Development

Court of Appeals

(5-1 decision; majority opinion by Ciparick, J; dissenting opinion by Rosenblatt, J.)

In two article 78 proceedings brought by landowners to challenge denials of area variances, the respective villages appealed from Appellate Division orders affirming Supreme Court judgments granting the petitions and invalidating portions of the local zoning codes. The Court of Appeals affirmed, holding that Village Law section 7-712-b(3), which articulates a standard for area variances, pre-empts local legislation setting different variance standards.

Village Law section 7-712-b(3) accords local zoning boards the power to grant area variances, and provides that the zoning board of appeals shall take into account “the benefit to the applicant … as weighed against the detriment to the health, safety and welfare of the neighborhood or community … ” The statute then lists five factors to be considered in conducting the required balancing test. Section 10 of the Municipal Home Rule Law, however, gives local villages the power to amend or supersede any provision of the village law “ unless the legislature expressly shall have prohibited the adoption of such a local law.” Acting pursuant to section 10, the two villages in question enacted codes superseding section 7-712-b, and providing that the zoning board of appeals would be entitled to grant an area variance, in one case, only upon a showing of practical difficulty, and in the other case, only upon a showing of practical difficulty or unnecessary hardship.

In the Cohen case, landowner sought an area variance to build a single-family home on an oceanfront lot; in the Russo case, landowner sought a height variance to install an 11-foot gate in the driveway. In each case, the Zoning Board of Appeals, applying the local code, denied the variance. In each case, landowner brought an article 78 proceeding, contending that the village was required to use the balancing test of section 7-712(b). Landowner in each case argued that the local codes had been pre-empted, and the courts below agreed.

In affirming, the Court of Appeals majority relied on the legislative history accompanying the 1991 enactment of section 7-712-b, which suggested a legislative intention to replace the “confusing” practical difficulty standard with the legislatively enacted balancing test. The sponsor's memo also indicated that the legislation was intended to “standardize” the concepts of area variances. As a result, the court concluded that the statute was intended to pre-empt local variations, including those adopted by the two villages in this case. Judge Rosenblatt, dissenting, relied on the express language of the Municipal Home Rule Law, which requires the legislature to expressly prohibit local legislation if the legislature intends to pre-empt the field. Here, there was no express prohibition and, as a result, Judge Rosenblatt would have held that the village code provisions were valid and enforceable.

Board May Not Rely on Self-Created Hardship

Aydelott v. Town of Bedford Zoning Board of Appeals

NYLJ 6/25/03, p. 21, col. 4

Supreme Ct., Westchester Cty

(Dickerson, J.)

Landowners brought this article 78 proceeding to annul denial of an area variance. The court granted the petition, holding that no substantial evidence supported the board's denial.

Landowners sought to expand the kitchen and garage of their single-family home, located on a four-acre parcel. Landowners also maintain a swimming pool and pool house, a tennis court, and a deck on the parcel. The zoning ordinance provides that building coverage may not exceed 3% of the lot, and that impervious surface may not cover more than 8% of the lot. With the proposed expansion, building coverage would reach 7.1% of the lot, and impervious surface coverage would reach 11.7%. When landowners were denied a building permit, they sought an area variance. The zoning board of appeals denied the variance, relying on the substantiality of the variance sought, and contending as well that the hardship was self-created because landowners, both lawyers, were aware of the zoning requirements.

In annulling the board's determination, the court held that Town Law section 267-b(3)(b) does not permit the board to rely on any one factor in evaluating an area variance application. Instead, the board must weigh all statutory criteria. Here, the board did not consider the fact that immediate neighbors supported landowners' application, and that there appeared to be no negative impact on the neighborhood. In addition, the court rejected the board's self-created hardship argument, concluding that it would be unreasonable for a landowner who buys a parcel of land to anticipate all future needs at the time of purchase. As a result, the court held that there was no substantial evidence to support the board's decision. The court therefore ordered the board to grant the variance.

Village Law Variance Standards Pre-Empt Local Zoning Codes

Matter of Cohen v. Board of Appeals

NYLJ 7/3/03, p. 19, col. 2

Court of Appeals

(5-1 decision; majority opinion by Ciparick, J; dissenting opinion by Rosenblatt, J.)

In two article 78 proceedings brought by landowners to challenge denials of area variances, the respective villages appealed from Appellate Division orders affirming Supreme Court judgments granting the petitions and invalidating portions of the local zoning codes. The Court of Appeals affirmed, holding that Village Law section 7-712-b(3), which articulates a standard for area variances, pre-empts local legislation setting different variance standards.

Village Law section 7-712-b(3) accords local zoning boards the power to grant area variances, and provides that the zoning board of appeals shall take into account “the benefit to the applicant … as weighed against the detriment to the health, safety and welfare of the neighborhood or community … ” The statute then lists five factors to be considered in conducting the required balancing test. Section 10 of the Municipal Home Rule Law, however, gives local villages the power to amend or supersede any provision of the village law “ unless the legislature expressly shall have prohibited the adoption of such a local law.” Acting pursuant to section 10, the two villages in question enacted codes superseding section 7-712-b, and providing that the zoning board of appeals would be entitled to grant an area variance, in one case, only upon a showing of practical difficulty, and in the other case, only upon a showing of practical difficulty or unnecessary hardship.

In the Cohen case, landowner sought an area variance to build a single-family home on an oceanfront lot; in the Russo case, landowner sought a height variance to install an 11-foot gate in the driveway. In each case, the Zoning Board of Appeals, applying the local code, denied the variance. In each case, landowner brought an article 78 proceeding, contending that the village was required to use the balancing test of section 7-712(b). Landowner in each case argued that the local codes had been pre-empted, and the courts below agreed.

In affirming, the Court of Appeals majority relied on the legislative history accompanying the 1991 enactment of section 7-712-b, which suggested a legislative intention to replace the “confusing” practical difficulty standard with the legislatively enacted balancing test. The sponsor's memo also indicated that the legislation was intended to “standardize” the concepts of area variances. As a result, the court concluded that the statute was intended to pre-empt local variations, including those adopted by the two villages in this case. Judge Rosenblatt, dissenting, relied on the express language of the Municipal Home Rule Law, which requires the legislature to expressly prohibit local legislation if the legislature intends to pre-empt the field. Here, there was no express prohibition and, as a result, Judge Rosenblatt would have held that the village code provisions were valid and enforceable.

Board May Not Rely on Self-Created Hardship

Aydelott v. Town of Bedford Zoning Board of Appeals

NYLJ 6/25/03, p. 21, col. 4

Supreme Ct., Westchester Cty

(Dickerson, J.)

Landowners brought this article 78 proceeding to annul denial of an area variance. The court granted the petition, holding that no substantial evidence supported the board's denial.

Landowners sought to expand the kitchen and garage of their single-family home, located on a four-acre parcel. Landowners also maintain a swimming pool and pool house, a tennis court, and a deck on the parcel. The zoning ordinance provides that building coverage may not exceed 3% of the lot, and that impervious surface may not cover more than 8% of the lot. With the proposed expansion, building coverage would reach 7.1% of the lot, and impervious surface coverage would reach 11.7%. When landowners were denied a building permit, they sought an area variance. The zoning board of appeals denied the variance, relying on the substantiality of the variance sought, and contending as well that the hardship was self-created because landowners, both lawyers, were aware of the zoning requirements.

In annulling the board's determination, the court held that Town Law section 267-b(3)(b) does not permit the board to rely on any one factor in evaluating an area variance application. Instead, the board must weigh all statutory criteria. Here, the board did not consider the fact that immediate neighbors supported landowners' application, and that there appeared to be no negative impact on the neighborhood. In addition, the court rejected the board's self-created hardship argument, concluding that it would be unreasonable for a landowner who buys a parcel of land to anticipate all future needs at the time of purchase. As a result, the court held that there was no substantial evidence to support the board's decision. The court therefore ordered the board to grant the variance.