Development

Village Law Pre-Empts Local Rules on Area Variances

Matter of Stone Landing Corp. v. Board of Appeals

NYLJ 3/11/04, p. 31, col. 3

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding challenging denial of area variances and a special exception permit, the landowner appealed from the Supreme Court's denial of the petition. The Appellate Division reversed and remitted to the board for a new determination, concluding that the board had used incorrect standards in reviewing the applications.

A two-family house rests on the landowner's parcel. When the landowner sought to subdivide the parcel into two smaller parcels and to build a new single-family house on one of them, he applied for several area variances and a special exception permit. The village board of appeals denied the application based on a finding that the landowner had demonstrated no financial hardship or practical difficulty. The landowner then brought this article 78 proceeding.

In reversing the Supreme Court's dismissal of the proceeding, the court emphasized that Village Law section 7-712-b[3] preempts local zoning ordinances with respect to area variances. That statute sets out the factors a board is to consider in evaluating area variances, and hardship or practical difficulties are not on that list of factors. The court went on to conclude that even under the village code, an applicant for a special exception permit need not demonstrate financial hardship or practical difficulties, but need only show that the criteria in the ordinance have been met, subject to whatever reasonable conditions a zoning board may impose. Because the board denied these applications based on standards it was not permitted to apply, the court granted the petition and remitted to the board for a new determination.

COMMENT

As the Court of Appeals explained in Matter of North Shore Steak House v. Board of Appeals 30 N.Y.2d. 238, a special permit, as distinguished from a variance, allows a landowner to use his property as prescribed by town ordinance, while a variance permits a use otherwise forbidden by ordinance. The applicant in North Shore sought a special permit to add spaces his restaurant's parking lot and a variance to build a single-family house on the same land. The court upheld the zoning board's denial of the variance but reversed the board's denial of the special permit, reasoning that town ordinance contemplated certain land uses by way of a special permit, and such uses would be in accord with the overall zoning plan. Accordingly, a landowner seeking a special permit bears a lower burden of proof than an applicant for a variance. Knight v. Bodkin, 41 A.D.2d. 413, applied North Shore's view of a special permit in annulling a board's decision denying a special permit to build a manufacturing company in an area zoned for light manufacturing. The court in Knight viewed the issuance of a permit as a zoning board's duty, so long as the applicant met standards prescribed by ordinance. In effect, North Shore and Knight established a rebuttable presumption that an applicant is entitled to a special permit if prescribed conditions are met.

The Court of Appeals' decision in Matter of Retail Property Trust v. Board of Zoning Appeals, 98 N.Y.2d. 190, eroded North Shore's presumption in favor of special permits. In Retail Property, the mall-owner/applicant requested a special permit to expand the sprawling Roosevelt Field Mall on Long Island. The applicant and various objectors to the permit, including one neighboring village, each presented the board with evidence, and the board denied the special permit. The Court of Appeals upheld this denial even though the facts presented before the board indicated that the applicant had met the ordinance-prescribed conditions. The court suggested that when substantial evidence would support either a grant or a denial of the permit, the zoning board's determination was entitled to deference. The court emphasized that the board was in the best position to weigh the conflicting evidence presented before it.

The court's holding in Stone Landing that the board had applied the wrong standard in denying the landowner a special permit is certainly consistent with North Shore. The court's suggestion that all landowner need demonstrate is compliance with the ordinance, together with conditions imposed by the board, appears, however, to take a narrow view of Retail Property Trust's suggestion that determinations by the board are entitled to deference.

Statute of Limitations Bars Neighbor Challenge to Variance Grant

Matter of Ferruggia v. Zoning Board of Appeals

NYLJ 3/29/04, p. 31, col. 5

AppDiv, Second Dept

(memorandum opinion)

In neighbors' article 78 proceeding challenging grant of variance, neighbors appealed from the Supreme Court's dismissal of the proceeding for failure to join necessary parties. The Appellate Division affirmed, holding that the relation back doctrine did not apply to prevent the statute of limitations from serving as a bar to the proceeding.

The subject property was owned by White and Parietti. Sullivan was the contract vendee. When the zoning board of appeals granted variances, neighbors brought this proceeding, naming the zoning board and Sullivan, but not White or Parietti. The Supreme Court dismissed the proceeding for failure to join necessary parties, and neighbors appealed.

In affirming, the Appellate Division held that the relation back doctrine did not apply because landowners were not so united in interest with Sullivan that judgment against one would similarly affect the other. In addition, neighbors could not demonstrate mistake as to the identity of the property parties at the time of the initial pleading. Because the only error they made was one of law, their mistake was not of the type contemplated by the relation back doctrine.

Village Law Pre-Empts Local Rules on Area Variances

Matter of Stone Landing Corp. v. Board of Appeals

NYLJ 3/11/04, p. 31, col. 3

AppDiv, Second Dept

(memorandum opinion)

In a landowner's article 78 proceeding challenging denial of area variances and a special exception permit, the landowner appealed from the Supreme Court's denial of the petition. The Appellate Division reversed and remitted to the board for a new determination, concluding that the board had used incorrect standards in reviewing the applications.

A two-family house rests on the landowner's parcel. When the landowner sought to subdivide the parcel into two smaller parcels and to build a new single-family house on one of them, he applied for several area variances and a special exception permit. The village board of appeals denied the application based on a finding that the landowner had demonstrated no financial hardship or practical difficulty. The landowner then brought this article 78 proceeding.

In reversing the Supreme Court's dismissal of the proceeding, the court emphasized that Village Law section 7-712-b[3] preempts local zoning ordinances with respect to area variances. That statute sets out the factors a board is to consider in evaluating area variances, and hardship or practical difficulties are not on that list of factors. The court went on to conclude that even under the village code, an applicant for a special exception permit need not demonstrate financial hardship or practical difficulties, but need only show that the criteria in the ordinance have been met, subject to whatever reasonable conditions a zoning board may impose. Because the board denied these applications based on standards it was not permitted to apply, the court granted the petition and remitted to the board for a new determination.

COMMENT

As the Court of Appeals explained in Matter of North Shore Steak House v. Board of Appeals 30 N.Y.2d. 238, a special permit, as distinguished from a variance, allows a landowner to use his property as prescribed by town ordinance, while a variance permits a use otherwise forbidden by ordinance. The applicant in North Shore sought a special permit to add spaces his restaurant's parking lot and a variance to build a single-family house on the same land. The court upheld the zoning board's denial of the variance but reversed the board's denial of the special permit, reasoning that town ordinance contemplated certain land uses by way of a special permit, and such uses would be in accord with the overall zoning plan. Accordingly, a landowner seeking a special permit bears a lower burden of proof than an applicant for a variance. Knight v. Bodkin, 41 A.D.2d. 413, applied North Shore's view of a special permit in annulling a board's decision denying a special permit to build a manufacturing company in an area zoned for light manufacturing. The court in Knight viewed the issuance of a permit as a zoning board's duty, so long as the applicant met standards prescribed by ordinance. In effect, North Shore and Knight established a rebuttable presumption that an applicant is entitled to a special permit if prescribed conditions are met.

The Court of Appeals' decision in Matter of Retail Property Trust v. Board of Zoning Appeals, 98 N.Y.2d. 190, eroded North Shore's presumption in favor of special permits. In Retail Property, the mall-owner/applicant requested a special permit to expand the sprawling Roosevelt Field Mall on Long Island. The applicant and various objectors to the permit, including one neighboring village, each presented the board with evidence, and the board denied the special permit. The Court of Appeals upheld this denial even though the facts presented before the board indicated that the applicant had met the ordinance-prescribed conditions. The court suggested that when substantial evidence would support either a grant or a denial of the permit, the zoning board's determination was entitled to deference. The court emphasized that the board was in the best position to weigh the conflicting evidence presented before it.

The court's holding in Stone Landing that the board had applied the wrong standard in denying the landowner a special permit is certainly consistent with North Shore. The court's suggestion that all landowner need demonstrate is compliance with the ordinance, together with conditions imposed by the board, appears, however, to take a narrow view of Retail Property Trust's suggestion that determinations by the board are entitled to deference.

Statute of Limitations Bars Neighbor Challenge to Variance Grant

Matter of Ferruggia v. Zoning Board of Appeals

NYLJ 3/29/04, p. 31, col. 5

AppDiv, Second Dept

(memorandum opinion)

In neighbors' article 78 proceeding challenging grant of variance, neighbors appealed from the Supreme Court's dismissal of the proceeding for failure to join necessary parties. The Appellate Division affirmed, holding that the relation back doctrine did not apply to prevent the statute of limitations from serving as a bar to the proceeding.

The subject property was owned by White and Parietti. Sullivan was the contract vendee. When the zoning board of appeals granted variances, neighbors brought this proceeding, naming the zoning board and Sullivan, but not White or Parietti. The Supreme Court dismissed the proceeding for failure to join necessary parties, and neighbors appealed.

In affirming, the Appellate Division held that the relation back doctrine did not apply because landowners were not so united in interest with Sullivan that judgment against one would similarly affect the other. In addition, neighbors could not demonstrate mistake as to the identity of the property parties at the time of the initial pleading. Because the only error they made was one of law, their mistake was not of the type contemplated by the relation back doctrine.