Development

In affirming, the Appellate Division first rejected the contention that the 2017 ordinance was inconsistent with the town' comprehensive plan. The court noted that the 2007 ordinance, which the parties agreed was part of the town's comprehensive plan, banned mining on the project site. The court then concluded that the Town Board had identified the relevant areas of environmental concern, and had taken the required "hard look" at environmental issues. The court rejected the mining company's argument that the town had failed to consider the positive impact its proposed operation would have on water levels in the district, concluding that the town board had discretion to overlook environmental impacts of doubtful relevance. Finally, the court rejected the argument that the new law is preempted by the state's Mined Land Reclamation Law. Because the prohibition is on mining within a district, and does not regulate the process or method of mining, the court held that the prohibition was not pre-empted by the state statute.

Comment

The Mined Land Reclamation Law (MLRL) provides that state law shall supersede all local laws pertaining to the extractive mining industry with two exclusions: 1) local laws of general applicability; and 2) local zoning ordinances or laws which determine permissible uses in zoning districts. ECL 23-2703. Courts have construed the statute to not override a locality's laws prohibiting or permitting mining within that locality's jurisdiction, but state law can preempt local law which would regulate specific methods of mining activity.

Frew Run Gravel Products, Inc. v Town of Carroll, 71 NY2d 126, 129 expressly held that the MLRL was not intended to and did not preempt local zoning ordinances establishing specific districts where mining practices were not allowed. In Frew Run, the court sustained the Town of Carroll's zoning law creating separate districts where mining operations could be conducted and others where mining was prohibited against a challenge by a landowner who sought to conduct sand and gravel extracting operations in a zone where such operations was prohibited. The MLRL also allows a local government to prohibit mining in the entirety of a municipal area, and not just individual zones. For example, in Gernatt Asphalt Products, Inc. v Town of Sardinia, 87 NY2d 668, 683, the court held the MLRL did not preempt town's amendment prohibiting all mining operations throughout the entire town. The court relied upon ECL 23-2703's express preservation of municipal authority to regulate permissible uses of land.

The MLRL does preempt municipal regulation designed to mitigate the effect of mining operation. In Philipstown Indus. Park, Inc. v Town Bd. of Town of Philipstown, 247 AD2d 525, 527, a mining company successfully challenged a local law conditioning the granting of local mining permits on a list of criteria set by the town, including: screening off the mining operation from public view and making sure the property would not be so exploited as to prevent future use of the property for other purposes. The Phillipstown court held that by conditioning the grant of a special use permit on specific aspects of a mine's operation and reclamation, the city was regulating the specific types of activity a mining operation could conduct.

At least one trial court has also held that the MLRL's preemption section can render agreements between municipalities and mining entities unenforceable. In Manitou Sand & Gravel Co., Inc. v Town of Ogden, 9 Misc 3d 1112(A), the court upheld a mining company's challenge to the validity of an agreement it made to not use a specific mining method in return for the town's grant of a mining permit. Since the mining permit was predicated on a local restriction of the mining method, the court held that state regulations superseded the regulation in the agreement.

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Dog Training Facility Not a Customary Home Occupation

McFadden v. Town of Westmoreland Zoning Board 2019 WL 3955311 AppDiv, Fourth Dept. (memorandum opinion)

In landowners' article 78 proceeding challenging conditions imposed on a use variance, landowner appealed from Supreme Court's denial of the petition. The Appellate Division affirmed, holding that landowners' proposed dog training use required a variance, and the conditions imposed on the variance were reasonable.

Landowners owns a dwelling in an R-2 district. The ordinance permits "customary home occupations" in R-2 districts. Landowners sought to lease a portion of their property, but not the dwelling, for use as a dog training business operated by a third party. When they sought a variance, the zoning board granted the variance on condition that the business could entertain a maximum of six dogs at a time and could not provide overnight boarding. Landowners brought this article 78 proceeding to challenge the determination, but Supreme Court denied the proceeding. Landowners appealed.

In affirming, the Appellate Division first rejected landowner's argument that the town erred in requiring a use variance. The court held that the proposed dog training business did not qualify as a "customary home occupation," which the ordinance defines as "[a]n occupation nor a profession which … [i]s customarily carried on in a dwelling unit or a building or other structure accessory to a dwelling unit." The court noted first that dog training business is not the sort of occupation customarily carried on in a dwelling unit, and emphasized further that landowners themselves were not attempting to carry on the occupation, but instead wanted to lease space to others. Because the court concluded that landowner could only maintain the facility with a variance, the court then turned to the conditions imposed on the variance, and held that they were reasonable.

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Landowner Not Entitled to Variance When Hardship Is Not Unique to the Parcel

54 Marion Avenue, LLC v. City of Saratoga Springs 2019 WL 4307913 AppDiv Third Dept. (Opinion by Devine, J.)

In an article 78 proceeding challenging denial of a use variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, concluding that landowner's hardship was not unique to its parcel, and that any hardship was self-created.

Landowner owns a vacant lot in a residential zoning district. Landowner sought a variance to permit a nonconforming dental office on the site, contending that the parcel's proximity to the intersection of a residential street and a thoroughfare created traffic and congestion that made the parcel unsuitable for residential development. The zoning board of appeals denied the variance, concluding that any hardship was not unique to the parcel, and that any hardship was self-created. Supreme Court upheld that determination and landowner appealed.

In affirming, the Appellate Division emphasized that the record included maps, photos, and correspondence from nearby homeowners complaining how traffic and commercialization have affected them. The court concluded that in light of that evidence, the ZBA could rationally conclude that the commercialization and traffic did not create a hardship unique to landowner's parcel. The court also noted that the owner had allowed a residential building on the premises to deteriorate, and then demolished the building, justifying a conclusion that the hardship was self-created.

Comment

Although an owner cannot obtain a variance without demonstrating that its hardship is unique (Town Law §267–b[3]; N.Y. Gen. City Law §81–b[4][b], N.Y. Village §7-712-[b]), a showing that the hardship is not generally applicable throughout the district suffices; landowner need not show that the hardship applies only to one parcel. For instance, in Douglaston Civic Ass'n. v. Klein, 51 N.Y.2d 963 (1980) the court held that the board did not act arbitrarily in granting a variance when the owner's hardship — the swampy nature of his property — was shared by other property in the area.

As in Douglaston, the uniqueness must relate to a physical condition. That requirement reflects the reality that when ordinances are enacted, the drafters are unlikely to be aware of the physical conditions of each parcel within the municipality. By contrast, courts have upheld variances denials where the only evidence of uniqueness was that the use of a lot was hindered by the presence of different uses maintained by owners of a nearby properties. In Vomero v. City of New York, 13 N.Y.3d 840 (2009) the court held that the owner of a residentially zoned corner property was not entitled to a use variance where the commercial use in the neighborhood afflicted neighboring parcels as well as his own.

At least one court has held that uniqueness is unnecessary when landowner establishes sufficiently severe hardship. In Family of Woodstock Inc. v. Auerback, 225 A.D.2d 854, 856 (1996), the Third Dept. overturned a variance denial to a non-profit seeking to establish a residence for homeless adolescents in a commercial area when the nonprofit managed to show that it would receive a zero return on investment if the property was used for commercial purposes, and only a 3% return if utilized as residential rental property. The court relied on dictum in earlier Court of Appeals cases to suggest that uniqueness is not always required, but the unique nature of landowner's mission might have played a role in the court's decision.

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ZBA Did Not Consider Statutory Variance Factors

Matter of Pangbourne v. Thomsen NYLJ 8/23/19, p. 23, col. 3 AppDiv, Second Dept. (memorandum opinion)

In landowners' article 78 proceeding challenging denial of area variances, landowners appealed from Supreme Court's partial denial of their petition. The Appellate Division reversed and remitted to the zoning board of appeals ZBA) for a new determination, holding that the ZBA had not considered the statutory factors.

Landowner Pangbourne, who owns a two-family house, agreed to sell a portion of her property to landowner Ressa-Cibants, owner of the adjacent lot. Ressa-Cibants planned to demolish the single-family home on its parcel and to replace it with two two-family homes. Ressa-Cibants applied to the ZBA for height and coverage variances to permit construction of the new houses, and Pangbourne applied for a rights ide variance to permit maintenance of her current house. The ZBA denied the applications. Landowners brought this article 78 proceeding. Supreme Court annulled denial of the right-side variance, but denied the remainder of the petition. Landowners appealed.

In reversing, the Appellate Division held that the record failed to reflect any weighing by the ZBA of the statutory factors enumerated in section 7-712-b(3)(b) of the Village Law. In particular, the court concluded that the board had not considered whether there was any feasible way to achieve the benefit sought by Ressa-Cibants without granting height and coverage variances. As a result, the court remitted to the ZBA for new determinations.