Development

The Appellate Division started by noting that deference is accorded to a board's interpretation of a zoning ordinance, and rejected the cemetery's attempt to import the definition of “cemetery corporation” in the Not-for-Profit Corporation Law to support its contention that a crematory is not distinct from cemetery use. The court concluded that the ZBA's reliance on definitions in the Merriam-Webster dictionary was not irrational or unreasonable. The court then noted that zoning boards also have broad discretion in considering variance applications, but nevertheless held that the ZBA in this case had acted arbitrarily in concluding that the cemetery had not established hardship. The court noted that the cemetery had produced profit-and-loss statements indicating that it had operated at a loss for five years, and the court concluded that the ZBA had erroneously determined that the cemetery's evidence conflicted with tax documents showing a positive income for one of the years. The court noted that the ZBA had failed to differentiate investment accrued in the statutorily mandated maintenance fund from the cemetery's net operating losses. As a result, the court concluded that there was no rational basis for a finding that the cemetery was not experiencing hardship. The court then held that the ZBA had no adequate basis for its conclusion that the crematory would alter the essential character of the neighborhood.

Comment

Generally, when nonconforming users seek use variances, New York courts require them to show that the property cannot yield a fair return either as a nonconforming use without the variance, or in a manner conforming with the zoning requirements. The Court of Appeals articulated that principle in Crossroads Recreation, Inc. v. Broz, 4 N.Y. 2d 39, where the court upheld denial of a use variance to the owner of a nonconforming gasoline station. Because the owner did not establish that the land's current use as the gasoline station without the variance did not yield a reasonable return, the court concluded that it was unnecessary to consider whether conversion to permitted uses (retail stores, real estate offices, etc.) could yield a reasonable return. Similarly, in Matter of Nemeth v. Village of Hancock Zoning Bd. of Appeals, the Third Department annulled the Zoning Board of Appeal's determination that granted the owners of an industrial manufacturing business — a nonconforming use — a use variance to expand the facility, finding that even if there were sufficient proof of the inability to yield a reasonable return utilizing the property as it presently existed without the expansion, the owners presented no evidence of the financial implications of converting the entire property to residential use — the conforming use in that zone. 127 A.D.3d 1360 (2015).

When the nonconforming use is a cemetery, however, New York law makes conversion into a conforming use nearly impossible. First, sections 1512(a) of the Not-For-Profit Corporation Law and 163 of the General Municipal Law designate all conveyed cemetery lots as indivisible except with the consent of the lot owners, and after a burial, inalienable. Section 1513(d) of the Not-For-Profit Corporation Law also allows cemeteries to convey lots in inalienable form at the time of conveyance, prior to an interment. See also, In re Turkish's Estate, 48 Misc.2d 600 (N.Y. Sur. Ct. 1965) (explaining that New York law's establishment of inalienable cemetery lots effectuates mankind's natural desire to rest without disturbance). Section 1513(d) thus prohibits public cemeteries from selling, mortgaging, or leasing lots held in inalienable form, unless the cemetery undertakes several costly and time-consuming steps. One option is for the cemetery to prove that all bodies have been removed (and such a disinterment process requires written consent of the owners of the lot, and several family members, and if consent of any one person cannot be obtained, permission by the county court of the county, or by the supreme court in the district, see, NY Not-for-Profit Corp. Law §1510(e)). Moreover, after proving the valid removal, the cemetery must also show that the lot owners reconveyed their rights to the cemetery and that the lots are currently not used for burial purposes (along with three other restrictions that take into account the public's interest in the conversion of the cemetery land). See, NY Not-for-Profit Corp. Law §1506(i)(A). As an alternative, the cemetery can try to prove that the land to be sold or disposed of is not used for or is unsuitable for burial purposes, such that the sale of the land will increase the value to the cemetery corporation and benefit the owners of plots and graves in the cemetery. See, NY Not-for-Profit Corp. Law §1506(i)(B). New York Religious Corporation Law §8-a imposes similar limitations on religious cemetery corporations seeking to reacquire, resubdivide, or resell cemetery lots. The court in White Plains likely recognized that given these limitations, conversion was nearly impossible, and the cemetery need only prove that its continued use without the crematorium is not yielding a fair return.

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ZBA Usurpation of Planning Board Authority

Matter of Livingston Development Group, LLC v. Zoning Board of Appeals NYLJ 1/18/19, p. 28, col. 1 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding challenging a determination by the Zoning Board of Appeals (ZBA) confirming a determination of the architectural and historical review board (AHRB), the municipal defendants appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the petition, holding that the ZBA's determination was rational and supported by evidence in the record.

Landowner applied to the village planning board for site plan approval for construction of two six-unit buildings overlooking the Hudson River. The planning board conducted a view analysis in accordance with the village code and granted site plan approval, subject to conditions. The Board of Trustees then granted site plan approval subject to the condition that the applicant obtain approval from the AHRB. The AHRB denied approval on the ground that the buildings were excessively dissimilar to the character of the surrounding area, and the ZBA upheld the AHRB decision. Landowner then brought this article 78 proceeding contending that the AHRB and the ZBA had usurped the planning board's authority to consider the impact of the project on views of the Hudson River. Supreme Court granted the petition.

In reversing, the Appellate Division held that even if the AHRB and the ZBA had usurped Planning Board authority to consider the impact on views, the ZBA's decision was also based on other findings, including a finding that excessive dissimilarity of the buildings would provoke harmful effects to the surrounding area. The court deemed that conclusion rational, and held that, as a result, the ZBA's determination should have been upheld.

Comment

When a Zoning Board of Appeals (ZBA) or planning board has more than one ground which forms the basis of a determination, and a court finds that one or more of the grounds was improper, the court will uphold the board's determination only if the court is persuaded that the board would have made the same determination based solely on the proper grounds.

When it is not clear whether the board would have made the same determination based solely on the proper grounds, a court will remand to the board to reconsider its determination based on the proper grounds alone. In Van Euclid Co. v Sargent, 97 AD2d 913, 914, after holding a number of board findings to be improper, the Third Department remanded the matter to the board to exercise its discretion without considering the improper findings. The Van Euclid Company had sought approval from the planning board to develop a residential subdivision, as well as to convert two existing homes into an access road for the proposed subdivision. The planning board denied the approval, basing its determination on five findings. The court found four of the board's findings to be either errors of law, lacking sufficient evidence, or arbitrary and capricious. The fifth finding related to the instability of nearby slopes, and the court held that there was some evidence of soil instability, but that it was unclear whether the board would have denied the landowner's application solely upon that basis. The court therefore remanded the matter to the board to exercise its discretion as to whether the soil instability provided a sufficient basis for denying the application.

However, at times a court will find that it is clear how the board would have proceeded, and it will then enter a judgment directly. Baker v Polsinelli, 177 AD2d 844, the Third Department upheld a ZBA's interpretation of the zoning ordinance to prohibit homeowner's use of her home as a dance studio. The town's zoning ordinance allowed a residentially zoned home to be used for certain home occupations, so long as seven specified conditions were met. The ZBA found that three conditions were not met, and that therefore the home could not be used as a dance studio. The court found that two of the findings were without factual support, but that the third “primary” finding, that the studio “because of its size, was not an occupation customarily carried on in a dwelling unit” and thus did not satisfy the ordinance, was rational. The court concluded that “because it is clear that the Board would have denied petitioner's application to use her home as a dance studio solely upon the foregoing basis, the invalidity of the other two grounds set forth by the Board is of no consequence. Id. at 846.

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Statutory Factors Need to Be Considered In Denial of Area Variance

Matter of Mengiopolous v. Board of Zoning Appeals NYLJ 1/25/18 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding to annul denial of an area variance, the Board of Zoning Appeals (BZA) appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the board had not meaningfully considered the requisite statutory factors.

Landowner owns a house built before 1920, when the city enacted its zoning ordinance. Landowner's house, like most others in the neighborhood, sits on a lot that is now substandard. The house is in a neighborhood zoned for one and two-family homes, but landowner needed five area variances to convert her single-family house into a two-family house. The BZA denied her application, citing the substantiality of the proposed variances and the fact that the difficulty was self-created. Landowner brought an article 78 proceeding. Supreme Court granted the petition and the BZA appealed.

In affirming, the Appellate Division relied on the BZA's failure to cite particular evidence with respect to several of the statutory factors. The board did not indicate how the variance would have an undesirable effect on the neighborhood, how it would adversely impact physical or environmental conditions, or how it would be detrimental to the health, safety, or welfare of the neighborhood. As a result, the court agreed with Supreme Court that remand to the board was necessary.