when
any condition it imposed either had not been complied with
or had been breached or violated.''"~ This case seems to
infer that absent the local provision, the board could have
legally revoked the 32-year old variance. Such a rule is based
on the principle that a variance is a grant and not a right.
This decision, therefore, fails to grant the holder of a
variance the kind of assurance of a vested right that might be
desired. The passage of a long period of time seems to
jeopardize an .unused variance simply because of the
presumption that circumstances have changed.
In another case, a board attempted to rescind an area variance
it had granted reducing frontage requirements. The
municipality had upzoned the premises six months after the
purchaser, relying on the variance, had paid $425,000 for
two residential plots. As a result, the owner was left with one
building plot. The court held the owner could not secure a
reasonable return and reinstated the original variance?3
Stare Decisis
In the traditional setting of a court of law, stare decisis
means that once a case is decided, it establishes a precedent.
Then, it must always (well, nearly always) be followed, for
having once reached a decision on a particular set of facts, a
court or a board must reach the same conclusion again on an
identical fact pattern. The rule, which is one of the
cornerstones of Roman and Anglo-Saxon law, has had little
79
application to zoning boards.
The reason for this is quite simple-nearly every application
for a variance is unique; rarely does a fact pattern repeat
itself. Yet, it happens occasionally, and when it does, the
board is bound by the prior determination. If, for example,
parking waivers are granted to several furniture store owners
on Main Street, it is hard to deny one later to another Main
Street furniture store owner. TM
Like all rules, however, there are apparent exceptions. A
temporary variance issued to prior owners, which variance
had expired, granted the new owners no rights,las The board,
distinguishing the two applications, said it was not bound by
the precedent, but its conclusion is questionable.
During the past few years, a handful of stare decisis cases
have reached the courts, but the fact patterns have usually not
been sufficiently similar to successfully invoke the
principle?~ It is important to remember, however, that
merely because the board had granted variances to others
similarly situated does not mean that the applicant is
automatically entitled to a variance. The prior grant, in itself,
is not sufficient to justify a charge of discrimination,
especially if the board has also previously denied such
variances to others?7
In one case, however, the Town of Westhampton had allowed
six front yard tennis courts. It was held error to deny the
seventh?s A board must, therefore, either be consistent in
its determinations or prepared to explain with solid evidence
or reasoning why its conclusions are different. One board
found itself able to circumvent the doctrine of stare decisis
with a change of heart, stating that the 'town had come to
8O
realize that proliferation of nonconforming uses was
disruptive.''~ The place to make this explanation, of course,
is in the board's findings.
Res Judicata
Often confused with stare decisis, the term res judicata,
means that the cause has been adjudicated and cannot be
heard again. Like stare decisis, it is basic to judicial
procedure. The doctrine of res judicata, which applies to
court and board proceedings, does not involve the issue of
precedent, but ~s based on the sound idea that once a court or
board has made a decision, it wants litigation to end: The
same issues cannot be raised interminably. Unless the facts
and circumstances have changed, further trials are
foreclosed? Just because a party seeks to submit additional
proof does not justify another application.TM
A rehearing, however, is to be distinguished from a new
proceeding and may be granted without violating the principle
of res judicata, since it is part of the same proceeding,m
Whether or not to grant a rehearing rests in the sound
discretion of the board (a unanimous vote is needed), but a
concurring vote of a majority of the members is necessary to
reverse any order or determination (See Section 7-712-a of
the Village Law and comparable provisions of the Town and
General City Law).
The board should grant a rehearing if it has overlooked a
significant aspect of the case, made an important error; or if
circumstances have changed.
A ZBA has been held to be within its rights in denying a
81
rehearing where no new facts or changed circumstances are
presented, even if the hearing is requested by a subsequent
owner who had not joined in the original application,m
Accommodation
tRelit, ious Bodies. Schools and Public
Since religions freedom is protected under the First
Amendment, courts were wary at first about the potential
interference with the use of church property by zoning laws.
Judicial latitude in land use cases toward churches,
synagogues and mosques has recently narrowed somewhat,
but courts still insist that boards make an effort to
accommodate religious institutions.TM
A court reversed a board denial of a permit to a small
Orthodox Congregation (35 families) that wanted to conduct
services in a one-family dwelling2~ Accommodation was not
given, however, to a Christian Science facility providing
room and board to fee paying individuals. The court found it
was not a church or a hospital2~ In another case, a consent
by a temple, later withdrawn, to submit to warrantless
searches as a condition to a use variance was set aside,m In
still an another case, an appellate court, ordering a special
permit to be issued, held that the board had an affirmative
duty to accommodate a religious use.~
Similar accommodations are due schools,~ public utilities~°
and probably hospitals,m though it is clear the courts
sometimes have difficulty defining these uses. Yet, when
identified, this limited group is not to be put to the same
stringent tests as other land owners.
82
The limits of this leniency have not been exactly delineated.
The basic hardship requirement for use variances appears to
be inapplicable, though subordinate issues (the character of
-the neighborhood and impact) are still relevant, albeit to a
lesser extent. A public utility used in a manner inconsistent
with the zone's basic character was said to place a heavier
burden on the applicant, an indirect acknowledgment that
character remains an issue.~s2
Since the financial return requirements of ordinary applicants
cannot be applied to religious bodies, schools, public utilities
and the like, and since uniqueness is an inappropriate test
also, this protected class is left with few serious obstacles.
Although such organizations seldom require use variances,
when they seek this kind of relief, only character questions
and impact arouse the court's interest.
The matter of area variances is slightly different. The
balancing standard required for area variances may still be
applied, although with a scale weighted in favor of this
privileged class. Besides the issues of character and impact,
the "alternate way" and "substantial" standards can still be
imposed on religious uses, schools and public utilities.
Parking waivers, in particular, frequently foster community
opposition, since they are usually substantial. The threat of
being overwhelmed by parked cars in a residential
neighborhood lessens the likelihood of accommodation.~3
Religious uses have fared poorly in another area of zoning
law--landmarks. Despite the tradition of accommodation, and
the correlation between architecture and religious doctrine,
churches, synagogues and mosques can look at landmark
regulation with little confidence. So far, attempts at
accommodation have proved largely unsuccessful (as
83
illustrated by the publicized case of St. Bart's Church in New
York City). This subject is not yet a significant matter for
ZBAs and is beyond the scope of this book.
COMMENT: This chapter cannot be concluded without
applauding the progress made by the courts and the
legislature in fashioning a set of variance rules over the
last thirty years. Building on a few pre-World War 11
cases, the courts established guidelines where practically
none had existed. Now ZBAs can exercise their
significant power with reasoned temperar ?. Questions
remain that will require more judge-made refinements.
To mention a few: ZBAs, in passing on use variances,
will continue to be perplexed by aspects of the lack of
the reasonable return test and the self-created hardship
limitation.
As we have stated, it is not always clear what value is
to be used in calculating the return or when the self-
created hardship limitation should be applied to
purchasers with knowledge. A contract vendee, for
example, may see an otherwise meritorious application
founder on the rocks of self-created hardship, although
courts state that 'the vendor's rights are being
determined, not the vendee's. ' ~4 There is room also for
legislative corrections. Modification of the stringent
hardship rules ought to be possible for minor use
variances. All in all, however, gratitude is due to those
who tried to build a rational framework for ZBAs. For
the most part, they succeeded.
Notes for Chapter III
1. The grant of zoning power actually began in 1914, when
the S~ate of New York authorized the New York City Board of
Estimate and Apportionment to divide the city into districts (Chapter
470 of the Laws of New York). By 1917, every city in the state had
the power to regulate the height and bulk of buildings. Charles A.
Rathkopf, Zoning & Planning in New York State, Orosby Press,
New York (1937) at page 11.
2. Rosenstein v. Curran, 21 AD2d 802 [2nd Dep't], 250
NYS2d 699 (1964). See also Shank v. Town of Dryden, 195 AD2d
858, 600 NYS2d 772 (1993), in which a ZBA attempted to vary the
terms of a Mobile Home Park Ordinance. The court, finding the
ZBA's action invalid, said that the variance granted no rights, since
the MHPO was not a zoning ordinance.
3. See, for example, the early case of People ex rel. Sheldon
v. Board of Appeal~ of the City of New York (234 NY 487 [1923]),
which concerned a 50% reduction in the area requirement of the
owner's land (partly business and partly residential) on Madison
Avenue. The Court of Appeals reinstated the variance, but failed to
discuss hardship seriously or define it. The less deferential lower
court had said the board exceeded its power; though it also did not
84
inquire into the meaning of hardship.
4. Prasick v. Board of Appeal, 262 Mass. 451, touting the
rare issuance of variances, was quoted approvingly in Aberdeen
Garage v. Murdoch, 257 AD 645 list Dep't], 15 NYS2d 66 (1939).
It was sometimo before anyone began to notice the error in this
assumption, and not until 15 years after the introduction of zoning
laws that a scholar even thought the subject of variances worthy of
attention (L.R. Wheeler, 'Power to Vary the Application of a
Zoning Ordinance,' in 16 Comell Law Quarterly 579 [1931]).
5. Shapiro, "The Zoning Variance Power-Constructive in
Theory, Destructive in Practice," 29 Maryland Law Review 3
(1962), fmding fault with what was perceived to be the promiscuous
issuance of variances. See also Bryden, "The Impact of Variances:
A Study of Statewide Zoning," 61 Minnesota Law Review 769
(1977). He said, 'Critics contend that by departing from these
standards, the boards have usurped legislative prerogatives,
undermined public confidence in zoning...."
6. People v. Er Rel. Fordham Manor Reformed Church v.
Walsh, 244 NY 280 (1927). Judge Cardozo added that no proof had
been submitted that the property would not yield a 'fair income.
This idea was later incorporated into use variance law as the
requirement that the applicant show the premises did not yield a
reasonable return. (See Otto v. Steinhilber, note 8.)
7. Rathkopf, The Law of Zoning & Planning (4th Ed.), Clark-
Boardman-Callaghan, Deerfield, Ill., 1994), quotes a well-known
commentator: 'Anyone who attempts to organize and set forth a
clear picture of the American law of variances either (1) has not
read the ease law or (2) has simply not understood it.' (Williams,
5 American Land Planning Law 12 [1985]). This harsh appraisal
contains more than a grain of troth, although it fails to recognize
the difficult task facing the courts in reconciling fixed roles,
standards and guidelines with the necessary exercise of board
85
discretion.
282 NY 71, 24 N.E. 851 (1939).
9. 1 AD2d 236, at 239 [2nd Dep't], 150 NYS2d 906,'
affirmed I NY2d 839 (1956). This case made the point that the
distinction between use and area variances wa~ based on the two
separate statutory terms (unnecessary hardship and practical
difficulties), though it failed to ex~mine this distinction in depth. In
a brief opinion the court said: "...a change of area may be granted
on the ground of practical difficulties alone without considering
whether or not there is ilnnece, ssary hardship." This sentence
provided the only basis for separate treatment in furore court
decisions. Formerly, in the Otto case, the New York Court of
Appeals barely alluded to the express wording of the statute.
Nevertheless, the inference was clear that the two kinds of variances
would be treated differently. Many state jurisdictions make no
distinction at all.
10. Town Law 267, Village Law 7-712, General City Law 81.
11. Matter of Eccles, 200 AD2d 570 [2nd Dep'q, 606 NYS2d
305 (1994), found impermissible the action of a ZBA that granted
an application to subdivide property in view of the fact that there
had been no' previous denial of a building permit by the building
inspector or other official. See also Matter ofMorlarlty v. Planning
Board of $1oatsburg, 119 AD2d 188 [2nd Dep't], 506 NYS2d 184
(1986), holding that a planning board cannot assume the powers of
a building or fire inspector.
12. For the view that a variance is a government dispensation:
"An authorization for the construction or maintenance of a building
or structure, or for the establishment or maintenance of a use of
land, which is prohibited by a zoning ordinance" Anderson,
American Law of Zoning, 3rd Ed., Lawyers Cooperative Publishing
Company, N.Y. 1986, Sec. 20.02. Note that this definition fails
86
to inclu~le uses which are neither prohibited nor allowed by the
ordinance, but which nevertheless require variances.
The view that it is a government dispensation is advanced
by another scholar, using a more inclusive definition than
Anderson's: "An administrative authorization for property to be
used in a man~nsr departing from the literal requirements of a
zoning ordinance." Rohan, Zoning & Land Use Contro~, Matthew
Bender, N.Y., 1994, Vol. 6, Sec. 43.01 (2). Later in his text, he
shifts somewhat. See Sec. 50.01 N. 14: "An authority for the
construction or maintenance of a building or structure, or for the
establishment of a use of land which is prohibited by a zoning
ordinance," a definition similar to Anderson's in t.t -~ the use of the
word 'prohibited" overlooks those uses that are in a kind of Never
Never land-neither permitted nor prohibited.
13. 'A variance is the right to use or to build in a way
prohibited by strict applicati°n of a zoning ordinance." Rathkopf,
The Law of Zoning and Planning, Clark-Boardman-Callaghan,
Deerfield, I11., 1994, Sec. 38.01 (1). In agreement is Richard A.
Epstein, 'Property as a Fundamental Right,' 29 California Western
Law Review 187 (1992).
14. The strict requirement of proof of financial hardship was
not always a hard and fast rule. Prior to the codification of 1991-
92, several use variance decisions had ignored the stringent
financial requirements laid down in Otto and Crossroads Recreation
v. Broz, 4 NY2d 39, 172 NY$2d 129 (1958).
The Court of Appeals upheld use variances without proof
that a reasonable return Was lacking in Fiore v. Town of Southeast,
21 NY2d 393, 288 NY$2d 62 (1968), (an antique business in a
residential zone), and Jayne Estates v. Raynor, 22 NY2d 417, 239
NYS2d 75(1968), (an already constructed multiple dwelling). It
had also inferred that proof of inability to sell would support a use
variance in Forrezt v. Evershed, 7 NY2d 256, 196 NYS2d 958
(1959). Finally, in an attempt to reconcile divergent opinions, the
state's highest court, in Fayetteville v. Jarrold, 53 NY2d 254,440
87
NYS2d 908 (1981), held proof of a lack of a reasonable return to
be essential. In a 4-3 decision, it seemed to chisel this edict into
stone, although the dissent vigorously maintained that the court's
function had always been simply to see that boards met the test of
reasonableness.
15. Town Law (267-b-2 [b]); Village Law (7-712-b-2 [bi);
General City Law (81-b-3[b]). The first three requirements for a
use variance are essentially those set forth by Judge Finch in Otto
v. Steinhilber, supra. The self-created hardship limitation (4),
however, derives from Clark v. BZA of the Town of Hempstead,
301 NY 86, 92 N.E. 903 (1950).
16. Town Law (267-b-2 Ici); Village Law (7-712-b-2 [c]);
General City Law (81-b-3 Ici).
17. Kingsley v. Bennett, 185 AD2d 814 [2nd Dep't], 586
NYS2d 640 (1992). The court said it would 'not guarantee the
investments of careless land buyers.'
18. 164 AD2d 968 [4th Dep't], 559 NYS2d 414 (1990).
19. Rathkopf, The Law of Zoning and Planning, Sec. 38.03
citing Grimpel Associates v. Cohalan, 41 NY2d 431,393 NYS2d
373 (1977). This declaratory judgment case recites the test for a
claim of unconstitutionality. The owner must be 'deprived of all
reasonable use of the property.' This is a step beyond the
reasonable return test for use variances.
20. Shiner v. Board of Estimate, 95 AD2d 831 [2nd Dep't],
463 NYS2d 872 (1983).
21. Matter of Crossroads Recreation v. Broz, 4 NY2d 39,
172 NYS2d 129 (1958).
88
22. Mazurkiewicz v. Levine, 159 AD2d 892 [3rd Dep't], 553
NYS2d 227 (1990). The court admitted that there was 'sufficient
evidence that he could not realize a reasonable return.' Yet it still
required 'concrete proof" that the proposed eating area and free
standing sign 'would~generste increased sales."
23. Khanaja v. Denison, 203 AD2d 679 [3rd Dap't], 610
NYS2d 364 (1994).
24. Drake v. Village of Colonie, 183 AD2d 1031[3rd Dap't],
583 NYS2d 628 (1992). The court felt the applicant was 'undercut
by the indisputable fact that the petitioner currently derives rental
income of approximately $6000 annually..."
25. Hopkins v. Board of/Ippeals, 179 Misc. 325, 39 NYS2d
167 (1942). 'Part of the difficulty in making the property pay a
return is the nature of the construction of the houses themselves...
26. Citizens for Ghent, Inc. v. ZBA of the Town of Ghent, 175
AD2d 528 [3rd Dap't], 572 NYS2d 957 (1991). Although the
inability to sell the property for a permitted use evinces a lack of
return, the owner is still obligated to submit dollar and cents
evidence,
27. Sheeley v. Levine, 147 AD2d 871 [3rd Dep't], 538 NYS2d
93 (1989).
28. Bellanca v. Gates, 97 AD2d 971 [4th Dep't], 468 NYS2d
774 (1983).
29. Plattner v Sacca, 49 AD2d 602,603 [2nd Dep't],370
NYS2d 188, 189 (1975), overturned a board denial based upon the
applicant having 'failed to make a bona fide offer to sell the
property to abutting property owners.'
89
30. Matter ofSakrel v. Roth, 182 AD2d 763 [2nd Dep't], $82
NYS2d 492 (1992. The court said that there was no proof
petitioner could not have obviated the difficulties through other
means, "such as soiling the parcel to one of the adjacent owners.'
Similar sentiments were expressed in Sofo v. Eagan, 57 AD2d 841
[2nd Dep't], 394 NYS2d 43 (1977).
31. Petruzzelli v. ZBA of Village of Dobbs Ferry, 181 AD2d
825 [2nd Dep't], 581 NYS2d 105 (1992). The board denied a
variance to convert a single-family plot into a two-family. Note,
however, how the court in Putrino v. ZBA Town of Union, 115
AD2d 932 [3rd Dep't], 496 NYS2d 827 (1985) called this kind of
variance (a conversion of two-family to a four-family) an area
variance and consequently lessened the owner's burden of proof.
32. See Matter of Kransteuber, 80 NY2d 783,587 NYS2d 272
(1992), where relief was denied because no proof of taking had
been submitted. The owner purchased the premises in 1934, and
could at best obtain $5000-$8000 for the property at the time of the
hearing.
33. See Rohan, Zoning & Land Use Controls, Sec. 43.06 (6);
also Sofo v. Egan,supra, note 30.
34. Licari v. Scheyer, 193 AD2d 604 [2nd Dep't], 597
NYS2d 165 (1993) and Spears v. Berle, 48 NY2d 254, 422 NYS2d
636 (1979). See also Loujean Properties v. Town of Oyster Bay,
160 AD2d 797, 553 NYS2d 835 (1990),which concerned a request
for rezoning. To prove a taking, the applicant similarly needed to
offer proof as to the value at the time of acquisition and the current
value as well. Conelusory testimony was found to be insuffieienL
35. Doyle v. Amster, 79 NY2d 592, 584 NYS2d 417 (1992).
See Drake v. Village of Colonie, 183 AD2d 1031 [3rd Dep't], 583
NYS2d 628 (1992), in which the court said the claim was "undercut
by the indisputable fact that petitioner currently derives rental
90
income of approximately $6000 annually...' Cf. Stanley Park, Inc.
v. Donovan, 34 AD2d 690, 312 NYS2d 472 (1970), app. 38 AD2d
861,330 NYS2d 111, aff'd in part and dism. in pert 32 NY2d 668,
343 NYS2d 133 and Young Women's Hebrew Ass'n v. Board of
Standards and Appea/s, 266 NY 270, 194 N.E. 751 (1935), app
dism. 296 US 537, where proof that the owner of a commercial
building was losing $200-$300 per week was rejected as insufficient
evidence, as "personal,' and not relating to the land.
36. Jayne Estates v. Raynor, 22 NY2d 417, 239 NYS2d 75
(1968). See also Moore v: Nowakowski, 44 AD2d 901[4th Dep't],
355 NYS2d 882 (1974), holding that the owner '~id not need to
demonstrate that the property was unique, since a lack of a
reasonable' return had been proved. The codification casts serious
doubt upon this statement.
37. Language in Town Law § 267-b;Village Law §7-712-b,
General City Law §81-b, makes clear by the use of the word
"substantial' that a unique quality is not defeated simply because it
applies to another parcel. It ro~tls: "and does not apply to a
substantial portion of the district, or neighborhood* (emphasis
ours). See also, Douglaston Civic Association v. Klein, 51 NY2d
963, 435 NYS2d 705 (1980). *It does not require that only the
parcel of land in question and none other be affected...' at p. 706.
38. Karneil v. Bennett, 186 AD2d 742, 588 NYS2d
651(1992), concerned an area variance in New York City. It
illustrates that physical shape does not usually weigh too heavily
there. (For outside the city, however, see Gregory v. Cambria in
note 43).
39. Elliot v. Galvin, 33 NY2d 594, 347 NYS2d 457 (1973).
40. Collins v. Caru~one, 126 AD2d 847 [3rd Dep't],510
NY$2d 917 (1987).
91
41. Saitta v. Malone, 26 Misc.2d 817,208 NYS2d 804 (1960).
Property by virtue of being on a busy street is not unique; it shares
the problem with ali other properties nearby. See Shiner v. Board
of Estimate, 955 AD2d 831 [2nd Dep't], 463 NYS2d 872 (1983).
42. Douglaston Civic Ass'n v. Klein, 51 NY2d 963, 435
NY$2d 705 (1980).
43. Gregory v. Cambria, 115 AD2d 288 [4th Dep't], 496
NYS2d 141 (1985), aff'd 69 NY2d 655..
44. Faho'. v. Bockman, 151 AD2d 665 [2nd Dep't], 543
NY$2d 100 (1989), decided pursuant to New York City's zoning
resolution, which contains explicit definitions of uniqueness.
45. LoGiudice v. Wallace, 118 AD2d 913 [3rd Dep't], 499
NYS2d 812 (1986).The case failed all the other tests for a use
variance.
46. Stevens v. Clark et al. constituting BZA of the City of White
Plains, 216 AD 351 [2nd Dep't], 215 NYS 190 (1926).
47. Guadagnolo v. Town of Mamaroneck et ano., 52 AD2d
902 [2nd Dep't], 383 NYS2d 377 (1976). Nine apartments in the
vicinity convinced the court that an application for a multiple
dwelling did not threaten the character of the neighborhood.
48. Conley v. Town of Brookhaven, 40 NY2d 309, 386 NYS2d
681 (1976). The loss of a 'pleasant wooded area' did not change
the character of the neighborhood. Neighbors were not entitled to
view the trees.
49. Herman Tarnower v. Robert E. Delany et al. constituting
the ZBA of the Village of Scarsdale, 39 AD2d 713 [2nd Dep't], 332
NYS2d 4 (1972).
92
50. O'Keefe v. Donovan, chairman of the ZBA of the Town of
Colonic, 199 AD2d 681 [3rd Dep'q, 605 NYS2d 150 (1993).
Character included the marketability md present value of
neighboring lands.
51. Paplow v. Minsker et al. constituting the ZBA of the
Village of East Aurora, 43 AD2d 122 [4th Dep't], 350 NYS2d 238
(1973).
52. La Dirot Associates v. Smith, 169 AD2d 896 [3rd Dep't],
564 NYS2d 620 (1991).
53. Clark v. Board of Zoning Appeals of the Town of
Hempstead, 301 NY 86, 92 N.E. 903 (1950).
54. The self-created hardship limitation, recognized at all levels
of the state and federal courts systems, is nevertheless logically
inconsistent with the basic concept of hardship, .which relates to the
land and not to the person. That a hardship relates to the land is
illnst~ted by cases stating that variances may not be granted on the
basis of 'personal' hardship, difficulty, inconvenience or mistake.
The extension of this rule to include one who purchases a parcel
with actual or constructive knowledge of the reatriction has been
severely criticized by scholars.
55. Sherman v. Gustafson, 22 NY2d 793, 292 NYS2d 896
(1968). See also CDK Restaurant v. Krucldin, 118 AD2d 851 [2nd
Dep't], 500 NYS2d 339 (1986).
56. See lOnanuja v. Denison, 203 AD2d 679 [2nd Dep't], 610
NYS2d 364 (1994); Drake v. Villoge of Colonic, 183 AD2d 1031
[3rd Dep't], 583 NYS2d 628 (1992); Max Kirsch, 22 Misc. 2d
1074, 202 NYS2d 547 (1960), Asch v. Gillespie, 14 AD2d 543
[2nd Dep't], 218 NYS2d 247, (1961), and Carriage Works
Enterprises, Ltd. v. Siegel, 118 AD2d 568 [2nd Dep't], 499 NYS2d
441 (1986). The rule has also been ignored. See, for example,
93
Fiore v. ZBA Town of ~outheast, 21 NY2d 393, 288 NYS2d 62
(1968), Stanley Park, Inc. v. Donovan, 38 AD2d 861 [2nd Dap't],
330 NYS2d 111(1972) and Murphy v. Kraemer, 16 Misc.2d 374,
182 NYS2d 205 (1958). It was ignored in Commco, Inc. v.
· 4melkin, 109 AD2d 794 [2nd Dap't], 486 NYS2d 305 (1985),
perhaps because tho applicant was a conditional contract vendee.
But see Amco Development, Inc. v. ZBA Town of Perinton, 185
AD2d 637 [4th Dap'ti, 586 NY$2d 50 (1992).
57. Justice Gulotta in Designer Homes, Inc. v. City Council of
Yonkers, 36 AD2d 836 [2nd Dap't], 321 NYS2d 688 (1971),
expressing the same thought as Judge Cortland Johnnon 13 years
before in Murphy v. Kraemer, supra, note 56. Both felt that a
person acquiring a parcel which already q~ified for a variance
should not be disabled from obtsinin$ one by the mere transfer of
title.
58. Fayetteville v. Jarrold, 52 NY2d 254, 440 NYS2d 908
(I981). 'An applicant for a use variance bears a heavier burden of
proof than one who desires relaxation of an area limitation,' citing
Consolidated Edison v. Hoffman, 43 NY2d 598, 403 NYS2d 193
(197S).
59.
§al.
Town Law § 267, Village Law § 7-712, General City Law
60. North Shore Steak House, Inc. v. Board of Appeals of the
Village of Thomaston, 30 NY2d 238, 331 NYS2d 645 (1972),
involving both a special exception and a variance. The owner
sought to extend parking into the residential portion of its split-
zoned lot. A use variance was needed. In Off Shore Restaurant
Corp. v. Linden, 30 NY2d 160, 331 NYS2d 397 (1972), the owner,
by converting from a delicatessen t~ a enektail lounge, changed the
number of parking spaces required. This, the court said, entailed
the use of property. Thus, when the ordinance requires parking for
certain uses according to a stated formula, a use variance is celled
94
for. See also Murphy v. Kraemer, 16 Misc. 2d 374, 182 NYS2d
205 (1958), in which an early court decision said that 'adequate
parking involves the use of property.'
61. Matter of Overhill Bldg. v. Delaney, 28 NY2d 449, 322
NYS2d 696 (1971).
62. Rathkopf, The Law of Zoning and Planning, Sec. 38, citing
Wachsberger v. Michalis, 18 AD2d 92112nd Dap'ti, 238 NYS2d
309 (1963). Cf. Off-Shore Restaurant Corp. v. Linden, 30 NY2d
160, supra, where conversion of uses (delicatessen to cocktail
lounge) required a use variance, althoug .h both uses were permitted
in the zone.
63. W/lcox v. ZBA, 17 NY2d 249, 270 NYS2d 569 (1966), a
Yonkers case which overruled Markovich v. Feriola, 41 Misc.2d
1051, 247 NYS2d 29 (1963), also a Yonkers case (Supreme Court
Justice Gagliardi). It had held a use variance to be required where
the deviation was so substantial as to change the basic classification
of the zone.
64. Town Law §267-b-3Co); Village Law §7-712-b-3Co);
General City Law §81-b-3
65. Town Law; Village Law; General City Law ibM.
66. Conley v. Town of Brookhaven, 40 NY2d 309, 386 NYS2d
681 (1976).
67. Matter of National Merritt v. Weist, 41 NY2d 438, 393
NYS2d 379 (1977).
68. 45 NY2d 441,410 NYS2d 56 (1978).
69. Samon v. City of Utica ZBA,191 AD2d 1004 [4th Dep't],
594 NYS2d 512 (1993). The board granted aa area variance for a
carport to be built within six inches of the side line because the
owner's car had been damaged by soot emanating from a neighbor's
chimney. The court annulled this determination, however, saying
proof had not been offered that the applicant's property was
unusable without an area variance (a statement derived from Fuhst
v. Foley, 45 NY2d 441,supra. See text and note 70).
70. The Samon case in the previous note followed the Fuhst
rationale. In The Rhodes Real Estate Review, March, 1992, Daren
Rathkopf called Fuhst "an unfortunate mm," a misr,,~,tlng of
Rathkopf's original text. "What was intended...was merely to
identify the predicate factor which made the grant of an area
variance necessary, that the desired use could not, as a practical
matter, be made without the grant of area variance relief," not
whether the property could still be used as a residence.
Samon's result could nevertheless be justified on the
grounds that no actual proof of damage to the automobile had been
submitted and that the applicant failed to show that there was, in
fact, no alternate way. It is hoped, however, that this aspect of
Fuhst will be ignored in the future.
71. Krounerv. City of Albany, 192AD2d 930 [3rd Dep't], 596
NYS2d 891 (1993). Merely stating that the alternate way would be
"expensive," is inadequate. A cost comparison helps considerably.
72. D'Angelo v. Hartman, 187 AD2d 927 [4th Dap't], 590
NYS2d 360 (1992).
73. Ralph v. Board of Appeals of the Town of Huntington,183
AD2d 900 [2nd Dep't], 584 NYS2d 488 (1992).
74. O'Keefe v. Donovan, 199 AD2d 681 [3rd Dap'ti,605
NYS2d 150 (1993). The board allowed a substantial front yard
setback from 55 to 25 feet. The court approved, noting that it
96
was not much less than the 30-foot setbacks of other neighborhood
lots. The case involved a split off, so that a father could build a
home for his daughter who suffered from Lupus.
75. In Matter of Sakrel v. Roth, Ltd, 204 AD2d 331 [2nd
Dep't], 611 NYS2d 268 (1994), the board denied aa area variance
applicant seeking a 33.3% reduction from code requirements on the
grounds that nearby properties would suffer, and environmental
capacity would be strained. The Supreme Court had annulled the
determination, but the Appellate Division reversed and reinstated
the denial.
76. Matter of Hof~tein v. BT_al Town of North Hempstead, 159
AD2d 503 [2nd Dap'q, 552 NYS2d 372 (1990).
77. Four M. Construction Corp. v. Fritts, 151 AD2d 938 [3rd
Dep't], 543 NYS2d 213 (1989); Stengel v. Woodstock ZBA 155
AD2d 854 [3rd Dep't], 547 NYS2d 961 (1989).
78. De Sena v. BZA Incorporated Village of Hempstead, 60
AD2d 601 [2nd Dep't], 399 NYS2d 1019, aff'd 45 NY2d 105
(1977).
79. The present area variance roles are essentially those ratified
by the Appellate Division (2nd Departmen0 in Wachsberger v.
Michalis, 18 AD2d 921 [2nd Dep't], 238 NYS2d 309 (1963) and in
Matter of Friendly Ice Cream Corporation v. Barrett, 106 AD2d
748 [2nd Dep't], 483 NYS2d 782 (1984).
80. The development of area variaaee law has been long and
tortuous. Fulling v. Palumbo, 21 NY2d 30, 286 NYs2d 249 (1967)
and its progeny made economic injury a test, one which later made
its way through the judiciary by twists and tums. If proved by the
applicant, economic or financial injUry shifted the burden to the
municipality, requiring it to establish that a variance would be
detrimental to the public safety, health or welfare. Financial injury
97
surfaeed prominently thereafter. See Human Development Servicez
of Port Chester v. ZBA of the Village of Pon Chester, 110 AD2d
135 [2nd Dep't], 439 NYS2d 481 (1985), affirmed 67 NY2d 135,
and Matter of National Merritt v. Weist, 41 NY2d 4:38,393 NYS2d
379 (1977). The latter caee, however, effected a modification: if the
'hardship [is a] self-erected or self-imposed one, then the showing
of financial hardship itself does not entitle the owner to a variance. '
This statement accelerated a total retreat from the Pa/umbo ruling.
Note that neither Wachsberger, Friendly Ice Cream nor the current
statute mentions economic injury.
81. See Ter~ Rice, 'Zoning Enabling Legislation Amended,'
The Rhodes Real E. vtate Review (October 1992).
82. Matter of Sakrel, Ltd. v. Roth, 204 AD2d 331 [2nd Dep't],
611 NYS2d 268 (1994).
83. Matter of Sbuttoni v. Town of E. Greenbush ZBA, 172
AD2d 940 [3rd Dep't], 568 NYS2d 220 (1991).
84. Matter of Larson, 202 AD2d 505 [2nd Dep't], 609 NYS2d
23 (1994). The Appellate Division, Second Department, denying the
variance, reversed the Suffolk County Supreme Court. Contrast this
decision with O'Keefe in note 74.
85. Matter of Slakoff 194 AD2d 613 [2nd Dep'q, 599 NYS2d
63 (1993). The owner submitted a distoV~ed sketch to the building
department upon which a permit for a pool and deck was secured.
The board denied the application for a variance, and the Appellate
Division upheld the denial.
86. Matter of Grace, 182 AD2d 820 [2nd Dep't], 582 NYS2d
284 (1992). See also Fendelman v. ZBA Village of Scarsdale, 178
AD2d 478 [2nd Dep't], 577 NYS2d 138 (1991), where the
contractor reconstructed a garage in violation ora side yard setback.
98
87. DeMarco v. Curcio, 154 AD2d 672 [2nd Dep't], 546
NYS2d 672 (1989).
88. Welch v. Law, 121 AD2d 808 [3rd Dep't], 504 NYS2d 790
(1986).
89. Sheldon Lobel and Charles Matel, 'City Needs to Update
Zoning and Land Use Laws,' New York Law Journal (9/26/1994).
90. See Incorporated Village of Nyack v. Daytop Village, 173
AD2d 778 [:?.nd Dep't], 570 NYS:2d836 (1991), reversed by tho
Court of Appeals.
91. Similar rulings were made in the Mined Reclamation
cases. The Mined Land Reclamation Law was not intended to
preempt local zoning laws. Morrell v. C. LD. Landfill, 125 AD2d
998 [4th Dep't], 510 NYS2d 395 (1986), Iv. denied 69 NY2d 612.
and Frew Run Gravel Products v. Town of Carroll, 71 NY2d 126,
524 NYS2d 25.
92. The issue presented between state and local regulation of
zoning is different from both Daytop and the mining eases, since
it concerns two branches of government trying to regulate one field.
Such was the case in Kamhi v. Town of Yorktown, 74 NY2d 423,
548 NYS2d 144 (1989), which found that the Town of Yorktown
possessed the power under the Home Rule Law's supersession
authority to impose a condition to provide park land (or the money
equivalent) on a site plan approval for a multifamily dwelling,
despite inennsistency with Town Law, sec. 274-9.
93. Hunt Bros. v. Glennon, 81 NY2d 906, 597 NYS2d
643(1993). A minin$ operator who secured a permit to blast
pursuant to tho Mined Land Reclamation Law was found to be still
subject to the jurisdiction of the Adirondack Park Agency, although
a strong dissent objected to multiple "bureaucratic behemoths"
adding to the confusion.
99
94. The burden of proof varies with the magnitude of the
variance sought. Unger v. BA Town of Perinton, 58 AD2d 1020
[4th Dep't], 397 NY$2d 278 (1977).
95. Cominco v. Amelkin, 109 AD2d 794 [2nd Dep't], 486
NYS2d 305 (1985).
96. Clark v. Board of Zoning Appeals of the Town of
Hempstead, 301 NY 86, 92 N.E. 903 (1950).
Unger v. Town of Perinton, 58 AD2d 1020, supra.
Fayetteville v. Jarrold, 53 NYS2d 254, 440 NYS2d 908
97.
98.
(1981).
99.
Town Properties, Inc. v. ~ of Huntington, 143 AD2d
757 [2nd Dep'q, 533 NYS2d 466 (1988); Matter of Franchise
Realty Interstate Corporation v. ZBA Town of Gales, 75 AD2d 1003
[4th Dep't], 429 NYS2d 177 (1980).
100. Matter of National Merritt v. Weist, 41 NY2d 438,393
NYS2d 379 (1977).
101. Levy v. Board of Standards & Appeals, 267 NY 347, 196
N.E. 284 (1935).
102. Sudell v. ZBA, 36 NY2d 312, 367 NYS2d 766 (1975).
Formerly, the same court had allowed an approval of a Y.M.C.A.
building permit based on facts,which had not been entered into
evidence, though they were known to the board members. Von
Kohorn v. Morrell, 9 NY2d 27, 210 NYS2d 525 (1961).
103. Petruzzelli v. ZBA Village of Dobbs Ferry, 181 AD2d 825
[2nd Dep't], 581 NYS2d 105 (1992).
100
104. Coimlanv. Sehermerhorn, 77 Misc.2d 23, 351NYS2d 505
(1973). The court remanded the matter for findings concerning the
result of the board's inspection of the subject premises.
105. Matter of Kraasteuber, 80 NY2d 783, 587 NYS2d 272
(1992).
106. Matter of Pateman, 191 AD2d 568 [2nd Dep'q, 594
NYS2d 809 (1993); Morin v. ZBA of the Village of lrvington, 163
AD2d 389 [2nd Dep't], 558 NYS2d 117 (1990).Two lots in Morin,
joined back to back, were found to be singly and separately owned.
107. Matter of Pateman, ibid.
108. Fine v. Town of Hempstead, 199 AD2d 300 [2nd Dep'q,
605 NYS2d 302 (1993). Conditions which are not reasonably
designed to mitigate defects will also be set aside. See also Castle
Properties Company v. ,4ckerson, 163 AD.2d 785 [3rd Dep't], 558
NYS2d 334 (1990), in which planning board conditions were
109. DiPasquale v. Hask/as, 25 AD2d 490 [4th Dep't], 266
NYS2d 955 (1966).
110. Perlman v. Board of Zoning Appeals of the Village of
Great Neck, 173 AD2d 832 [2nd Dep'q, 570 NYS2d 656 (1991).
111. Finger v. Levenson, 163 AD2d 477 [2nd Dep't], 558
NYS2d 163 (1990).
112. Albert Kemperle, Inc. v. Gunther, 133 AD2d 269 [2nd
Dop't], 519 NYS2d 58 (1987), appeal denied 72 NY2d 804.
113. Conditions relating to hours of operation imposed on the
gnmt of a special permit were rejected in Re One Stop Auto Repair
of Queens, Inc., Queens County Supreme Court, New York Law
101
Journal (2/5/91).
114. Schlosser v. Michaelis, 18 AD2d 940 [2nd Dep'q, 238
NYS2d 433 (1963). See Town of Huntington v. Sudano, 42 AD2d
791 [2nd Dep't], 346 NYS2d 582 (1973), which held a restriction
limiting the number of dogs in a kennel to be proper.
115. Old Country Burgers v. Town Board of Oyster Bay 160
AD2d 805 [2nd Dep'q, 553 NYS2d 843 (1990). See, however, the
gentle treatment afforded a schoo! in Summit School v. Neugent,82
AD2d 463 [2nd Dep't], 442 NYS2d 73 (1981), in which most of
the beard's conditions were declared invalid.
116. Sabutino v. Denison, 203 AD2d 781 [3rd Dep't], 610
NYS2d 383 (1994).
117. St. Onge v. Donovan, 127 AD2d 880 [3rd Dep't]~ 511
NYS2d 700 (1987), often cited for the proposition that conditions
cannot be limited to particular individuals. Another condition,
however, limiting the number of non-employee vehicles that could
be parked on the premises, was not perceived by the Court of
Appeals as an undue interference with a business operation. Once
again, the court illustrated the difficult task facing beards when they
formulate conditions for business operations.
118. N.Y. Life v. Foley, 13 AD2d 768 [lst Dep't],216 NYS2d
267 (1961), upholding a five-year limitation on the grounds that it
would provide the owner with sufficient time to recoup its
investment. Ten years was upheld in Douglaston Civic Ass'n v.
Board of Standards & Appeals, 278 AD 659 [2nd Dep't], 102
NYS2d 582 (1951).
119. Burke v. Cohen, Supreme Court, Richmond County, 13
NYS2d 984 (1939).
102
120. Esdora Realty Corp. v. Walsh, 136 Misc.476, 240 NYS
792 (1930); People v. Deeks, 61 Misc, 1019, 307 NYS2d
914(1969).
121. (A school) Concordia College Institute v. Miller, 301 NY
189, 93 N.E. 2d 632 (1950). (A gasoline service station) Centro
Bldg. Corp v. BZ4 East Hills, 21 Misc.2d 964, 197 NYS2d 869
(1960). Neighbors' consents now appear to be permissible for gas
stations, however. See note 122.
122. Mend v. Fairbrother, 133 Misc.2d 378, 506 NYS2d 514
(1986); £pstein v. Weisser, 278 AD 668 [2nd Dep't], 102 NYS2d
678 (1951). Both concemed consents for gasoline service stations.
123. Baghart v. Walter, 78 Misc.2d 64, 355 NYS2d 39 (1974).
124. Asma v. Curcione, 31 AD2d 883 [4th Dep't], 298 NYS2d
286 (1969).
125. Milton Point Associates v. Clark, 14 Misc. 2d 633, 179
NYS2d 624 (1958).
126. Gina Petroleum, ]nc. v. ZBA Town of Wappinger, 127
AD2d 560 [2nd Dep't], 511 NYS2d 363 (1987). See also Matter of
Searpati v. Feriola, 8 AD2d I11 [2nd Dep't] 186 NYS2d 927
(1963), decided under the General City Law, which held that a
ZBA has power to vary or modify time limitations contained in the
city's zoning ordinance. Although the power in that case derived
from the ordinance itself, the court pointed out that authority exists
in the City and Town Law (267-[5]). The power to vary includes
the power to vary time provisions.
127. American Red Cross v. BT_al of the City of Ithaca, 161
AD2d 878 [3rd Dep'q, 555 NYS2d 923 (1990). Note, however, the
non-profit nature of the applicant and the subliminal judicial favor
extended to such organizations.
103
128. See Dil-Hill Realty Corporation v. Irwin Schultz, 53 AD2d
263 [2nd Dep't], 385 NYS2d 324 (1976). The court rejected the
board's reason for turning down an extension, i.e. the board was
originally unaware that the developer was a person other than the
applicant and was similarly unaware that the town intended to
purchase 34 acres nearby.
129. See Gina Petroleum, Inc. v. ZBA Town of Wappinger, 127
AD2d 560, supra, in note 126.
130. Dil-Hill Realty Corporation v. Irwin Schultz, 53 AD2d
263, 385 NYS2d 324 (1976), where a timely application for an
extension had been made. In Gina Petroleum, supra, the court
said the applicant's right to re-apply had not been foreclosed, even
though the request for an extension had been properly denied by the
board's refusing to consider the application.
131. Town Law, Section 267-b-1; Village Law 7-712-b-1 and
General City Law, 81-b-2.
132. Matter of Tohr Industries v. ZBA of the City of Long
Beach, 74 NY2d 575,549 NYS2d 951 (1989).
133. Matter of Preston, 185 AD2d 273 [2nd Dep't], 585 NYS2d
790 (1992).The applicant "could not foresee that the property would
be upzoned.'
134. Knight v. Amelkin, 68 NY2d 975,510 NYS2d 550 (1986).
135. Michele D'Aless~ndro v. ZBA of Westbury, 177 AD2d 694
[2nd Dep't], 577 NYS2d 79 (1991). A variance had expired after
two years, The court made the dubious claim that the financial
hardship of the prior owner removed it from Amelkin's protection.
This, of course, makes hardship a "personal' matter.
104
136. Wegman's £nterprises, Inc. v. ZBA Town of De Witt, 134
AD2d 898 [4th Dep'q, 521 NYS2d 1011(1986), in which the board
had failed to make a distinction with its prior grants; Rocco lanucci
v. ZBA Town of Oyster Bay, 140 AD2d 343 [2nd Dep't], 527
NYS2d 834 (1988), where the majority thought the facts were
different, but the dissent did not; Ciampa v. ZBA Town of East
Bloomfield, 158 AD2d 925 [4th Dep't], 551 NYS2d 89 (1990), in
which the court said the applicant failed to show 'factual
similarity.' See also Michele D 'Alessandro v. RZA of Westbury,
supra.
137. Cipriano v. BZA City of Glen Cove, 203 AD2d 362 [2nd
Dep't], 610 NYS2d 305 (1994). In Pesek ZBA Town of East
Hampton, 156 AD2d 690 [2nd Dep't], 549 NYS2d 164 (1989), the
court excused the board for not following prior determinations
because the town had come to realize that 'the proliferation of
nonconforming lots is disruptive to the goals of sound planning... ".
138. Matter of Hochberg, 185 AD2d 849 [2nd Dep't], 587
NYS2d 354 (1992).
139. Pesck v. ZBA Town of East Hampton, 156 AD2d 690,
supra.
140. Freddolino v. Village of Warwick ZBA, 192 AD2d 839
[3rd Dep'q, 596 NYS2d 490 (1993). The doctrine of res judicata
forecloses another proceeding or legal action in the same case. 'The
parties~ property, issues, facts and relief" sought in 1989 and 1990
variance applications were "essentially identical.'
141. Matter of Kennedy v. ZBA of Village of Hastings-on-
Hudson, 145 AD2d 490 [2nd Dep't], 535 NYS2d 638 (1988) end
Jensen v. ZBA of Village of Old Westbury, 130 AD2d 549 [2nd
Dep't], 515 NYS2d 283 (1987). In Kennedy, applications were
three months apart; in Jensen, two years. In both cases, the courts
105 ~
found the facts and circumstances identical and refused to hear the
second application.
142. Ireland v. ZB~I of the Town of Queensbury, 195 AD2d 155
[3rd Dep't], 606 NYS2cl 843 (1994). "Res Judicata is not
applicable, however, when the two determinations arise in the same
proceeding. '
143. In Re Pettit, Suffolk County Supreme Court, New York
Law Journal, (5/21190).
144. Matter of Diocese of Rochester v . Planning Board of the
Town of Brighton, I NY2d 508, 154 NYS2d 849 (1956). There is
a limit to accommodation, however. The Appellate Division (2nd
Dep't) required a church to comply with safety regulations when
it housed homeless persons in its basement. Village ofHempstead v.
Roman Catholic Lady of Loretto, 198 AD2d 409, 604 NYS2d 131
(1993). Denial of an off-street parking variance was denied because
of an adverse effect on surrounding properties in Greek Orthodox
Church v. Casey, 150 AD2d 448 [2nd Dep't], 541 NYS2d 56
(1989).
145. Matter of Congregation Darchei Noam, Nassau County
Supreme Court. New York Law Journal (12/31/91).
146. Bright Horizon House, Inc. v. ZBA Town of Henrietta, 121
Misc.2d 703,469 NYS2d 851 0983).
147. Meshidi Jewish Community of Great Neck v. Board of
Appeals of the Village of Great Neck, Nassau County Supreme
Court. New York Law Journal (10/17/91).
148. Harrison Orthodox Minyan Inc. v. Town Board of
Harrison, 159 AD2d 572 [2nd Dep'q, 552 NYS2d 434 (1990).
106
149. Matter of Lawrence School v. Lew/s, 174 AD2d 42 [2nd
Dep'q, 578 NYS2d 627 (1992). The school did not need to
demonstrate a need for expansion in seeking a variance of an
ordinance prohibiting the enlargement of swimmin$ pools.
However, see Matter of Wiltwyck School for Boys v. ZB3 Town of
Yorktown, 14 AD2d 198 [2nd Dep't], 219 NYS2d 161 (1961), in
which the court reached the surprising result that an organization
engaged in the rehabilitation of delinquent boys was not conductingr
a school.
150. See Cellular Telephone Company v. Rosenberg 82 NY2d
364, 604 NYS2d 895 (1993) in which the Court of Appeals, held
that a cellular phone company was a 'public utility' and as such
was subject to a more lenient standard, not to the traditional use
variance test. The applicable standard for utilities had been
previously laid out in Matter of Consolidated Edison Co. v.
Hoffrnan, 43 NY2d 598, 403 NYS2d 193 (1978).
151. See Childrens Hospital of Buffalo v. 7lB.4 City of Buffalo,
181 AD2d 1056 [4th Dep't], 582 NYs2d 317. The Appellate
Division reversed a lower court's (and a board's) denial of a
setback variance on the grounds that 80% of the landowners in the
area were in violation of setback requirements. Its lack of deference
may be duo in some part to the nature of the use and its
philanthropic aspect.
152. Matter of Consolidated F_.di~on Company of New York, 43
NY2d 598, supra, acknowledging character as a proper
consideration, although it cited Conley v. Town of Brookhaven ZB,4,
40 NY2d 309, 313-314, 386 NYS2d 681, which had held character
not appropriate in a public utility case.
153. Greek Orthodox Church, Inc. v. Casey, 150 AD2d 448
[2nd Dep'q, 541 NYS2d 56 (1989).
107
154. /imco Development, Inc. v. ZBA Town of Perinton, 185
AD2d 637 [4th Dep't], 586 NYS2d 50 (1992). See also Blumberg
v. Feriola, 8 AD2d 850 [2nd Dep't], 190 NYS2d 543 (1959), in
which a conditional contract vendee ('one who knowingly enters
into a contract to purchase for a prohibited use') was held bound by
the ~elf-created hardship limitation.
108
ACCESSORY USES
HOME OCCUPATIONS
NONCONFORMING USES
Though the three titled topics (accessory uses, home
occupations and nonconforming uses) will be the subject of
another handbook, they are so often debated in hearing rooms
in the course of applications for variances, special permits
and administrative appeals that they cannot be ignored here.
Definition: Accessory Use
An accessory use is one that is customarily incidental to
the principal use conducted on the premises. This standard
definition, however, may be modified by local adaptations,
since municipalities are prone to restrict and limit accessory
uses at their pleasure? Home occupations in residential zones
may be traditional accessory uses (that is, customary in or
about a dwelling) or expressly permitted by the local
ordinance.
Code provisions generally spell out which specific home
occupations are considered accessory, but municipalities do
not always share the same ideas as to which will be allowed
or excluded. Some communities regulate accessory uses via
the special permit route under a general classification of home
occupations. To some extent, the degree of municipal control
depends on the exactness of the code language?
The ZBA plays an important part in the regulation of
accessory uses.
I10
The, Role of the ZBA
Administrative appeals often serve as vehicles for those
who claim their use is an accessory one. ZBAs then may be
called upon to decide such matters by defining terms in the
ordinance.
Since some accessory uses require special per,nits, applicants
who resort to that procedure find it necessary to fulfill the
ordinance conditions that are made prerequisites to granting
the permit. Probably the most common method for obtaining
permission for an accessory use is the variance. If the
accessory use is not allowed under the ordinance, a use
variance is required. If, on the other hand, a particular
dimensional requirement cannot be complied with, the
applicant will seek an area variance.
1. The Interpretative or Avveal Function
When the phrase "or similar persons" follows enumerated
professions (doctor, lawyer, etc.), permitted as accessory
uses, questions arise about uses not listed. Is a funeral home,
for example, permitted as an accessory use in a residemial
district? Is a real estate broker? Courts long ago decided that
neither undertakers nor brokers were included as professional
accessory uses in a residential zone, unless the ordinance
specifically permitted them)
Judges, as we have said repeatedly, give great weight to
board interpretations in such matters, but they also examine
the meaning of custom (what is customarily incidental?).
Custom, as you might imagine, varies from time to time and
place to place. Beauty parlors were once considered accessory
in residential districts in the suburban areas around and near
New York City, but it is extremely doubtful that this is still
so.4 In fact, the use is rarely described as a "beauty parlor."
111
2. The Variance Function
Despite prohibitions in the ordinance, a landowner may make
a request to conduct an accessory use or even expand a
permitted accessory use in a way that is not allowed. Should
the owner wish to operate a prohibited funeral home or real
estate office accessory to a dwelling in a residential district,
or to enlarge the boundaries of an accessory use that is
allowed (encroach into a side yard, for example), the remedy
is in either case a variance.
A use variance is needed if a person seeks to operate a
funeral home or a real estate office, but an area variance is
needed to enlarge accessory use boundaries, such as a
landowner who needs permission to locate a tennis court or
swimming pool within a rear, from or side yard? In one
case, a lawyer wanted to use a residence for an office, but at
the same time, to allow a non-resident partner to share the
professional practice. The ordinance limited the right to
conduct the practice to a person residing on the premises?
Such an application, though it concerned only an accessory
use, nevertheless required a use variance. The tests and
standards enumerated in Chapter III must be complied with
when use or area variances are requested even for accessory
USes.
3. Alternative Relief Combining Two F~t~ctions
Applicants can bring an administrative appeal and apply for
a variance in a single application or proceeding. A lawyer,
who believed that the ordinance required only a transient
residence could ask the ZBA for an imerpretation by way of
an administrative appeal, while seeking a variance at the same
time. This would result in a more expeditious resolution of
the problem in case his interpretation was not accepted.
Additionally, zoning boards may entertain cross appeals by
112
other parties. A developer, for example, need not wait for a
resolution of a neighbor's appeal which objects to the
issuance of a building permit. The developer, as part of the
same proceeding, can cross appeal for a variance (See Clowry
v. Town of Pawling, 202 AD2d 663 [2nd Dep't], 609 NYS2d
299 [19941)~
Obviously, alternative relief is available for ali kinds of
appeals and applications to a ZBA, not just for those
involving accessory uses. Alternative requests for relief make
for more efficient use of time for both ZBAs and applicants.
Local rules, however, may modify this practice and impose
additional filing charges.
Regulation of Accessory Uses
Secondary (accessory) uses that are not listed in the ordinance
as either permitted or prohibited, but are accepted by nearly
everyone as customary in a residential zone, often raise
questions for ZBAs to pass on. Such an issue arose in
connection with a skateboard ramp in a large lot area of
Westchester (see note 7). Is a tennis court or swimming pool
permitted, even if the ordinance is silent?
The answer is, "yes." Such recreational uses, whether
expressly permitted or not, have been held by the courts to be
customary and therefore accessory? Local government, of
course, retains the right to prohibit or modify these uses.
Frequently, zoning ordinances contain restrictions on the
siting of accessory uses. Typical are prohibitions against
putting basketball hoops or tennis courts in the front yard?
For safety's sake, an ordinance may call for a fence of
specified size around a swimming pool. Applicants who wish
to modify these requirements must still obtain area variances.
113
Accessory Uses in Commercial Zones
Although we typically think of accessory uses as being
exclusively in residential areas, they may also occur in a
business zone, or in any other zone. A bar for the
consumption of alcoholic beverages was held to be
customarily incidental, accessory as a matter of law to the
principal business of a hotel? The test remains the same in
any zone. Is the secondary use customarily incidental to the
principal use?
If the question of custom has been researched by municipal
counsel and no precedent found, the board must then make its
own inquiry. It is then not a matter for the board's counsel.
Rather it is for the board itself, however difficult changing
technology and business practices make interpretations and
inquiries of this kind. For example, is a convenience store an
accessory use to a gas station? One court decided that it is.m
Accessory Apartments
Many suburban and exurban communities have been
experiencing a grassroots demand for what are called
accessory apartments, though the use of the word "accessory"
in this context is somewhat misleading.
These apartments are not "accessory" in the technical sense
just discussed. That is, they are not customarily incidental to
the main or principal use conducted on the premises. If they
are incidental at all, they are made so, not by custom, but by
the ordinance itself. Ordinances typically grant single-family
owners the right to install "second" living units (called
accessory apartments) that would otherwise be prohibited in
a single-family zone.
114
Extra living units have been increasingly allowed by local law
because many landowners have found taxes or other carrying
charges onerous. This is especially true of elderly persons
who often want to live with their children while they still
enjoy the privacy of their own apartment.
1. Reeulatorv Method. v
Accessory apartments have been treated by zoning ordinances
in several different ways, the most common of which is to
allow them by special permit. The ordinance in such cases
specifies that if certain conditions are met (Lc. a minimum
square footage for the entire dwelling and/or a maximum
square footage for the apartment), a permit for an accessory
apartment may be granted. Sometimes, a prescribed number
of parking spaces is mandated, or the number of front
entrances might be limited.
Ordinances also differ as to which agency will be authorized
to issue the special permit. It may be the planning board, the
legislatiVe body or the ZBA. One community established a
separate board, distinct from the ZBA and the planning
board, and to the stlrprise of some lawyers and planners, the
municipality's authority to do so was upheld by the court?
The duration of these special permits are frequently limited
by zoning ordinances, but they are usually renewable upon
application to the board. It now seems that ZBAs cannot limit
variances as to duration or restrict their application to
particular individuals, but boards have wider latitude in the
ease of accessory apartment permits.
Many communities specifically prescribe such limitations, and
no court has yet held these local laws invalid. In fact, in a
case in which a local law empowered a special board (not the
ZBA) to issue permits for the conversion of one-family
115
houses to two-family, the court held that the permits could be
limited to two years and terminate on the death of the owner,
or on transfer. The ordinance was drawn pursuant to the
Home Rule Law, however, so that a local law may be a
necessary predicate.
Cottage Industries
The introduction of FAX machines and personal computers
with modem capability, together with the spread of.overnight
mail and package delivery services, has made it possible for
more people to conduct businesses at home. These home
occupations are often hard to supervise or monitor, but their
future proliferation is certain to present ZBAs with numerous
problems of interpretation.
Few ordinances have delineated the permitted boundaries for
these new home occupations, although recently many
communities have begun to re-examine relevant provisions in
their codes. Meanwhile, ZBAs are likely to face vexatious
issues concerning the kind and extent of businesses that can
be carried on in the home without too much discomfort to
neighbors. Those home occupations, which are not traditional
accessory uses (or expressly allowed), are literal breaches of
the law. After a violation has been issued, the homeowner
must either discontinue the use or bring the matter before the
ZBA for consideration.
The owner's present alternatives are limited. It may be
claimed that the secondary use is a hobby and thus accessory.
Any indication of financial profit will, however, reduce the
chances of this argument being successful. The owner may
also try to fit the business pursuit itself within the
classification of accessory use as contained in the language
(express or implied) of the ordinance.
116
Finally, the owner may seek relief through the issuance of a
use variance, though this would require hurdling the difficult
tests that such an application entails. Unfortunately, the
strictness of the use variance tests makes it difficult to make
reasonable adjustments in this area.
Nonconforming Uses and Structures
Laypersons often use the term "grandfathered" when
discussing nonconformity. As applied to zoning,
grandfathered or "nonconforming" means that a use,
structure or lot does not conform to, or comply with, the
present requirements of the zoning code, but that the
existence of the use, structure or lot predates the code
requirements and is therefore permitted to continue, to be
maintained, or (in the case of a Io0 to be built upon
despite, or in contravention of, current prohibitions.
Although the principles of nonconformity are based upon the
doctrine of vested rights, the courts have nevertheless adapted
these principles to the various kinds of nonconformity. Thus,
the rules that apply to lots, structures and uses are not always
the same. Space does not allow these differences to be
discussed here. Suffice it to say that owners who contest the
application of such rules generally seek relief through the
variance or administrative appeal process.
ZBAs listen to requests for relief as a result of legislative
enactments that limit the duration or extent of nonconformity.
Typical are (1) amortization statutes that provide for a
nonconforming use to end after a reasonable period has
passed during which the owner could have recouped its
investment, (2) ordinances that terminate the nonconforming
use or structure if more than 50% (or some other percentage)
has been destroyed by fire or other catastrophe and (3)
117
ordinances that end the use if it is discontinued for a
prescribed period.
Some codes require that an intent to abandon be shown,
before the nonconforming use is lost by the passage of time.
Most, however, require only a statutory period of
discontinuance. Recently, the Court of Appeals upheld a
novel ordinance terminating the nonconforming use of a
mobile home in the event of transfer of title? The extent of
this ruling is yet to be determined.
All of these laws, when challenged on grounds other than
their constitutionality or legality, begin with an application to
the ZBA. Most often, applicants seek to vary code
provisions. Use or area variances, when applied to
nonconforming uses, are then governed by the same tests and
standards as have been previously set forth in this book. On
other occasions, applicants ask ZBAs for an interpretation of
the statute that is favorable to their cause.
Court Interpretations
Statutes, even if clearly drafted, still may require
interpretation. If two apartment buildings on the same lot are
both nonconforming, and one building is destroyed, has the
50% threshold been met so as to terminate the vested right?'z
Ifa mining operation has not mined the entire parcel, does an
attempt to do so constitute an expansion? Such issues,
usually addressed by a ZBA, provide an indication of the
kinds of interpretation problems that may arise.
Some limitations on nonconformity have been judicially
imposed. Courts have refused to protect nonconforming uses
that are sporadic or those whose termination would cause no
financial harm to the owner. These uses also raise questions
118
of fact or interpretation. Was the use actually sporadic, or
will termination result in financial harm? The forum for
resolving factual issues of this kind is the ZBA. The process
is an administrative appeal.
Nonconforming Lots
A line of cases deals with substandard residential lots which
initially conformed to the code, but do no longer. In some of
these cases, the municipalities have passed legislation after the
owner's acquisition of title, restricting the use of the lot by
altering the physical and dimensional requirements necessary
to build. This issue has already been discussed under the
section titled Kransteuber, page 70 et seq.
As a result, where local government has legislated these
restrictions, area variances have been difficult to obtain.
Unless the applicant proves a taking, the obstacles to
construction have proved to be nearly insuperabled~ The
takings test, as has been stated previously, consists of
showing that the owner has been deprived of nearly all value
of the land.
Rather surprisingly, the outcome is quite different when local
governments remain silent on this issue. If no local enactment
exists restricting the owner's right to a remedy, the applicant
is entitled to a variance as a matter of right?
ACCESSORY & NONCONFORMING USES
Notes for Otapter IV
I. See, for example,the ordinance of the Town of Islip as
amended 3-15-88. "Permitted...profeasional home occupations: the
office of a physician, lawyer, architect, engineer, dentist, chiropractor
or accountant... ,however, that such use shall be in the main building
and occupy not more than 25 % of the total floor area of the unit. '
This wording, which is quite typical, does not include or allow an
optometrist (t3oldstein v. BZ,4 Hernpstead, Il3 Misc. 756, 449
NYS2d 910 [1982]).
2. Winnie v. O'Brien, 171 AD2d 997 [3rd Dep't], 567 NYS2d
943 (1991). A dentist applied for a special use permit that would
allow him to install a chair with dentistry equipment in a room of his
home. The ordinance contained no provision for any type of
professional office, but the definition of home occupation was held
sufficiently broad ~o grant him a special permit.
3. Bond v. Cooke, 237 AD2d 229 [3rd Dep't]262 NYS2d 199
(1932) Ia funeral home]; People v. Cully, 109 Misc.2d 169, 442
NYS2d 847 (1981) [a real e~tate broker].
4. See Doyle v./~nrter, 79 NY2d 592, 584 NYS2d 417 (1992)
where one of the minor uses prohibited in the residential zone was ·
"beauty parlor. · The practice of 'electrology· has been held not to
be a profession in People v. Marcus, 142 Misc. 2d 908, 538 NYS2d
928 (1989).
5. Farrell v. B7~4 Village of OM We-~tbury, 77 AD2d 875 [2nd
Dep't], 431 NY$2d 52 (1980) Ia tennis court].
119
6. White Plains v. Sassower, 97 AD2d 452 2nd Dep't], 467
NYS2d 418 (1983). Both the ZBA and the court denied the request.
7. (A skateboard ramp) Collins v. Lonergan, 1993 App. Div. Lexis
10567 [2nd Dep't], 603 NY$2d 330 (1993), but judges have issued
confusing pronouncements on professions. Faced with a silent
ordinance, courts would allow doctors, laWyers and architects in a
residential zone. But note Winnie v. O'Brien, supra,when
communities begin to regulate. The decision allowing a dentist to
practice rested on the language of the ordinance.
8. See Matter of Hochberg, 185 AD2d 849 [2nd Dep't], 587
NYS2d 354 (1992), forbidding tennis in the front yard.
9. Gauthier v. Village of Larchmont, 30 AD2d 303 [2nd Dep't],
291 NYS2d 584 (1968). This customary use required no local
ordinance for support.
10. E. uon Corporation v. Board of Standards and Appeals, 151
AD2d 438 [lst Dep't], 542 NYS2d 639 (1989).
11. Sherman v. Frazier, 84 AD2d 401 [2nd Dep't], 446 NY$2d
372 (1982).
12. Village of Valatie v. Lynette Smith, 83 NY2d 396, 610
NYS2d 841 (1993). This recent case involved a mobile home that had
been inherited. Since the inheritance was a 'transfer of title,' the
legatee was held bound by the ordinance which terminated the
nonconforming use. The mobile home could not remain on the site in
a residential zone.
13. Matter of Pelham Esplanade, Inc. v. Board of Trustees of the
Village of Pelham Manor, 77 NY2d 66, 563 NYS2d 759 (1990).
14. TrapRock Corp. v. Town of Clark. xtown, I AD2d 890 [2nd
Dep't], 149 NY$2d 290 (1956) aff'd 3 NY2d 844.
120
15. Matter of Kransteuber, 80 NY2d 783,587 NYS2d 272
(1992).
16. Matter of Pateman, 191AD2d 568 [Prod Dep't], 594 NYS2d
809 (1993).
121
PROCEDURAL HIGHLIGHTS
Notice
We have already seen that many rules and standards are
applied universally to variances, administrative appeals and
special permits. Legal principles like stare decisi$ and res
judicata affect all kinds of board decision-making. The same
is true of the standing, exhaustion of remedies and ripeness
doctrines.
Most of these topics have been discussed in this book under
only one heading, but have been cross-referenced to other
sections. We have done this to avoid repetition as much as
possible. When rules or principles, such as those concerning
board-imposed conditions, lapses or revocation, vary from
subject to subject, the differences have been pointed out in
the appropriate section.
This last chapter deals with relevant procedural requirements.
It points out the main notice and voting requirements, as well
as a few other miscellaneous matters which affect variances,
administrative appeals and special permits.
1. Startine the Process
As we have mentioned several times previously, every
administrative appeal or variance application that reaches the
ZBA begins as a result of the action (or occasionally,
inaction) of an administrative official such as a building
123
inspector or code enforcement officer. It must be clear,
however, that the official has really acted. A building
inspector's letter outlining procedures to follow for
subdivision approval or for an area variance is not the kind
of decision or determination that would serve to start an
appeal to the ZBA.~
The basic rules as to who can appeal (aggrieved parties) have
also been spelled out in detail in Administrative Appeals,
but they are equally applicable to variances and special
permits.
A basic constitutional right in matters involving real property
is notice. Persons with an interest in real property have a
right to be notified before their rights are taken away or
modified. Notices are also required by statute to be given to
members of the public (such as those living near property
which is the subject of an application for a variance or special
permit). The law quite rightly assumes that such persons have
a vital interest in applications made to the board.
Most procedures affecting ZBA processes are regulated by
state and~'local legislative laws, but occasionally a court
decision is necessary to guarantee that parties or members of
the public are not deprived of adequate notice. In one case,
a board switched an application from a use variance to an
area variance in the middle of the hearing. This was held
improper by the court, since the board denied notice to those
who might have attended the hearing had they known its true
nature.:
The New York State statute fixes the aggrieved party's time
to appeal an administrative official's order, requirement,
124
decision, interpretation or determination. Thus the
administrative appeal (or variance) must .be brought within 60
days after the official's order, etc. is filed in the clerk's
office. The applicant does this by filing a notice of appeal
with both the ZBA and the administrative official.
One problem with this procedure is that persons who may be
affected by the granting of a building permit usually receive
no official notice of its grant. There is no requirement that
notice be sent even to adjoining owners. Therefore,
development may proceed to a significant extent before
affected neighbors are alerted. The 60 day notice does
nothing to alleviate this problem. It is not clear how the
courts would deal with a complainant who discovers a
questionable aspect of a permit's issuance six months to a
year after it has been issued.
A notice of appeal sets forth the grounds for the appeal and
the particular relief sought? The ZBA will then fix a
reasonable time for hearing the matter and give the public
notice of the hearing in a paper of general circulation in the
town, village or city. This notice must be published at least
five days prior to the hearing,~ at which time notice must
have also been mailed to the parties. Local rules generally
provide for additional notice by mail to persons owning
property within a certain radius of the subject property. Local
rules should always be consulted about such requirements.
If the subject property is located within 500 feet of a state
park or parkway, notice must also be sent (at least five days
before the hearing) to the regional parkway commission
having jurisdiction over such park or parkway? Notices must
also be sent within the same time frame to the county,
metropolitan or regional planning agency as required by
125
General Municipal Law (239-m). This section requires the
ZBA, as a referring body, to send special use permit and
variance applications together with "other authorizations
which a referring body may issue under provisions of any
zoning ordinance or local law to the county, metropolitan or
regional planning agency." Presumably, this language
includes administrative appeals.
The planning agency or commission is obligated to report
back within 30 days. If it doesn't, the ZBA may proceed
without the report.6 If the planning commission disapproves
of the application, however, the ZBA can override the
disapproval only by a vote of a majority plus one (a vote of
4-1 on a five-person board).
By state law, the ZBA must make its decision no later than
62 days after the hearing, unless the time is extended with the
consent of the applicant and the board.? No penalty is
prescribed, however, for the board's failure to follow this
procedure, nor does the statute create any presumption
concerning the disposition of the application. The board's
decision must be filed with the clerk of the municipality
withinfive business days after it is rendered and a copy must
be mailed to the applicant?
Environmental Review
1. SEQRA (SEQR)
ZBAs must comply with the State Environmental Quality
Review Act (SEQRA). An environmental assessment form,
filled out by the applicant and approved by the board, should
accompany every application (variance, special permit or
administrative appeal). Although, in general, other
126
government bodies usually serve as the lead agencies in
SEQRA proceedings, there are rare occasions when the ZBA
may act as the lead agency. A full treatment of SEQRA law
is beyond the scope of this book, but we note that the
SEQRA statute lists Type I, Unlisted, Type II and Exempt
Actions. These lists explain which activities are subject to
SEQRA review. Counsel should refer to them when in doubt.
Type I. These listed actions require a full
environmental assessment form (EAF) and a declaration,
either positive or negative. A positive declaration requires a
full environmental review. Before making a declaration, the
board is required to take a "hard look" and make a "reasoned
elaboration."
Unlisted. These actions need a short EAF; otherwise
the process is the same as Type I.
Type II. Actions under this section require no
environmental review process. No SEQRA review is required
for an appeal to the ZBA for an interpretation, nor for most
area variances, i.e. yard and frontage variances. (Regulations
expected to be issued soon call for all area variances to be
treated as Type I1 and exempt.) Use variances, especially
those found to affect the character of the area, may be subject
to SEQRA review.
The New York State SEQR Handbook makes the following
suggestions for SEQR as applied to a use variance:
The standards for granting use variances require an applicant
to show that (I) application of the zoning regulations would
deprive the applicant of all economic use or benefit from the
property; (2) the alleged hardship is unique to that property;
127
(3) that the variance, if granted, will not alter the essential
character of the neighborhood; and (4) that the alleged
hardship is not self-created. If the ZBA finds that tests 1,2
and 4 are met, it must apply SEQR before applying test 3,
determining what conditions should be applied.
Note that test I is misstated. It follows the language used in
the first codification, but later liberalized by an amendment.
Exempt (Excluded). Requires no environmental
review process.
Miscellaneous Matters
1. Assistance and lns~ectiott$
ZBAs have the authority to call upon any department,
agency or employee of the municipality for such assistance as
shall be authorized by the legislative body in connection with
variances, administrative appeals and special permits.
The chairperson may issue subpoenas to compel the
attendance of witnesses, although a court order is required to
punish for contempt. A New York attorney also has the right
to issue subpoenas and to enforce them.
Closely allied to the question of subpoenas is the right to
make physical inspections. Entry into a person's house
requires a warrant, even if the use of the premises is illegal.
The law makes a distinction between the search of
commercial and residential buildings, but that does not mean
all commercial establishments may be entered without a
warrant.
128
Warrantless searches are sometimes held permissible under
the U.S. Constitution in the case of industries that are heavily
regulated, but New York State's Constitution, as interpreted
by its courts, is much more sensitive to individual rights. As
a rule, therefore, it is best not to enter buildings of any kind
without permission.
2. Q~orttm$ and Votine
The Hconeurring vote of a majority of the members of the
board of zoning appealsH is necessary to reverse an order of
an administrative official or to grant a variance Crown Law
267-a-4 and comparable sections of the Village and General
City Law). Note that the statute speaks of the members of the
board, not of a quorum. A quorum is a majority of the
members who must be present to conduct business. Thus, if
three members of a five-person board are present (a quorum),
all three votes (a majority of the members) are required for
a denial of an administrative order or the grant of a variance.
If a super-majority is required under the General Municipal
Law, the three-person quorum would then be unable to render
an approval. Voting rules for special permits are not specified
in the statute.
3. Findings
Finally, a word must be said about a much neglected subject
that has received relatively little scholarly attention. Findings,
although mandated by statute in many states, are required in
New York only by judicial decisions.
The courts, however, have spoken frequently. The general
tenor of their remarks is that boards have to set forth in the
record exactly how they reach their decision and must
disclose the evidence upon which their determinations are
129
based.~ Board statements cannot be merely conclusory; a
factual finding is required,l° Findings cannot be sloppy or
vague, for if they are, judges have no way of reviewing
board determinations.
Especially bothersome are those cases where boards secure
information outside the hearing room. Records or licenses not
found in the transcript may cause a court to overturn a ZBA
determination unless "the whole record contains proof of such
quality and quantity as to generate a conviction" that a fair
and detached fact finder would extract a "conclusion or
ultimate fact reasonably, probatively and Iogically."n
Nothing prohibits board members from relying on their own
personal knowledge so long as it is set forth in the record?
In Chapter IH, a court decision upheld a board's opinion as
to what constituted a reasonable return, because the board's
opinion had been set forth in the record.
After the hearing is closed, no more evidence should be
allowed without affording the opposing party an opportunity
to rebut it. Although a few past decisions indicated the
contrary, the rule today seems to be that such evidence is not
permissible without the opposing party having this
opportunity.~
The findings requirement grows ever more stringent. It is
testimony to the fact that ZBAs are moving toward a more
rigorous decision-making process. The rules, tests and
standards set forth in this book provide further evidence of
this trend~
PROCEDURAL HIGHLIGHTS Notes for Ou~pter V
1. Brenner v. Snaido, 156 AD2d 559 [2nd Dep't], 549
NYS2d 68 (1989).
2. Burke v. Village of Colonie ZBA, 199 AD2d611 [:}rd
Dep't], 604 NYS2d 343 (1993).
3. Village Law (7-712-a[5]); Town Law (267-a [5]); General
City Law (81-a ([5]).
4. Village Law (7-712-a [7]); Town Law (267-a [7]);
General City Law (81-a [7]).
5. Village Law (7-712-a [10]); Town Law (267-a [10]);
General City Law (81-a [10]).
6. Committee to Preserve the Character of Skaneateles v.
Major, 187 AD2d 940 [4th Dep'q, 591 NYS2d 648 (1992).
7. Village Law (7-712-a [8]); Town Law (267-a [8]);
General City Law (81-a [8]).
8. Village Law (7-712-a [9]); Town Law (267-a [9]);
General City Law (81-a [9]).
9. Collins v. Behan, 285 NY 187, 33 N.E. 2d 86 (1941).
10. Community Synagogue v. Bates, 1 NY2d 445, 154 NYS2d
15 (1956).
130
1 I. 300 Gramatan Avenue Associates v. State Division of
Human Rights, 45 NY2d 176, 181,408 NYS2d 54 (1978).
12. See Sudell v. Zoning Board of Appeals, 36 NY2d 312, 316
NYS2d 766 (1975).
13. Matter of OmnabuiM USA #), Suffolk County Supreme
Court., New York Law Journal (10/28/92).
131
INDEX
ACCESSORY USES~ HOME OCCUPATIONS~
NONCONFO~vaNG US~.S (109-118)
Accessory apartments
Accessory use-defined
Alternative relief
Cottage industries
Custom
Customarily incidental
Expansion of accessory use
Home occupations
In commercial zones (accessory uses)
Interpretative function-accessory uses
Nonconforming defined
Nonconforming lots
Nonconforming uses
Court interpretations
Nonconforming uses end structures
Recreational uses as accessory uses
Regulation of accessory apartments
Regulation of accessory uses
Special permits for accessory apartments
Variance for accessory uses
Accommodation-certain uses
Adjoining owners-notice (lack thereof)
Administrative action
Letter of suggestions inadequate
Alternative relief
ADMINISTRA?IVE APPEALS
Aggrieved person
Arbitrariness
Building inspector's appeal
Deference
(1-1s)
113-115
109
II1-112
115-116
110
I10
111
109-111,115-116
113
110
116
118
116-117
117-118
116-117
111
114-115
112
114
Ill
81-$3
124
122-123
123
111-112
12-14
6
13
5
Index
Denial prerequisite
Due process concerns
Exhaustion of remedie~
Exceptions:
Factual disputes
Inaction
Interpretation
I~gal error
Official arbitrariness
Rational basis (interpretations)
Res judicata
Ripeness
Shmding
Stare decisis
Substance of appeals
ZBA appeals
Adult store
Advisory opinion-planning board
Aggrieved parties and persons
Alternate way (to obviate problem)
Alternative relief
Appeals to ZBA by municipality
Appeals by ZBAs
Appellate jurisdiction
Arbitrary and capricious
Area variance defined
Article 78 proceedings
Assistance of government departments
Balancing equities-public v. private
Berthing center-medical use
Board knowledge-need to place on record
Board's opinion-rate of return
Bronxville v. Francis
Building code-variance disallowed
Building inspector's appeal
Building inspector's error of law
Index
12-13
10-11
7-10
7-8
5..6
6-7
1-6
5-6
6
3,5
15
7-10
13-14
15
1-7
12
2,4
76
12-14
56,58-59
111-112
13
12
4O
38
54-62
39-40, 54
7, 38
127
56,61,68-69
5
70,129
45
37
13
6
Index
Burden/standard of proof 20,24,65-70
C.O.-arbitrary denial 7
Cardozo-Fordham Manor 38
Cellular phone 2,4
Character of neighborhood altered 41,49-52, 57-58
Character- definition problem 49-52
Citizens for Ghent, Inc. 44
Clark v. BT~ Town of Hempstead 51
Clowry v. Town of Pawling 112
Codification (1991-1992) 26,39,46,64
Commco v. Amelkin 12
Community pressure 13,23
Conditional uses (Special permits) 20-29
Conditions-board imposed 24-26, 72-75
Conditions-variances 72-75
Conformity (character) 50-51
Consent (by planning board) 76
Consents (of neighbors) 29,75
Constitutional challenges 8
Constraints (on variance power) 37-39
Conversion to two-family house-kind of variance 55-56
Cottage industries 1 15-116
Cross appeals 111-112
Daytop Village 63
De minimis variance 59
Deference 5, 38,45,66
Denial prerequisite 12-14,40
Inapplicable to special permit 12
De novo hearings 10-11
Density-increase 56
Dog kennel 52
Dolan v. City of Tigard 25, 73
Doyle v. Amster 68
Due process concerns 10-11
Enabling Act 36-37
Environmental conditions 57-58
Error in law by official 6
Exhaustion of remedies & ripeness 7-10
iii
Exceptions to exhaustion doctrine 8
Extensions-variances 76-77
'Eyes Open" rule 53-54,83
Factual disputes 5-6
Fayettville v. Jarrold 43,44
Financial injury-area variances 60,63,68-69
Fiore v. Town of Southeast 52
Floating zones 50-51
Forrest v. Evershed 42,44
Fuhst v. Foley- test 58,60
Fulling v. Palumbo 68-69
Generalized objections 23
Gregory v. Cambria 64
Hardship requirement-exceptions 41-42,81-83
Hardship-statutory definition 41
Holmes, Oliver Wendell 46
Home Rule Law 63,115
Home occupations 109-I 11,115-116
Homogeneity (character) 50-51
Hoover, Herbert 36
Hospitals-accommodation 81-83
Impact of variance 56-58
Inability to sell 42-44
Inaction (administrative) 6-7
Interpretation 1-4
Involvement in business details 26,74
Illegal conditions 74-75
Kingsley v. Bennett 42,45
Kransteuber, Matter of 46,70,71
Landmarks-religious organizations 83
Land under water 5
Lapses 76
Limiting variances as to duration 74-75
Limitation of variances to particular individuals 74
Local options- to alter zoning rules 62-65
Lot lying in two zones-unique 48
Loujean Properties v. Oyster Bay 47
Mandamus 7
Mandamus-(short-cutting process)
Miniature golf course
Minimum variance
Mistake-not grounds for variance
Moore v. Nowakowski
Municipality es aggrieved person
Need (to vary)
Neighbors' consents
Newspaper notices
New York City
Nexus
Nollan v. Calif. Coastal Comm.
Nonconforming lots
Nonconforming uses-registration
Nonconforming uses, structures
Non-profit institution
O'Keefe v. Donovan
Odd shaped property-unique
Off-street parking
Otto v. Steinhilber
Paplow v. Minsker
Parks and parkways-notice
Party denied es aggrieved person
Party opposing grant as aggrieved person
Personal inconvenience
Planning agencies-notice
Planned Use District (PUD)
Planning board consent
Power ( to vary)
Practical difficulties
Preemption
Previous code violation
Primary residence
7
4
41
61-62
44
12-13
36
29,75
124
11,36,62-63
25, 73
73
70-72, llg
11
10,11,116-1 1 7
2,4
61
48-49
40,55
40,41
53
124-125
12-13
12
61-62
125
50.51
76
36-37
36-37,56,60,
68,71
63-64
22
2,4
Index
Index
PROCEDURAL HIGHLIGHTS (122-129)
Assistsace from other departments
Board knowledge (findings)
Environmental review
Filing decision
Findings
Fixing the hearing date
Local rules
Notices-the right to receive
Notice to county planning agency
Notice to parks and parkways
Outside information
Post-hearing evidence
Procedural requirements
Qnorums
SEQR^ (SEQg)
Starting the process
Subpoenas
Time limit on decision-nuddng and filing
Time to appeal to board
Voting
Warfares for entry
Public recrealion-meaning of
Public Utilily
Purchase with knowledge
Quantity of proof-variances
Quantity of proof-special permits
Quasi-judicial (vs. administrative function)
Q~orol-n8
Rear yard-property in two zones
Reasonable return
Rehearing
Religion-accommodation
Renewals vs. new variance
Res judicata
Residence-home occupation
Index
vi
127
129
125-127
125
128-129
124
124
127-129
122-125
125
124-125
129
129
122-129
128
125-127
122-123
127
125
124
128
127-128
2,4
2,4,24,81-82
53,54
65- 67
24
12
128
3,4,5
41-48,83
80
81-83
77
15, 80
2,4, 109-111,115
Revocation of special permits
Revocation of variances
Ripeness
Ryan v. Miller
Safety valve- variance
Self-created (hardship and difficulty)
Simultaneous/alternative relief
Single & separate ownership
Size of variation
Special exception (permits)
Standing
Mortgagees
Proximity
Special damage
Tenants
Vendees (contract)
Zone of interest
Substance of appeals
"Substantial" standard
SPECIAL ~ERMITS (20-29)
Applicable to dimensional requirements
Authority
Board-imposed conditions
Burden and amount of proof
Complying with conditions
Condition as to death
as to business details
as to season
different from variance
limited to owner
Consent- planning board
Consents-neighbors
Creating a nuisance
Fear of traffic
Generalized objections
Legislative issuance
Index
vii
28
77-78
7-10
42,45
36,38
41,53-54,57,59-
60,83
26-28,111-112
70-72
59
20-29
13-14
14
14
14
14
14
14
1-7
57,59
21
20-21
24-26
20,24
21-22
25
26
26
25
25
29
29
22
22
23
28-29
Nexus
Non-traditional use
Permit Denials
Presumption for granting
Previous code violation
Revocation of permits
Simultaneous relief-with variance
Staadard of proof
Untrammeled discretion
Traffic exacerbated
Vaguely drawn standards
Standards (area variances)
Standing
Stare decisis
Statewide land planning
Substandard lots-nonconforming
Supersession
Swampy land-unique
Takings test
'Too far' regulation-taking
Underwater land-used to compute
Uniqueness
Use variance defined
Use variance-statutory tests
Utilities (public)-accommodation
VARIANCES (36-83)
Accommodation
Alternate way standard
Arbitrary & capricious
Area variance
Alternate way
Burden of Proof
Character
Conversion to two-family
Definition
De minimis
Index
viii
25
23
22-24
21,24
22
28
26-28
20,24
28-29
22
23
54-62
13-14
15, 78-80
65
70-72
64
49
4647
46
5
41, 4849
40
40-54
24,81-82
81-83
56,58-59
38
54-62
56,58-59
67
56-57
55-56
54
59
Index
Density
Mistakes
O'Keefe v. Danovan
Personal inconvenience
Self.created hardship
Standards
Subst:mtial
Article 78 proceedings
Bronxville v. Francis
Burden of proof
Area variances
Doy/e v. Amster
Fulling v. Falumbo
Use variances
Vilardi, Matter of
Cardozo,Judge
Cbaraeter change
Codification
Conditions
Illegal
Permissible
Consents by neighbors and planning boards
Deference
Definitions, tests, standards
Dolan v. Tigant
Enabling Act
Environmental effect
History of variances
Kransteuber case
Lapses
Renewal v. new variance
Local options
Daytop Village
Gregory v. Cambria
Home Rule Law
Preemption
Supersession
Mandamus
56
61-62
61
61-62
57,59-60
56-62
57,59
38
40
65-70
67-69
68
68,69
66-67
68
38
41,49-52,57-58
:59,46,64
72-75
74-75
73-74
75-76
38,45,66
39-62
73
36-37
57,58
36-39
70-72
76-77
77
62-65
63
63
63..64
64
38
Neighbors' consents
Nexus
Nollan v. California
Non-zoning laws-variances
Off-street parking
Otto v. 8~einhilber
Planning board consem
Pr~¢ticel difficelty
Quantum of proof
Rate of return
Re~ Judicata
Revoking variances
Safety valve
Self-created hard~hip
Substantial standard
Stare decisis
Uniquene~
Unnecessary hardship
Use variance
Definition
Distinguished from area variance
Exception ~o tests
Fayetteville v. Jarrold
Inability to sell
Minimum variance
Takings test
Tests for use variance
Variance history
Variance tests and standards
Variance-dispensation or fight
Vested fights-special permits
Vilardi, Matter of
Voting
Ward v. Bennett
Who may appeal
75
73
73
37
40,55
40,41
76
36-38,56,60,68,
70, 71
66-70
4148
80
77-78
36,38
41,53-54,57,59-
60
57,59
78-80
41,4849
36-38, 41, 64
40-54
40
39-40
41
43,44
41
4647
40-54
36-39
39-62
40
28
68
128
9
12-13
X
Index