Development

Variance Denial Upheld

Matter of Merlotto v. Town of Patterson Zoning Board of Appeals

Dept. NYLJ 9/17/07, p. 37, col. 5

AppDiv, Second Dept.

(3-1 decision; memorandum opinion; dissenting memorandum by Dillon, J.)

In landlord's article 78 proceeding challenging denial of an area variance, the town appealed from Supreme Court's grant of the petition. A divided Appellate Division reversed and denied the petition, holding that the variance denial was not irrational, arbitrary, or capricious.

In 2001, landowner purchased the subject parcel, which was significantly smaller than the minimum required for construction of a residential dwelling. The parcel was then improved with a 650-square-foot one-bedroom dwelling that was structurally sound and had to be demolished. In 2002, landowner sought and received an area variance permitting construction of a new dwelling. The Zoning Board of Appeals (ZBA) specified that any residence would 'be built the exact size, shape, and current location of the existing foundation.' Later that year, the ZBA granted landowner an additional variance to build a front porch and a back deck. In 2005, landowner sought a building permit to add a second floor to the premises. The permit was denied based on the language of the 2002 variance. Landowner informed the building inspector that the rough framing for the second floor had already been completed, and the inspector replied that the work had been done without authorization and in violation of the town code, which would have permitted a maximum house size of 458 square feet. Landowner then applied for a variance for the new house, which would have totaled 1,546 square feet. The ZBA issued a variance permitting a basement of 511 square feet and a first floor area of 595 square feet, but denied variances for a second floor and for an increased roof line. Landowner then brought this proceeding, and Supreme Court granted the petition. The town appealed.

In reversing, the Appellate Division majority started by reference to Town Law section 267-b(3)(b), which lists the factors to be considered by a zoning board of appeals in considering an application for an area variance. The majority noted that in this case, the ZBA had found that the variance was substantial, that a second story would change the character of the neighborhood (in which a majority of homes were one-story homes), and that any hardship had been self-created because landowner had started construction for a structure not in conformance with the previously-granted variance. The court noted that the ZBA had relied on tax assessors' photographs to support its conclusion that the illegal second story was not in keeping wit the neighborhood. Although landowner submitted other photographs to the Supreme Court, the court held that those photographs were not before the ZBA, and could not, therefore, be considered.

Justice Dillon, dissenting, concluded that the ZBA had not established adequate basis in the administrative record to support its denial of the variance. He emphasized that the only evidence in the record was evidence that landowner's hardship was self-created, and he concluded that the self-created nature of the hardship, taken alone, was not determinative.

COMMENT

When an applicant offers substantial evidence supporting his application for an area variance, the zoning board, in making its determination, must come forward with contrary evidence showing that the variance would have an undesirable effect on the neighborhood, or that the detriment to the neighborhood will outweigh the benefits to the applicant. Thus, in Pottick v. Duncan, 251 A.D.2d 333, the court annulled the denial of an area variance when the record before the zoning board included no evidence to rebut the owner's submission of a report by a licensed real estate appraiser, along with area maps indicating other variances approved by the board in the area. See also, Filipowski v. Zoning Board of Appeals of Village of Greenwood Lake, 38 A.D.3d 545 (annulling denial of area variance on minimum lot size requirements when ZBA did not present sufficient evidence).

By contrast, when the landowner submits contradictory or unpersuasive evidence, the board may rely on its own personal knowledge of the area as a basis for making a determination adverse to the landowner. In North Shore F.C.P v. Mammina, 22 A.D.3d 759, the court held that the board's decision to deny a conditional use permit application was not arbitrary or capricious when the board relied on personal familiarity with the area of its members. In North Shore, landowner's application to operate a sandwich shop included contradictory evidence, and the board denied the permit, reasoning that the use as suggested would have a negative impact on the neighborhood. See also, Thirty West Park Corp. v. Zoning Board of Appeals of the City of Long Beach, 2007 N.Y. Slip Op. 06888.(holding that the board's decision to grant an area variance was not arbitrary or capricious when the board relied on the personal knowledge and familiarity with the area of its members and where the board set forth the basis of the knowledge in the record.)

 

Church Not Entitled to Operate in Industrial District

Western New York District Inc. of the Wesleyan Church v. Village of Lancaster

NYLJ 9/25/07, p. 29, col. 3

Supreme Ct., Erie Cty

(Makowski, J.)

In an article 78 proceeding challenging the village board's denial of a special use permit, the village sought dismissal of the petition. The court dismissed the petition, holding that the village had properly balanced competing interests in denying a permit to use property in the industrial district for church purposes.

The church contracted to buy a building in a district zoned for an industrial park, but the church's offer was subject to issuance of a special use permit by the village authorizing use of the property as a church. When the church explored obtaining a special use permit, the village informed the church that it would have to seek a variance because a church was not a permitted use in an industrial park district. The church then sought a variance from the zoning board of appeals, but discontinued its application and instead brought a proceeding seeking declaratory relief. The court determined that the church could seek a special use permit from the village board, and that the board was required to evaluate that permit in accordance with two New York cases dealing with the application of zoning requirements to religious and educational uses. The village board then considered and rejected the church's application for a special use permit, emphasizing that religious uses are permitted everywhere in the village except in the industrial park, that the industrial park was developed at substantial public cost to promote economic development, and that conversion of the property to religious use would deprive the village of the benefit of continuing industrial use. The church then brought this article 78 proceeding challenging the denial.

In denying the petition and dismissing the proceeding, the court acknowledged that the Court of Appeals had mandated special zoning treatment for religious and educational uses, and had held that a municipality may not totally exclude churches and schools from residential areas. The court also pointed out that even the village had acknowledged that permitting a church in an industrial area would not adversely affect the public health, safety, welfare or morals ' the traditional bases for zoning prohibitions. The court nevertheless upheld the village's determination, emphasizing that the village had balanced the beneficial purposes of the church against other legitimate concerns ' particularly the village's economic development objectives, which were reflected both in the zoning ordinance and the village's comprehensive plan.

COMMENT

See lead article by Stewart Sterk.

 

ZBA May Not Give Current Owner Open-Ended Right to Avoid Compliance with Ordinance

Matter of Gjerlow v. Graap

NYLJ 9/28/07, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In two consolidated article 78 proceedings, landowner and neighbor appealed from Supreme Court's order denying their respective petitions, each of which challenged a determination of the zoning board of appeals (ZBA) permitting landowner to continue occupying an accessory cottage without building a main dwelling, but providing that upon sale of the property, a purchaser would be required to complete a main dwelling within two years. The Appellate Division modified to invalidate the ZBA's determination permitting current owner an open-ended right to continue living in the accessory cottage, and remitted for the ZBA to fix a reasonable time within which landowner would be required to complete a main dwelling.

Landowner purchased their 17.756-acre parcel in 1980. The applicable zoning ordinance permitted use of the premises for a cottage as an accessory use, so long as the cottage was incidental to and subordinate to the principal use of the premises for a single-family residence. In 1982, they sought and obtained a variance to permit them to live in a 1711 square-foot 'caretaker's cottage prior to construction of the main building.' Landowner never built the main building. When neighbor acquired the adjacent 20-acre parcel in 2003, neighbor complained to the building inspector about continued use of the cottage (which was 17 feet from their property line) without construction of a main dwelling. The enforcement officer directed landowner to apply for a building permit within 90 days, but the ZBA vacated that determination, and permitted landowner to live in the cottage for the duration of their ownership, while requiring that any purchaser build a main dwelling within two years from the date of purchase. Both neighbor and landowner challenged this determination, but the Supreme Court dismissed both article 78 petitions. Both parties appealed.

In modifying, the Appellate Division first noted that the 1982 variance did not give landowner an open-ended right to live in the cottage without building a main dwelling. In the Appellate Division's view, the failure to specify a precise time period during which the main dwelling would be completed gave landowner a reasonable time to complete the dwelling. The court went on to hold that the ZBA's distinction between the rights of current landowner and the rights of successive landowner was inconsistent with the fundamental rule that zoning deals with land use and not with the person who owns or occupies the land. As a result, the court remitted to the ZBA to fix a reasonable period for construction of a main dwelling.

 

COMMENT

The Court of Appeals has held that municipalities may not distinguish between current and successive owners in zoning decisions because such decisions must relate strictly to the use of the land rather than to its users. Thus, in Dexter v. Town of Gates, 36 N.Y.2d 102, the court invalidated a condition included in a town board's rezoning of a residential area that permitted the commercial use by only one specific contract-vendee, on the ground that the condition failed to adhere to the basic premise of zoning that zoning deals with the land, not the owners of the land. The court remanded to the town board for reconsideration of the application to amend the ordinance.

When the challenge to a condition that relates to users rather than to use comes long after the restriction was first imposed, courts typically remove the condition, effectively permitting subsequent owners to enjoy the privileges originally afforded only to a single owner. Thus, in Matter of St. Onge v. Donovan, 71 N.Y.2d 507, the court invalidated a condition imposed on a variance that, 11 years earlier, had been granted to prior owners alone. The variance in St. Onge permitted prior owners to operate a real estate business out of a house located in a residential district so long as the house was used strictly by the prior owners for their business. In invalidating the condition, the court held that the variance itself was valid, and allowed successor owners to continue prior use of the house. Similarly, in Iazzetti v. Village of Tuxedo Park, 145 Misc. 2d 78,, the court cited equity principles in permitting a son to continue his father's non-conforming use of land to store landscaping equipment because the non-conforming use, though improperly conditioned on his father's personal use, had been relied upon for over 30 years. The court noted that it would be arbitrary and capricious to condition a nonconforming use on the individual practices of one owner and then end the nonconforming use simply because a different user takes over the same practices, which had generated no objections for three decades.

Where a zoning regulation grants all non-conforming users within a particular district the right to continue their use until they transfer their interest, the Court of Appeals has held that the regulation does not violate the Dexter principle. See Village of Valatie v. Smith, 83 N.Y.2d 396. In Village of Valatie, the Court of Appeals upheld a village law terminating a nonconforming use upon the transfer of either a mobile home or the land where the mobile home is located. The court reasoned that the Dexter rule prohibiting zoning from focusing on owners rather than on land does not apply where all similarly situated landowners receive identical treatment.

Variance Denial Upheld

Matter of Merlotto v. Town of Patterson Zoning Board of Appeals

Dept. NYLJ 9/17/07, p. 37, col. 5

AppDiv, Second Dept.

(3-1 decision; memorandum opinion; dissenting memorandum by Dillon, J.)

In landlord's article 78 proceeding challenging denial of an area variance, the town appealed from Supreme Court's grant of the petition. A divided Appellate Division reversed and denied the petition, holding that the variance denial was not irrational, arbitrary, or capricious.

In 2001, landowner purchased the subject parcel, which was significantly smaller than the minimum required for construction of a residential dwelling. The parcel was then improved with a 650-square-foot one-bedroom dwelling that was structurally sound and had to be demolished. In 2002, landowner sought and received an area variance permitting construction of a new dwelling. The Zoning Board of Appeals (ZBA) specified that any residence would 'be built the exact size, shape, and current location of the existing foundation.' Later that year, the ZBA granted landowner an additional variance to build a front porch and a back deck. In 2005, landowner sought a building permit to add a second floor to the premises. The permit was denied based on the language of the 2002 variance. Landowner informed the building inspector that the rough framing for the second floor had already been completed, and the inspector replied that the work had been done without authorization and in violation of the town code, which would have permitted a maximum house size of 458 square feet. Landowner then applied for a variance for the new house, which would have totaled 1,546 square feet. The ZBA issued a variance permitting a basement of 511 square feet and a first floor area of 595 square feet, but denied variances for a second floor and for an increased roof line. Landowner then brought this proceeding, and Supreme Court granted the petition. The town appealed.

In reversing, the Appellate Division majority started by reference to Town Law section 267-b(3)(b), which lists the factors to be considered by a zoning board of appeals in considering an application for an area variance. The majority noted that in this case, the ZBA had found that the variance was substantial, that a second story would change the character of the neighborhood (in which a majority of homes were one-story homes), and that any hardship had been self-created because landowner had started construction for a structure not in conformance with the previously-granted variance. The court noted that the ZBA had relied on tax assessors' photographs to support its conclusion that the illegal second story was not in keeping wit the neighborhood. Although landowner submitted other photographs to the Supreme Court, the court held that those photographs were not before the ZBA, and could not, therefore, be considered.

Justice Dillon, dissenting, concluded that the ZBA had not established adequate basis in the administrative record to support its denial of the variance. He emphasized that the only evidence in the record was evidence that landowner's hardship was self-created, and he concluded that the self-created nature of the hardship, taken alone, was not determinative.

COMMENT

When an applicant offers substantial evidence supporting his application for an area variance, the zoning board, in making its determination, must come forward with contrary evidence showing that the variance would have an undesirable effect on the neighborhood, or that the detriment to the neighborhood will outweigh the benefits to the applicant. Thus, in Pottick v. Duncan, 251 A.D.2d 333, the court annulled the denial of an area variance when the record before the zoning board included no evidence to rebut the owner's submission of a report by a licensed real estate appraiser, along with area maps indicating other variances approved by the board in the area. See also, Filipowski v. Zoning Board of Appeals of Village of Greenwood Lake, 38 A.D.3d 545 (annulling denial of area variance on minimum lot size requirements when ZBA did not present sufficient evidence).

By contrast, when the landowner submits contradictory or unpersuasive evidence, the board may rely on its own personal knowledge of the area as a basis for making a determination adverse to the landowner. In North Shore F.C.P v. Mammina, 22 A.D.3d 759, the court held that the board's decision to deny a conditional use permit application was not arbitrary or capricious when the board relied on personal familiarity with the area of its members. In North Shore, landowner's application to operate a sandwich shop included contradictory evidence, and the board denied the permit, reasoning that the use as suggested would have a negative impact on the neighborhood. See also, Thirty West Park Corp. v. Zoning Board of Appeals of the City of Long Beach, 2007 N.Y. Slip Op. 06888.(holding that the board's decision to grant an area variance was not arbitrary or capricious when the board relied on the personal knowledge and familiarity with the area of its members and where the board set forth the basis of the knowledge in the record.)

 

Church Not Entitled to Operate in Industrial District

Western New York District Inc. of the Wesleyan Church v. Village of Lancaster

NYLJ 9/25/07, p. 29, col. 3

Supreme Ct., Erie Cty

(Makowski, J.)

In an article 78 proceeding challenging the village board's denial of a special use permit, the village sought dismissal of the petition. The court dismissed the petition, holding that the village had properly balanced competing interests in denying a permit to use property in the industrial district for church purposes.

The church contracted to buy a building in a district zoned for an industrial park, but the church's offer was subject to issuance of a special use permit by the village authorizing use of the property as a church. When the church explored obtaining a special use permit, the village informed the church that it would have to seek a variance because a church was not a permitted use in an industrial park district. The church then sought a variance from the zoning board of appeals, but discontinued its application and instead brought a proceeding seeking declaratory relief. The court determined that the church could seek a special use permit from the village board, and that the board was required to evaluate that permit in accordance with two New York cases dealing with the application of zoning requirements to religious and educational uses. The village board then considered and rejected the church's application for a special use permit, emphasizing that religious uses are permitted everywhere in the village except in the industrial park, that the industrial park was developed at substantial public cost to promote economic development, and that conversion of the property to religious use would deprive the village of the benefit of continuing industrial use. The church then brought this article 78 proceeding challenging the denial.

In denying the petition and dismissing the proceeding, the court acknowledged that the Court of Appeals had mandated special zoning treatment for religious and educational uses, and had held that a municipality may not totally exclude churches and schools from residential areas. The court also pointed out that even the village had acknowledged that permitting a church in an industrial area would not adversely affect the public health, safety, welfare or morals ' the traditional bases for zoning prohibitions. The court nevertheless upheld the village's determination, emphasizing that the village had balanced the beneficial purposes of the church against other legitimate concerns ' particularly the village's economic development objectives, which were reflected both in the zoning ordinance and the village's comprehensive plan.

COMMENT

See lead article by Stewart Sterk.

 

ZBA May Not Give Current Owner Open-Ended Right to Avoid Compliance with Ordinance

Matter of Gjerlow v. Graap

NYLJ 9/28/07, p. 35, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In two consolidated article 78 proceedings, landowner and neighbor appealed from Supreme Court's order denying their respective petitions, each of which challenged a determination of the zoning board of appeals (ZBA) permitting landowner to continue occupying an accessory cottage without building a main dwelling, but providing that upon sale of the property, a purchaser would be required to complete a main dwelling within two years. The Appellate Division modified to invalidate the ZBA's determination permitting current owner an open-ended right to continue living in the accessory cottage, and remitted for the ZBA to fix a reasonable time within which landowner would be required to complete a main dwelling.

Landowner purchased their 17.756-acre parcel in 1980. The applicable zoning ordinance permitted use of the premises for a cottage as an accessory use, so long as the cottage was incidental to and subordinate to the principal use of the premises for a single-family residence. In 1982, they sought and obtained a variance to permit them to live in a 1711 square-foot 'caretaker's cottage prior to construction of the main building.' Landowner never built the main building. When neighbor acquired the adjacent 20-acre parcel in 2003, neighbor complained to the building inspector about continued use of the cottage (which was 17 feet from their property line) without construction of a main dwelling. The enforcement officer directed landowner to apply for a building permit within 90 days, but the ZBA vacated that determination, and permitted landowner to live in the cottage for the duration of their ownership, while requiring that any purchaser build a main dwelling within two years from the date of purchase. Both neighbor and landowner challenged this determination, but the Supreme Court dismissed both article 78 petitions. Both parties appealed.

In modifying, the Appellate Division first noted that the 1982 variance did not give landowner an open-ended right to live in the cottage without building a main dwelling. In the Appellate Division's view, the failure to specify a precise time period during which the main dwelling would be completed gave landowner a reasonable time to complete the dwelling. The court went on to hold that the ZBA's distinction between the rights of current landowner and the rights of successive landowner was inconsistent with the fundamental rule that zoning deals with land use and not with the person who owns or occupies the land. As a result, the court remitted to the ZBA to fix a reasonable period for construction of a main dwelling.

 

COMMENT

The Court of Appeals has held that municipalities may not distinguish between current and successive owners in zoning decisions because such decisions must relate strictly to the use of the land rather than to its users. Thus, in Dexter v. Town of Gates, 36 N.Y.2d 102, the court invalidated a condition included in a town board's rezoning of a residential area that permitted the commercial use by only one specific contract-vendee, on the ground that the condition failed to adhere to the basic premise of zoning that zoning deals with the land, not the owners of the land. The court remanded to the town board for reconsideration of the application to amend the ordinance.

When the challenge to a condition that relates to users rather than to use comes long after the restriction was first imposed, courts typically remove the condition, effectively permitting subsequent owners to enjoy the privileges originally afforded only to a single owner. Thus, in Matter of St. Onge v. Donovan, 71 N.Y.2d 507, the court invalidated a condition imposed on a variance that, 11 years earlier, had been granted to prior owners alone. The variance in St. Onge permitted prior owners to operate a real estate business out of a house located in a residential district so long as the house was used strictly by the prior owners for their business. In invalidating the condition, the court held that the variance itself was valid, and allowed successor owners to continue prior use of the house. Similarly, in Iazzetti v. Village of Tuxedo Park, 145 Misc. 2d 78,, the court cited equity principles in permitting a son to continue his father's non-conforming use of land to store landscaping equipment because the non-conforming use, though improperly conditioned on his father's personal use, had been relied upon for over 30 years. The court noted that it would be arbitrary and capricious to condition a nonconforming use on the individual practices of one owner and then end the nonconforming use simply because a different user takes over the same practices, which had generated no objections for three decades.

Where a zoning regulation grants all non-conforming users within a particular district the right to continue their use until they transfer their interest, the Court of Appeals has held that the regulation does not violate the Dexter principle. See Village of Valatie v. Smith, 83 N.Y.2d 396. In Village of Valatie, the Court of Appeals upheld a village law terminating a nonconforming use upon the transfer of either a mobile home or the land where the mobile home is located. The court reasoned that the Dexter rule prohibiting zoning from focusing on owners rather than on land does not apply where all similarly situated landowners receive identical treatment.