ZONING BOARD OF APPEALS

JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES

Includes All Statutory Changes Through the 2005 Legislative Session

A Division of the New York Department of State

Andrew M. Cuomo, Governor Rossana Rosado, Secretary of State

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NEW YORK STATE DEPARTMENT OF STATE 99 WASHINGTON AVENUE

ALBANY, NEW YORK 12231-0001 http://www.dos.ny.gov

Publication Date: November 2005 Reprint Date: 2015

CONTENTS

PageIntroduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Creation, Function, Powers and Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Composition of the board.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Powers and duties of the board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Original jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Limitations on the board’s powers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Interpretations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9What is an interpretation?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9The basis of an interpretation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Variances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10What is a variance?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10The Use variance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Reasonable return.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Unique circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Essential character of the neighborhood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Self-created hardship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A final word on use variances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The Area variance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Undesirable change in the neighborhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Alternative to a variance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Substantiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Impact on environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Self-created difficulty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Minimum variance necessary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Procedure by and before the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Who are the proper parties before the board? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21How an appeal is taken to the board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Referral to a planning agency.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Environmental quality review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Time and notice for the board’s hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Conduct of the hearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

The Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Filing the Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Endnotes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

 

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Introduction

A zoning law is a community's guide to itsfuture development. That is its purpose. It isnot meant to be just another governmentalintrusion, another bit of red tape to be untangledbefore the property owner can go ahead with hisplans. The protections afforded residents andproperty owners within the community fromundesirable development come from therestrictiveness of zoning. Traditionally, zoningis characterized by pre-set regulations containedin the ordinance or local law, and applicableuniformly within each district. A landownercan look at the zoning map and regulations andknow that if he follows them, he has a right touse his land in a certain way, and thatneighboring property is subject to the samerestrictions. But, because all land in the districtis subject to the same rules, and because no twoparcels of land are precisely the same, problemscan arise.

When the first zoning ordinance in this countrywas passed in New York City in 1916, therewas grave doubt that the courts would upholdits constitutionality, since it was a new and, atthat time, radical system of land use control.Various "safety valves" were, therefore,included in that first ordinance, in an attempt torelieve the pressure of too rigid enforcement ofthe zoning ordinance and any attendanthardship, and also to attempt to ensure judicialapproval of the new concept. Foremost amongthese devices was the concept of anadministrative body that would stand as a bufferbetween the property owner and the court,designed "to interpret, to perfect, and to ensurethe validity of zoning." That administrative1

body is the board of appeals, sometimesreferred to as a board of adjustment.

That the concept of zoning received judicialapproval is history. The "safety valve" aspect2

of boards of appeals was recognized by thecourts of New York State as early as 1925,when a court discussed the fact that zoningregulations limit the freedom of action of anowner in dealing with his/her property and, bytheir very nature, raise constitutional questionsas to whether an individual's rights are violated.The court found:

"The creation of a board of appeals, withdiscretionary powers to meet specific casesof hardship or specific instances ofimproper classification, is not to destroyzoning as a policy, but to save it. Theproperty of citizens cannot and ought not tobe placed within a strait-jacket. Not onlymay there be grievous injury caused by theimmediate act of zoning, but time itselfworks changes which require adjustment.What might be reasonable today might notbe reasonable tomorrow."3

These observations concerning the importanceof boards of appeals will be relevant as long aszoning exists. They should be engraved on thedoor of the meeting room of each board ofappeals and recited by board members alongwith their oath of office. However, the quoteshould not be taken to mean that boards ofappeals have a blank check to relieve everyhardship caused by zoning ordinances or locallaws. Great care must be taken to ensure that thepurpose and intent of the ordinance or local lawis carried out, lest too many changes withoutproper foundation destroy the zoning itself.

The Court of Appeals, New York State's highestcourt, has recognized the necessity for and thevalue of boards of appeals as a "safety valve" toprevent the oppressive operation of zoning lawsin particular instances, when the zoningrestrictions are otherwise generally reasonable.4

And each municipal attorney, property ownerand judge will agree with Chief JudgeCardozo's observation that:

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"There has been confided to the Board adelicate jurisdiction and one easilyabused." 5

The first section of this publication discussesthe board of appeals - its composition, powers,duties and limitations. Some of its importantfunctions, such as the granting of area and usevariances, and the procedure governing suchboards and those that appear before them, arecovered in subsequent sections.

A note regarding semantics: zoning may beadopted in cities, towns and villages by locallaw. Cities and towns also retain the alternativeof adopting zoning by ordinance. This choicedoes not affect the functions and power ofboards of appeals in cities or towns in any way.The terms “zoning law” and “zoning ordinance”are thus used interchangeably in thispublication.

Creation, Function,Powers and Duties

Composition of the board

The statutes provide that the governing board6

shall provide for the appointment of a board ofappeals. This must be done in the zoningordinance or local law itself. The appointmentis not discretionary, as in the case of a planningboard, but must be made in any municipalitywhich has adopted zoning.

The statutes provide for a board of three or fivemembers. Prior to July 1, 1992, the Town Law,and prior to July 1, 1994, the General City Law,authorized creation of five or seven-memberboards; accordingly, many seven-memberboards continue to exist in towns and cities.Such boards may continue to function until thegoverning board reduces the membership to

three or five. The statutes provide for7

staggered terms of three years for three-memberboards and five years for five-member boards.Their successors are appointed for three or five-year terms, depending on the size of the board.8

It should be noted that pursuant to section 10 ofthe Municipal Home Rule Law, villages andtowns, by local law, may supersede or modifyany provisions of the Village Law and TownLaw, respectively, in their application to aparticular village or town. This means that, bylocal law, a village or town may vary therequirements set forth in the Village Law orTown Law, relating to the number of memberson the board of appeals and their terms ofoffice. City charters may also set forthparticular requirements that vary from those ofthe General City Law. In fact, since thesections of the General City Law that affectboards of appeals are not applicable to all cities,any city may adopt local law provisions thatsupersede the General City Law provisions asthey may relate to its board of appeals. Anyonewishing to gain a full understanding of thestructure and powers of a particular city’szoning board of appeals should, therefore,consult both the city charter and its relevantlocal laws.

General City Law provides that the mayor (orcity manager in a city having a city manager)shall appoint the members of the board ofappeals and designate its chairperson. In9

towns, both the appointment of members aswell as the designation of the chairperson aremade by the town board. In villages, owing to10

a 1996 amendment to the Village Law, both theappointment of members and the designation ofthe chairperson are made by the mayor, subjectto the approval of the board of trustees. In11

cities and towns, any appointment to fill avacancy occurring during a term of office ismade in the same manner as for full termsdescribed above. In villages, however, an

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appointment to fill a vacancy occurring duringa term of office is made by the mayorunilaterally, without the need for approval bythe trustees. In all municipalities, thechairperson is given the power to call meetings,administer oaths and compel the attendance ofwitnesses.

The Town Law and Village Law further providethat the town board and village mayor mayremove any member of the board of appeals, forcause, after a public hearing. Both sectionsprovide how vacancies shall be filled. Thesame powers are granted by the General CityLaw to a mayor or city manager, as the casemay be. Examples of “cause” might be: themember’s persistent failure to attend meetings;or to attend training requirements set by themunicipality; or his violation of themunicipality’s code of ethics. But it should beclear that mere dissatisfaction with themember’s votes do not constitute “cause.”

It is important to note that the statutesspecifically state that no member of thegoverning board shall be eligible formembership on the board of appeals. 12

An important amendment to the statutes, whichtook effect in 1998, provides that amunicipality may adopt a local law providingfor the appointment of any number of alternatemembers of the board of appeals, to serve inplace of regular members who are unable toparticipate in a particular matter due to aconflict of interest. When appointed, alternate13

members serve at the call of the chairperson ofthe board. Whereas the terms of office ofregular members are set by state law, the termsof office of alternate members must be set bythe governing board in its zoning law. Townsand villages may also supersede the aboveprovisions to provide for the appointment ofalternates to serve in the case of absencescaused by reasons other than a conflict of

interest.14

Whether a person is a regular or an alternate, aboard of appeals member is a public officer, andis, therefore, subject to the requirements of thePublic Officers Law relating to the basicqualifications for office (age, residence andcitizenship) set forth in that statute.Additionally, he or she must take and file theconstitutional oath of office at the beginning ofeach of his or her terms of office on the board.

Lastly, the statutes allow the local governingboard to establish training and educationrequirements as a qualification for continuingservice on the board of appeals.15

Powers and duties of the board

The powers and duties of the zoning board ofappeals are specifically set forth in the statutes. As is usually the case in planning and zoning,however, this does not mean that there has notbeen extensive litigation and judicialinterpretation of these provisions. There arevery few, if any, fields of law that havegenerated more litigation than that dealing withboards of appeals.

All zoning boards of appeals are directly givenappellate jurisdiction by state law. Appellatejurisdiction is the power to hear and decideappeals from decisions of those officialscharged with the administration andenforcement of the zoning ordinance or locallaw. This is the primary function and purposeof a zoning board of appeals in zoningadministration, and encompasses the power (ifan appeal is properly taken to the board) tointerpret the zoning ordinance or local law andto grant variances.

The General City Law, Town Law and VillageLaw provide that boards of appeals are limited

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to appellate jurisdiction "unless otherwiseprovided [by local law or ordinance]." Wherea zoning ordinance or local law gives a zoningboard of appeals powers that are in addition toits appellate powers, the additional powers arereferred to as "original jurisdiction." Mattersinvolving original jurisdiction may be grantedto a zoning board of appeals by the zoning lawor ordinance, but do not have to be. Examplesof original jurisdiction include the power togrant special use permits and the power toapprove site plans. There is nothing in thestatutes that specifically provides for thesepowers to be exercised by zoning boards ofappeals. If they are given to such boards it willbe because the municipal zoning ordinance orlocal law so provides.

As noted above, the board of appeals is anappellate body primarily; the statutes say it mustbe. Unless specifically granted to it, it has nooriginal jurisdiction. It is limited to “hearingand deciding appeals from and reviewing anyorder, requirement, decision, interpretation ordetermination made by the administrativeofficial charged with enforcement of any[zoning ordinance or local law].” Thus, in acase in which the parties to a dispute appearedbefore a board of appeals for its interpretationof the terms of a zoning ordinance, withouthaving applied for a permit, been denied thepermit and then appealed it, the court declaredthe findings of the board null and void. The16

court found that the provisions of the ordinanceinvolved and section 81 of the General CityLaw clearly indicate that the board of appeals isvested only with the appellate power of reviewand revision of the enforcement officer'sdecisions. The court stated:

"In other words, in the absence of anapplication to the building inspector for abuilding permit or certificate of occupancy,in the absence of a denial of suchapplication by him on the ground that the

proposed use violates the Zone Ordinance,and in the absence of an appeal from suchdecision to the board of appeals, the boardhas no jurisdiction or power to make anyruling or declaratory judgment as to themeaning of any provision of theordinance."17

The same reasoning would hold true for theissuance of a variance. That, too, is anappellate power. In general, a property ownercannot simply appear at the board of appealsoffice and ask for a variance. While it is truethat only the board of appeals can issue avariance, it is equally true that it cannot issue avariance except on an appeal from a decisionmade by the zoning enforcement officer. It is18

only on such appeals - and then only when theapplicant can show that he meets the legalrequirements for a variance - that the board ofappeals can issue one.

Note, however, that we stated "in general"above. There are particular exceptions whichapply in cases where area variances arenecessary in the course of subdivision, site planand special use permit applications. In suchcases, the statutes allow an applicant to applydirectly to the board of appeals for an areavariance without having to first apply to theenforcement officer for a permit.19

In its exercise of the appellate power, it hasbeen held that it is not the board’s functionmerely to decide whether the enforcementofficer’s action was “arbitrary and capricious.”Rather, the board of appeals must conduct a denovo review; that is, it must review all of thefacts which formed the basis of the officer’sdecision, and must decide the case as though itwere the enforcement officer. In this context,20

it becomes easier to appreciate the followingwords of the enabling statutes:

“The board of appeals may reverse or

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affirm, wholly or partly, or may modify theorder, requirement, decision, interpretationor determination appealed from and shallmake such order, requirement, decision,interpretation or determination as in itsopinion ought to have been made in thematter by the administrative official chargedwith the enforcement of such ordinance orlocal law and to that end shall have all thepowers of the administrative official fromwhose order, requirement, decision,interpretation or determination the appeal istaken.”21

Original jurisdiction

As has been pointed out, a board of appeals mayexercise original jurisdiction if the local law orordinance gives it this jurisdiction. An exampleof the type of original jurisdiction delegated tozoning boards of appeals is the special usepermit. The special use permit is a means topermit certain types of uses only after anadministrative decision, based on requirementsfully set forth in the zoning law. The conditionsare the sort that ensure that the use willproperly relate to its surroundings. Forexample, a zoning law might permit gasolinestations in commercial districts, but only byspecial use permit - which is to be issued upona showing that the proposed facility will have Xtype of landscaping, Y type of signage, and Ztype of fencing. The board of appeals can bethe body authorized to issue special use permitsupon a showing by the developer that she/hemeets these requirements. As can be seen, noappeal is involved in such an instance.

In exercising this original jurisdiction (in thecase of special use permits), it should be notedthat the board of appeals is only anadministrative body; it has no power tolegislate. While the functions delegated to it bythe local governing body do not have to spell

out standards and conditions for the issuance ofspecial use permits in detail down to the lastnail, suitable standards do have to be set forth inthe zoning law to guide the board. In onecase , it was claimed that a section of a town22

zoning ordinance requiring "adequate" parkingfacilities for proposed construction wasunconstitutional, because it failed to establishany standard to guide the board of appeals inthe exercise of its discretion. The court upheldthe validity of the section on the ground that,although stated in general terms, it was capableof reasonable application and sufficient to limitand define the board's discretionary powers.

Usually, we think of the zoning board ofappeals as part of the zoning mechanism of thecommunity, and the discussion above hasattempted to deal with it in that context.However, the zoning board of appeals is givenseveral functions that do not relate to the zoninglaw, and since these functions are directlygranted to boards of appeals by state enablinglegislation, it is important that they beunderstood.

The first of these non-zoning functionsconcerns the local official map. An officialmap is a police power device to implement acommunity's plans for development byprotecting the rights-of-way for future streets,drainage systems and parks. These are shownon an official map, but remain in privateownership until the community is ready topurchase them. Certain restrictions are imposedon the landowner's use of the land in theinterim, the idea being to save the communitythe greater cost of acquiring improved land orresorting to an undesirable adjustment in thefacility. The statutes authorizing theestablishment and amendment of official mapsare General City Law, sections 26 and 29, TownLaw, sections 270 and 273, and Village Law,section 7-724. The statutes provide a procedurewhereby an owner whose land is shown on a

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map can obtain a permit to build on it. It is herethat the zoning board of appeals has a role toplay.

General City Law, section 35, Town Law,section 280, and Village Law, section 7-734 allprovide that if the land within a mapped streetor highway is not yielding a fair return on itsvalue to the owner, the board of appeals - orother similar board in any city, town or villagewhich has established such a board havingpower to make variances or exceptions inzoning regulations - shall have the power togrant a building permit. The vote of a majorityof the board's membership is required and ahearing must be held, at which the parties ininterest and others must be given theopportunity to be heard. In cities, 15 days'notice of hearing is required; in towns, 10 days'notice is needed, and notice must be publishedin a newspaper of general circulation in themunicipality. The Village Law does not specifyhow such notice is to be given.

The second "non-zoning" area of zoning boardof appeals responsibility concerns a prohibitioncontained in the statutes against issuance ofbuilding permits unless streets giving access tothe structure exist (or a performance bondcovering their construction has been furnished).The prohibition is contained in General CityLaw, section 36, Town Law, section 280-a andVillage Law, section 7-736. As in the case ofofficial maps, the statutes give the zoning boardof appeals the power to make reasonableexceptions to the prohibition, or grant an areavariance, if an applicant appeals to it from anadverse decision of the administrative official incharge of issuance of permits. A 1996amendment to the above statutes removed anobsolete reference to “practical difficulty orunnecessary hardship.” In granting an areavariance from the access requirements of thesestatutes, the board of appeals now must applythe same criteria as are otherwise applicable to

area variances (see discussion of area variances,infra). The procedure for such an appeal is thesame as in the cases of appeals on zoningregulations .

The third area of board power outside thezoning framework has to do with county officialmaps. Under General Municipal Law, section239-e, procedures are established for countyofficial maps which are similar to the localofficial maps described above. As in the caseof the local maps, a procedure is set forth forthe issuance of building permits in land shownon a county official map. General MunicipalLaw, section 239-e(7) gives this function to thelocal zoning board of appeals “or other boardestablished by the municipality . . . to issuevariances or make exceptions in zoningregulations.” However, when issuing permitsfor buildings in lands shown on a county map,the board of appeals must do so by a two-thirdsvote of its membership (it will be rememberedthat permits for building in land shown on alocal official map may be issued by a majorityvote). A hearing is required, on 10 days' notice.

A fourth non-zoning area of board jurisdictionconcerns the issuance of building permits wherea proposed structure has frontage on or access toa county road or other site shown on a countyofficial map. General Municipal Law, section239-f establishes a procedure that municipalitiesmust follow before issuing such a permit. Themunicipality must notify the county planningboard and superintendent of highways (orcommissioner of public works) of anapplication for such a permit. The latter has 10working days to report back to the municipalityhis/her approval or disapproval. The buildingpermit may then be issued only in accordancewith this report - unless the local zoning boardof appeals varies the report's requirements. Todo so, it must act by a two-thirds vote, and aftera hearing on 10 working days' notice.

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The last area of jurisdiction given the zoningboard of appeals by statute concerns airportapproach regulations. Municipalities areauthorized by General Municipal Law, section356 to adopt regulations which would governdevelopment in airport hazard areas, as definedin that section. The section provides thatpersons aggrieved by decisions ofadministrative officials charged with theenforcement of these regulations may appeal tothe local zoning board of appeals.

Limitations on the board's

powers

The board of appeals, then, is an administrativebody, of limited jurisdiction and powers,designed to function as a "safety valve" torelieve the pressure of rigid and inflexibleprovisions of zoning regulations. Howeverlimited the jurisdiction of boards of appeals,they are still vitally important. The legislativebody of a municipality cannot take care of thedetails which come before the board of appeals,nor should it. It is predictable that a zoning lawwill work some hardship on some people,because of its very purpose of applyingrestrictions on land use in various districts inthe community. The board of appeals serves anessential role examining those restrictions in theindividual matters that are brought before it,with the power to vary these restrictions if thecircumstances show the need and essential legalcriteria are met.

At this point in the discussion, having seenwhat boards of appeals may do, we need toclarify what they cannot do. Though it isordinarily preferable to set forth a subject inpositive terms, the functions of a board ofappeals can be seen better if they are contrastedwith the limitations on those functions.

First, bear in mind that a board of appeals is an

administrative body, not a legislative body. Itdoes not have any legislative functions; theseare in the sole province of the city council, thetown board and the village board of trustees.That the board of appeals did not have anylegislative powers was recognized in earlylitigation involving the powers of the board:

"No power has been conferred upon theBoard of Standards and Appeals [the boardof appeals in New York City] to review thelegislative general rules regulating the useof land [cite]. The board does not exerciselegislative powers. It may not determinewhat restrictions should be imposed uponproperty in a particular district. It may notreview the legislative general rulesregulating the use of land. It may notamend such general rules or change theboundaries of the districts where they areapplicable. Its function is primarilyadministrative."23

The above quote contains an excellent capsulereview of the "thou shalt nots" which govern theaction of a board of appeals. First, the board ofappeals may not itself impose zoning. This isthe function of the local legislative body whenit adopts or amends the zoning law. In aninteresting discussion of this point, the StateComptroller observed that:

"We are satisfied that no authority exists inthe General City Law or elsewhere for thedelegation of the law-making powers of alegislative body to a purely administrativeboard, such as a board of zoning appeals."24

What about special use permits? Doesn't theauthority that may be delegated to the board toissue special use permits sound somewhat likea legislative power? The answer is that it is not;it is a purely administrative function, requiringthat standards be set out in the zoning law toguide the board of appeals in passing upon

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applications for such permits. Even if suchstandards are general, courts will look to seethat they have been obeyed.

Nor can a board of appeals review the generalrules laid down by the legislative bodyrespecting the use of land. It has no power toset aside a zoning law on the ground that itsterms are arbitrary, unreasonable andunconstitutional.25

Also, the board of appeals does not have theauthority to amend the zoning regulations orchange the boundaries of the districts wherethey are applicable. Understandably, thedistinction between the power possessed by aboard of appeals to grant variances, and thepower to amend a zoning law, which the boardof appeals clearly does not possess, may be avery fine distinction indeed. But it is animportant distinction. An amendment to zoningrequires legislative action by the governingboard. The change thus enacted should besupported by the municipality’s comprehensiveplan, but requires no proof of hardship or anyshowing of facts relating to a specific parcel ofland.

Against this background, the State Comptroller,in Opinion No. 65-770, examined a number ofcases in which the purported granting of avariance was held to be instead an attempt bythe board of appeals to amend the zoningregulations. Rather than attempt to paraphrasethis part of the excellent opinion , we will quoteat length:

"Perhaps illustrations will be more helpfulthan explanations. In Schmitt v. Plonski(215 N.Y.S.2d 170), a board of zoningappeals had granted a variance to constructa motel in a district where motels wereprohibited. When the owner sought apermit to construct a theater on the plot, hewas refused and this refusal was upheld by

the court on the ground that the varianceoriginally granted did not alter theclassification of the land so as to permit ofother uses equal with a motel. The variancehad simply permitted the motel-use of theland; it had in no way amended the zoningordinance or reclassified the land.

As Anderson (supra, section 18.54 p. 604)points out, ̀ Most variances involve a singlelot or at least a small parcel of land. Wherea variance granted by a board of zoningappeals purports to permit the use of a largetract of land for a proscribed purpose, thereis a strong possibility that the purportedvariance will be called an amendment . . .'[Ed. note: the foregoing discussion byAnderson is now substantially found inSalkin, New York Zoning Law and Practice,§29:51.]

Accordingly, in each of the followinginstances, the court upheld a refusal by aboard of zoning appeals to grant a so-calledvariance, on the ground that the transfer ofa large tract from one classification toanother really constituted a zoningordinance amendment:

1. Reclassifying as commercial a 5 ½ acretract which constituted an entire residentialdistrict (Re Northampton Colony, Inc., 30Misc.2d 469, 219 N.Y.S. 2d 292, aff'd 16App. Div.2d 830, 230 N.Y.S.2d 668(1961)).

2. Reclassifying into one-acre building lotsa 40-acre area zoned for two-acre residentiallots (Hess v. Zoning Board of Appeals, 17Misc.2d 22, 188 N.Y.S.2d 1028 (1955)).

We think that all the foregoing rendersconclusive the principle that a board ofzoning appeals may not be delegated thepower to amend a zoning ordinance or to

9

legislate with respect thereto. Its powers inthis regard are limited to the granting ofvariances within the meaning of that term ashereinbefore discussed."

That the board of appeals is limited in its powerto grant variances by the criteria specified in theenabling statutes has been made clear by theCourt of Appeals.26

Interpretations

What is an interpretation?

The zoning enabling statutes provide boards ofappeals with the power to hear and decideappeals from and review decisions of theadministrative official responsible for theenforcement of the zoning regulations. The27

statutes specifically allow the board to reverseor affirm, wholly or partly, or to modify thedecisions appealed to it. This general28

statement of the board’s appellate jurisdictionallows the board to interpret the municipality’szoning regulations.

The interpretation power is part of the appellatejurisdiction of the board of appeals, and cannotlawfully be exercised unless an appeal has beentaken from an enforcement officer’s decision.29

In its simplest terms, an appeal seeking aninterpretation is an appeal to the board ofappeals claiming that the decision of theenforcement official was incorrect.

For example, if an applicant for a buildingpermit receives a decision from the zoningenforcement official denying the permit, and ifthe applicant believes that the permit shouldhave been granted under the terms of the zoninglaw, the applicant may appeal from the denial tothe board of appeals. The appeal would claimthat the denial of the permit was incorrect, andwould ask the board of appeals to reverse the

decision of the enforcement official. Thus, inHinna v. Board of Appeals , the applicant had30

applied to the building inspector for a permit tobuild a motel. The application was denied,since it was not clear that motels were allowedin the zoning district. The applicant appealedfrom that denial to the board of appeals, seekinga decision interpreting the zoning ordinance inher favor. The board of appeals upheld thedenial of the permit, and agreed with thebuilding inspector’s interpretation that thezoning district regulations did not permitmotels. The board of appeals’ decision wassubsequently sustained by a court.

The appeal could also be from a decision of theenforcement official citing a violation of thezoning regulations. Thus, in Matter of Levinev. Buxenbaum , the court held that the board of31

appeals has the power to hear an appeal from anotice of violation where the landownerclaimed that there was in fact no violationbecause the property was a valid non-conforming use.

An appeal may also be taken to the zoningboard of appeals from a decision of theenforcement official issuing a permit. Thus,where a permit has been issued, a neighbor mayfile an appeal with the board of appealsclaiming that the issuance was incorrect, andasking the board to interpret the zoningregulations and reverse the decision of theenforcement official. Thus, in Pansa v.32

Damiano , petitioners, who owned residential33

property, were able to appeal to the board ofappeals from the issuance of a permit for astructure on property adjacent to theirs. Theyclaimed that the permit had been issued for ause which was prohibited in the zoning districtand that the setback requirements were violated.

Regardless of the type of action appealed from,the board of appeals may interpret the languageof the zoning regulations, apply it to the facts

10

before it and render a decision. The statutesprovide that the board shall make such order,decision or determination "as in its opinionought to have been made in the matter by theadministrative official charged with theenforcement" of the zoning regulations.

The basis of an interpretation

The Court of Appeals has held that a zoningboard of appeals performs a “quasi-judicial”function when it renders an interpretation of azoning provision, and, as such, should actaccording to its own precedent. Thus, where34

a board of appeals has interpreted a particularprovision of the municipal zoning law in a priorcase, it should follow that precedent. Thisrequirement points up the essentiality of goodrecord-keeping, and of maintaining easyreference to prior decisions. The ideal systemwill cross-reference the filing of case recordsaccording to several parameters, such as: zoninglaw provision interpreted; location of property;name of appealing party(ies); as well as bysimple chronology.

Where there are no prior decisions to rely on,the board of appeals should attempt todetermine the governing board’s original intentin enacting the provision in question. Inarriving at this determination the board shouldconsider prior documentation such as: minutesof governing board meetings; testimony of localofficials; and planning advisory documentswhich may have accompanied the enactment.Case law may also furnish guidance. Althoughthe substance of zoning is generally a localmatter, courts have on occasion applied broadinterpretive principles in particular zoningcontexts, for example, where the questionconcerns a customary accessory use. In a recentdecision, the Appellate Division upheld a city’sboard of appeals in its determination that a“beaming” (or hair-removal) operation was not

a customary accessory use to a leather finishingfacility, where the facility had been in businessfor many years as a lawful nonconforming use,without performing “beaming,” and where the“beaming” would have introduced chemicalprocesses not theretofore employed at thefacility. 35

Finally, where the case calls for the board ofappeals to interpret the meaning of a term, andthere is no precedent to guide the board, it maydesire to refer to one or more of the variouszoning treatises containing standard definitionsof terms, or even to the dictionary.

Variances

What is a variance?

As noted in the introduction, various "safetyvalves" were built into the original New YorkCity zoning ordinance in 1916, the mostimportant of which is the zoning board ofappeals’ power to grant variances.

It is the purpose of the following sections toexamine the role of the variance in the generalscheme of zoning.

In essence, a variance is permission granted bythe zoning board of appeals so that propertymay be used in a manner not allowed by thezoning. It is only the zoning board of appealsthat has the power to provide for suchexceptions from the zoning. And since zoningis meant to implement the municipality'sdevelopment objectives and protect the health,safety and general welfare of the people, itfollows that there are strict rules governingwhen variances may be provided.

There are two types of variances - use and area -and we will take them up separately since therules for each are different.

11

One point should be emphasized at the outset.Though it is not a legislated change in zoning,a variance is essentially a change in the zoninglaw as it applies to the subject parcel of land. Ittherefore applies to the land itself, and notmerely to the owner who happens to haveapplied for it. While a variance may beconditioned so as to be temporary where thenature of the use will be temporary (e.g., aconstruction trailer), the typical variance mustinstead “run with the land.” It cannot be madeto apply only to the current owner.

“It is basic that a variance runs with the landand, ‘absent a specific time limitation, itcontinues until properly revoked’ . . .”36

The Use variance

The use variance has been defined as:

". . . one which permits a use of land whichis proscribed by the zoning regulations.Thus, a variance which permits acommercial use in a residential district,which permits a multiple dwelling in adistrict limited to single-family homes, orwhich permits an industrial use in a districtlimited to commercial uses, is a usevariance."37

As the use variance grants permission to theowner to do what the use regulations prohibit,this power of the board of appeals must beexercised very carefully lest there be seriousconflict with the overall zoning scheme for thecommunity. The showing required forentitlement to a use variance is thereforeintended to be a difficult one. The General City Law, Town Law and VillageLaw specifically incorporate this concept intothe language of the statutes. The statutes38

provide as follows:

"‘Use variance’ shall mean theauthorization by the zoning board ofappeals for the use of land for a purposewhich is otherwise not allowed or isprohibited by the applicable zoningregulations."

Early cases in New York State recognized,without defining terms, that a zoning board ofappeals had an important function in thegranting of variances. The courts, up until1939, had discussed general criteria for thegranting of variances. Although these earlydecisions recognized the importance of thevariance procedure and its inherent limitations,it was in that year that the landmark case ofOtto v. Steinhilber, supra, was decided, andlaid down specific rules governing the findingof unnecessary hardship in the granting of usevariances. In that case, the owner of a parcel ofproperty which was located in both a residentialand commercial zone applied for a varianceenabling him to use the entire parcel for askating rink, which was a permitted commercialuse. The lower court upheld the granting of theuse variance, which ruling was affirmed by theAppellate Division. The Court of Appeals, thehighest court in the State, reversed theseholdings and in doing so, set forth the definitiverules that are still followed today. Indeed, now,these rules are codified in the State statutes.

The court found that the object of a use variancein favor of property owners sufferingunnecessary hardship in the operation of azoning law ". . . is to afford relief to anindividual property owner laboring underrestrictions to which no valid general objectionmay be made." After a discussion of the role ofthe zoning board of appeals in the granting ofvariances, the court found that a board couldgrant a use variance only under certain specifiedfindings:

"Before the Board may exercise its

12

discretion and grant a variance upon theground of unnecessary hardship, the recordmust show that (1) the land in questioncannot yield a reasonable return if used onlyfor a purpose allowed in that zone; (2) thatthe plight of the owner is due to uniquecircumstances and not to the generalconditions in the neighborhood which mayreflect the unreasonableness of the zoningordinance itself; and (3) that the use to beauthorized by the variance will not alter theessential character of the locality."39

These rules have since become known byalmost all practitioners as the "Otto" rules forgranting use variances.

The court found that the petitioner was notentitled to the variance sought, because thethree grounds cited above had not been proven.Of greater importance is the fact that once thecourt had enunciated these rules, a greatelement of certainty had been injected into thisfield of law. Hardly a court decision in this areahas since been handed down that has not citedthe rules formulated in the Otto case.

The statutes essentially codify the Otto rules,40

and those of cases following Otto, specificallyregarding the issuance of use variances in cities,towns and villages:

“(b) No such use variance shall be grantedby a board of appeals without a showing bythe applicant that applicable zoningregulations and restrictions have causedunnecessary hardship. In order to provesuch unnecessary hardship the applicantshall demonstrate to the board of appealsthat for each and every permitted use underthe zoning regulations for the particulardistrict where the property is located, (1) theapplicant cannot realize a reasonable return,provided that lack of return is substantial asdemonstrated by competent financial

evidence; (2) that the alleged hardshiprelating to the property in question isunique, and does not apply to a substantialportion of the district or neighborhood; (3)that the requested use variance, if granted,will not alter the essential character of theneighborhood; and (4) that the allegedhardship has not been self-created.”

It will be noted that the overall statutory test forthe issuance of use variances remains"unnecessary hardship" as the Court of Appealsheld in the Otto case. The statutes now definethat term, using the three criteria based upon theOtto case, as they have been refined by courtdecisions over the years. The fourthrequirement in the above language is based uponcourt decisions after the Otto case, which heldthat a use variance cannot be granted where theunnecessary hardship was created by theapplicant.

The Otto rules have been refined by courtdecisions over the years. In cities, towns andvillages, the statutory rules for granting usevariances reflect these decisions. The best wayto understand the rules is to examine each in itsturn, together with the court decisions thatshaped them.

Reasonable return

The statutes provide that the first test for the41

issuance of a use variance is that the applicantmust demonstrate to the board of appeals that:

"the applicant cannot realize a reasonablereturn, provided that lack of return issubstantial as demonstrated by competentfinancial evidence."

In essence, this is a restatement, in the Statestatute, of the first prong of the Otto test.

The salient inquiry is whether the use allowed

13

by the zoning law is yielding a reasonablereturn. An applicant must prove that he or she42

cannot realize a reasonable return from each ofthe uses permitted in the zoning district. Themere fact that the property owner may suffer areduction in the value of property because of thezoning regulations, or the fact that anotherpermitted use may allow the sale of the propertyfor a better price, or permit a larger profit ,43

does not justify the granting of a variance on thegrounds of unnecessary hardship.44

It has been held that only by actual "dollars andcents proof" can lack of reasonable return beshown. In the case of Everhart v. Johnston , a45

variance was granted to the owner of a propertyin a residential zone to enable him to house aninsurance and real estate agency. A StateSupreme Court annulled the granting of thevariance, which determination was affirmed bythe Appellate Division, which found "acomplete lack of the requisite proof as to thefirst requirement (i.e., that the land in questioncannot yield a reasonable return if used only fora purpose allowed in that zone).” The courtexplained its findings as follows:

"A mere showing of present loss is notenough. In order to establish a lack of`reasonable return', the applicant mustdemonstrate that the return from theproperty would not be reasonable for eachand every permitted use under the ordinance(Matter of Forrest v. Evershed, 7 N.Y. 2d256). Moreover, an applicant can sustainhis burden of proving lack of reasonablereturn, from permitted uses only by ‘dollarsand cents proof’ . . .” (Id.)

The "dollars and cents proof" rule was againenunciated in a Court of Appeals case whichheld that "a landowner who seeks a use variancemust demonstrate factually, by dollars and centsproof, an inability to realize a reasonable returnunder existing permissible uses." 46

At this point, it would be good to mentionbriefly a property use that is especially hard hitby the reasonable return requirement. That is anonconforming use, upon which an especiallyheavy burden falls when it must be shown thatthe user cannot derive a reasonable return fromany permitted use. An applicant who maintainsa nonconforming use must not only show thatall permitted uses will be unprofitable, but alsothat the nonconforming use itself cannot yield areasonable return. In a case in which the ownerof a nonconforming gasoline station applied fora variance, the court pointed out this additionalburden.

"In order to demonstrate hardship, thepetitioners had the burden of showing that‘the land in question cannot yield areasonable return if used only for a purposeallowed in that zone.’ Since the operation oftheir gasoline station, as it presently exists,was a nonconforming use which was sufferedto continue because it had been devoted tosuch a use before the prohibitory zoningordinance took effect, it was a use which wasallowed in that zone.’ Business ‘A’ uses,such as retail stores generally, real estateoffices, etc., were also, of course, ‘allowed inthat zone.’ Hence, the petitioners had theburden of proving that their property couldnot yield a ‘reasonable return’ if used for agasoline station (as it presently exists) or forany business ‘A’ use (retail stores generally,real estate offices, etc.)."47

Unique circumstances

The second test that an applicant for a usevariance must adhere to under the state statutes,is that the property’s plight is due to uniquecircumstances and not to general neighborhoodconditions.

The statutes provide that an applicant must48

demonstrate to the board:

14

"that the alleged hardship relating to theproperty in question is unique, and does notapply to a substantial portion of the districtor neighborhood."

As a leading text writer has observed:

"Difficulties or hardships shared with othersgo to the reasonableness of the ordinancegenerally and will not support a variancerelating to one parcel upon the ground ofhardship."49

The Court of Appeals, in the early case ofArverne Bay Construction Co. v. Thatcher ,50

had before it a case involving the owner of landin a district classified as residential, in an areaalmost completely undeveloped, who sought avariance enabling him to operate a gasolinestation. The Court of Appeals held a varianceshould not have been granted. The court stated:

"Here the application of the plaintiff for anyvariation was properly refused, for theconditions which render the plaintiff'sproperty unsuitable for residential use aregeneral and not confined to plaintiff'sproperty. In such case, we have held thatthe general hardship should be remedied byrevision of the general regulation, not bygranting the special privilege of a variationto single owners."

This finding of "uniqueness" has also beenreferred to by the Court of Appeals as that of"singular disadvantage" by the virtue of azoning ordinance. In the case of Hickox v.Griffin , the court stated:51

"There must at least be proof that aparticular property suffers a singulardisadvantage through the operation of azoning regulation before a variance thereofcan be allowed on the ground of`unnecessary hardship'."

In Douglaston Civic Association, Inc. v. Klein ,52

the Court of Appeals discussed the "uniquecircumstances" requirement and held that theproperty was indeed unique, justifying the grantof the variance:

"Uniqueness does not require that only theparcel of land in question and none other beaffected by the condition which creates thehardship . . . What is required is that thehardship condition be not so generallyapplicable throughout the district as torequire the conclusion that if all parcelssimilarly situated are granted variances thezoning of the district would be materiallychanged. What is involved, therefore, is acomparison between the entire district andthe similarly situated land."

A use variance was properly granted inDouglaston where the land in question wasshown to be swampy, even though other land inthe vicinity shared that characteristic. Theuniqueness requirement must be addressed inthe context of the nature of the zone in general.Such a relationship makes sense when it isremembered that a variance should not be usedin lieu of a legislative act. A parcel for which avariance has been granted, therefore, need nothave physical features which are peculiar to thatparcel alone (as required in Hickox, above). Onthe other hand, the hardship caused by physicalfeatures cannot prevail throughout the zone tosuch an extent that the problem should beaddressed by legislative action, such as arezoning.

The uniqueness relates, therefore, to thehardship, which in turn relates to the land, andnot to the personal circumstances of the owner.In Congregation Beth El of Rochester v.Crowley , a religious organization whose53

synagogue had burned down applied for a usevariance so that it could sell the now-vacantproperty for construction of a gasoline service

15

station. The organization argued that theuniqueness standard was satisfied in that it wasfinancially impracticable to rebuild a synagogueon the site. The court instead held that “It is notthe uniqueness of the plight of the owner, butuniqueness of the land causing the plight, whichis the criterion.”

Essential character of theneighborhood

The third test that must be met pursuant to statestatutes before a use variance may properly be54

granted, is that

"the requested use variance, if granted, willnot alter the essential character of theneighborhood."

Because one of the basic purposes of zoning isto adopt reasonable regulations in accordancewith a comprehensive plan, it follows thatchanges which would disrupt or alter thecharacter of a neighborhood, or a district, wouldbe at odds with the very purpose of the zoningregulation itself. Thus, in the case of HolySepulchre Cemetery v. Board of Appeals ofTown of Greece , a nonprofit cemetery55

corporation sought a variance to enable it toestablish a cemetery where such use was notprovided for in the applicable zoning ordinance.The court conceded the fact that the areasurrounding the property in question wassparsely settled and practically undeveloped,but upheld the action of the board denying theuse variance sought. The court recognized theright of the zoning board of appeals to takenotice of the fact that a residential buildingboom could reasonably be expected in a fewyears, and that the proposed cemetery couldquite possibly interfere with the residentialdevelopment of the section.

In another case, a transit corporation sought to

lease land in a residential zone, used as a busloop, to an oil company, which planned to erect agasoline station. The court found that the zoningboard of appeals properly refused to grant the usevariance, because the variance, if granted, wouldinterfere with the zoning plan and the rights ofowners of other property, and that the evidencebefore the board was sufficient to sustain itsfindings that the requested use, if permitted, " . .. would alter the essential residential character ofthe neighborhood."56

In the case of Matter of Style Rite Homes, Inc.v. Zoning Board of Appeals of the Town ofChili , the plaintiff corporation owned property57

in a one-family residential district, part ofwhich was appropriated by the State forhighway purposes. The plaintiff then appliedfor a use variance permitting it to use itsremaining land for a garden apartmentdevelopment. In upholding the decision of thezoning board of appeals denying the usevariance, the court held that:

"Finally, it seems clear that the plaintiff'sproposed use of the property for a 60-familymultiple dwelling complex is incompatiblewith the over-all plan and policy fordevelopment of the town and would createconditions distinctly different from thoseexisting in the locality by adding problemsincident to an increase in population densityas well as unquestionably altering theessential character of an otherwiseresidential neighborhood developed inreliance on the stability of the ordinance."

One court has held that the applicant will failthis third test if it is shown that the proposedproject would “stimulate a process which intime would completely divert . . .[theneighborhood’s] . . . complexion.” In otherwords, the proposed project need not in and ofitself alter the character of the neighborhood ifit is shown that the project would set a pattern

16

for future development that would, in time, alterthe neighborhood’s character.58

Self-created hardship

While it was not a factor in the Otto decision,there is one more important consideration thatmust be noted before leaving the discussion ofuse variances. That is the so-called rule of"self-created hardship." The self-createdhardship rule has now been codified in thestatutes.59

It is well settled that a use variance cannot begranted where the "unnecessary hardship"complained of has been created by theapplicant, or where she/he acquired the propertyknowing of the existence of the conditionshe/he now complains of. In Carriage WorksEnterprises, Ltd. v. Siegel , in addressing self-60

created hardship, the court stated “The courtsshould not be placed in the position of having toguarantee the investments of careless landbuyers.” The same advice should apply tozoning boards of appeals.

In the case of Clark v. Board of ZoningAppeals , the Court of Appeals, before61

proceeding to discuss the grounds necessary forthe granting of a use variance, noted that theproperty in question was purchased to be usedas a funeral home in a district where such usewas not permitted under the zoning ordinance.The court observed that:

"Nevertheless . . .[ the owner] . . . purchasedthe lot, then applied for a variance. Wecould end this opinion at this point bysaying that one who thus knowinglyacquires land for a prohibited use, cannotthereafter have a variance on the ground of`special hardship' . . ."62

Note, however, that a contract vendee – i.e., aperson who enters into an agreement with the

owner to purchase the property contingent onthe grant of a variance – is a legitimate “personaggrieved” (see “Who are proper parties beforethe board,” below). Since the contract vendeehas yet to purchase the property, he/she cannotbe said to present self-created hardship, butmust rely on the circumstances of the ownerwith whom he/she has a contract.

A final word on use variances

The rules laid down in the statutes and in theapplicable cases are requirements. They mustbe used by zoning boards of appeals inreviewing applications for use variances.Furthermore, the board must find that each ofthe elements of the test has been met by theapplicant.

The board must also consider the effect of thegrant of the use variance on the zoning lawitself. The Court of Appeals pointed out in theClark decision, supra,

“. . . no administrative body may destroy thegeneral scheme of a zoning law by [grantingvariances indiscriminately] . . .”

The Area variance

The statutes define an area variance as63

follows:

"‘Area variance’ shall mean theauthorization by the zoning board ofappeals for the use of land in a mannerwhich is not allowed by the dimensional orphysical requirements of the applicablezoning regulations."

Area variances are thus, as a practical matter,distinguished from use variances in that a usevariance applies to the use to which a parcel ofland or a structure thereon is put, and an area

17

variance applies to the land itself. In mostcases, the difference is clear-cut. If an applicantfor a variance wishes to use his property in aresidential district for a funeral home, heobviously wants a use variance; if, however, hewishes to build an extra room on his house, andit would violate a side yard restriction, an areavariance is just as obviously called for.

The rules for the issuance of area variances inall municipalities have changed dramaticallysince 1992. Prior to July 1, 1992, the standardfor the issuance of all area variances was that of"practical difficulty." This term had appearedin the statute for many years and had beeninterpreted by the courts in a great number ofcases significant to its understanding. SinceJuly 1, 1992, however, the Town Law and theVillage Law no longer employ this standard,and, since July 1, 1994, the term is no longerapplicable in cities. The historic casesinterpreting "practical difficulty" will, therefore,not be discussed here.

The statutes now specifically set forth the rulesfor the granting of area variances. They64

provide that in making its determination on anapplication for an area variance, the board ofappeals must balance the benefit to be realizedby the applicant against the potential detrimentto the health, safety and general welfare of theneighborhood or community if the variancewere to be granted. In balancing theseinterests, the board of appeals must consider thefollowing five factors:

1. Whether an undesirable change will beproduced in the character of theneighborhood or a detriment to nearbyproperties will be created by the granting ofthe area variance.

2. Whether the benefit sought by theapplicant can be achieved by some method,feasible for the applicant to pursue, other

than an area variance.

3. Whether the requested area variance issubstantial.

4. Whether the proposed variance will havean adverse effect or impact on the physicalor environmental conditions in theneighborhood or district.

5. Whether the alleged difficulty was self-created, which consideration shall berelevant to the decision of the board ofappeals, but shall not necessarily precludethe granting of the area variance.

The best way to understand the rules is toexamine each in its turn, together with the courtdecisions that rely on them.

Undesirable change in theneighborhood

The board must consider whether thedimensional alteration being proposed willresult in a structure or a configuration that willbe seriously out of place in the neighborhood.In Pecoraro v. Board of Appeals of the Town ofHempstead , the Court of Appeals upheld the65

denial of an area variance that would havereduced the minimum lot size from 6,000square feet to 4,000, and would have reducedthe required frontage from 55 feet to 40. Thecourt held that the board of appeals couldrationally conclude that the proposal wouldseriously compromise the character of theneighborhood, which consisted overwhelminglyof parcels which met the required minimums.

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Alternative to variance

Here, the board should consider alternativesopen to the applicant that are lawful under thezoning. Perhaps, for example, a proposedaddition can be constructed in a differentlocation on the property, where a variancewould not be needed. Or, as one court recentlyobserved, the applicant should have at leastexplored the possibility, either of acquiringadjoining vacant property, or of selling hissubstandard unimproved lot to an adjoiningneighbor.66

Substantiality

It is difficult to quantify “substantiality.” Theboard should, however, make a reasonedjudgment as to whether the nonconformitybeing proposed is too great, as compared to thelawful dimensions allowed by the zoning law.Some courts have looked favorably upon aboard’s application of a simple mathematicalanalysis. In Heitzman v. Town of Lake GeorgeZoning Board of Appeals , the court upheld the67

denial of a variance based in part on theshowing that construction would have exceededthe allowable lot coverage by 15%.

Impact on environment

Here, the board of appeals should weigh theproposal’s potential impact on such factors asdrainage, traffic circulation, dust, noise, odor,and impact on emergency services, amongothers. In one case, a court upheld the grant ofa height variance allowing construction of afence which would screen several exhaust fansinstalled at the rear of a diner. The court heldthat substantial evidence supported the board’sdecision that the fence would protect theaesthetics of the diner, which had uniquedesign, that installation of a grease reservoirwould prevent grease from dripping to the

ground, and that the fence would keep greaseand fumes from neighboring property.68

Self-created difficulty

One court shed light on the possible scenarios69

constituting self-created difficulty as follows:

“Where the lot was substandard andnonconforming at the time it was purchased. . . , or where construction occurred due tocontractor’s error . . . , or without thebenefit of a building permit . . , or where anapplicant seeks to construct three homes ona parcel zoned for one house.”

On the other hand, said the same court, when anowner builds on a lot he does not therebypreclude himself from obtaining a variance foradditional construction in the future. Thus, theboard of appeals should not

“require homeowners to anticipate all futureneeds and property uses before oneconstructs a home, otherwise all subsequentnonconforming desires would be rejected asself-created.” 70

But perhaps the most important point we canmake here is that self-created difficulty, as itrelates to an area variance application, is not thesame as self-created hardship, as set forthabove with respect to the use variance. Even ifpresent, it constitutes only one factor to beconsidered by the board of appeals; it does not,in and of itself, act as a bar to the grant of anarea variance.

Several significant cases have been decided bythe courts since the revised area variancestandards went into effect in the early 1990's.In Sasso v. Osgood , the Court of Appeals71

reversed a decision of the Appellate Division,which had applied the “practical difficulty” test

19

despite its recent disappearance from thestatute. The Court of Appeals held that:

“. . . the legislation was enacted to aidnlaypersons–both applicants and laymembers of Zoning Boards of Appeal--inunderstanding and implementing theexisting case law . . .

. . . .

“We conclude Town Law § 267-b(3)(b)requires the Zoning Board to engage in abalancing test, weighing ‘the benefit to theapplicant’ against ‘the detriment to thehealth, safety and welfare of theneighborhood or community’ if the areavariance is granted, and that an applicantneed not show ‘practical difficulties’ as thattest was formerly applied.”

In Cohen v. Board of Appeals of the Village ofSaddle Rock , the Court of Appeals struck72

down a village’s local zoning law to the extentthat it applied standards for the grant of an areavariance which went beyond those found inVillage Law § 7-712(b)(3). In fact, the village’sown law required adherence to the old“practical difficulty” standard. The Court held:

“faced with the turmoil and uncertainty thathad plagued the law in this area, theLegislature intended to occupy the field andthus preempt local supersession authority.

. . . .

“A uniform standard for area variancereview . . . has clear advantages. Propertyowners and zoning practitioners around thestate will benefit from a betterunderstanding of the standards for avariance, notwithstanding the unique zoningrequirements of each individual locality . .. And far from being an encroachment onlocal zoning authority, the application of auniform standard ensures that each locality's

zoning decisions will be reviewedconsistently by the courts without beingsubject to the vagaries of a standard elusiveof easy definition or clear application . . .”

Minimum variance necessary

The statutes codify what the courts had73

previously held: When granting either a use oran area variance, a zoning board of appealsmust grant the minimum variance that it deemsnecessary and adequate, while at the same timepreserving and protecting the character of theneighborhood and the health, safety and welfareof the community. Thus, the board need notgrant to an applicant everything he/she hasasked for. Rather, the board is required to grantonly the approval that is absolutely necessary toafford relief.

To illustrate this point, in Nardone v. ZoningBoard of Appeals of the Town of Lloyd , the74

applicant requested variances to locate 12 one-bedroom and three two-bedroom apartments onone parcel, and six two-bedroom apartments onanother parcel. The board instead granted avariance allowing only the construction of 12one-bedroom apartments on one parcel, and fivetwo-bedroom apartments on the other. Thecourt held that the board had acted rationallyand within its scope of discretion in granting amodified approval that, on the facts presented,would afford adequate relief to the owner.

Conditions

The statutes empower the board of appeals,75

when granting a use or area variance, to impose“such reasonable conditions and restrictions asare directly related to and incidental to theproposed use of the property.” While thestatutes now expressly authorize the setting ofconditions, the courts long ago held that boards

20

of appeals have the inherent power to imposereasonable conditions to protect theneighborhood. 76

We should clearly distinguish conditions fromalternatives. While an alternative is a differentversion of relief – or, perhaps, a way to avoidthe need for relief – conditions are insteadrequirements placed on the enjoyment of therelief that the board actually grants. Conditionsare meant to mitigate the impacts of theapproved project on both the neighborhood andon the integrity of the zoning law.

Conditions must relate solely to the particularland that is the subject of the application, andmust not concern unrelated land or other issues.In Gordon v. Zoning Board of Appeals of theTown of Clarkstown , the court struck down a77

condition requiring an owner, as a condition ofthe grant of a side-yard variance, to dedicate astrip of her front yard for a future road-widening project.

Further, the conditions must relate to the landand may not be personal to the owner. In St.Onge v. Donovan the Court of Appeals struck78

down a condition placed on the grant of a usevariance for a real estate office. The conditionrestricted the variance to use by the then-currentowner only. Similarly, the courts have held thatconditions applied to any land use approvalmust relate to the legitimate objectives ofzoning, and not to matters related solely to theoperation of a business. The decision in Matterof Summit School v. Neugent , is practically a79

primer on this point. In the Summit Schoolcase, a village zoning board of appeals hadplaced a number of conditions on the grant of aspecial use permit and a variance to operate aprivate school for children with learningdisabilities. The conditions related to ages ofstudents, months, days and hours of operationof the school, number of students enrolled,teacher-to-student ratio, and degree of

supervision of the students. The court struckdown all of the conditions, stating:

“The power of a board of appeals to imposeconditions . . . is not unlimited. Theconditions so established must relatedirectly to, and be incidental to, theproposed use of the real property and not tothe manner of the operation of the particularenterprise conducted on the premises . . .”

Procedure by and beforethe Board

Procedure by and before the zoning board ofappeals sounds like a topic to curl up with infront of the fireplace, in a comfortable leatherarmchair, dog at side, pipe and tobacco at hand,on a rainy Sunday afternoon. Proceduralmatters are rarely the most exciting aspect ofanything, whether it is getting a driver's license,buying a house, or getting married.

Yet proper procedure is of singular importancein the administration and enforcement of thecommunity's zoning law - that investment in itsfuture development. Quite aside fromprotecting the board against legal challenges, itsadherence to procedural requisites shouldensure evenhandedness and due process for allparties. This section surveys the issues mostfrequently causing problems for zoning boardsof appeals, and those who must deal with them.It discusses the problem of proper parties inproceedings before these boards, generalprocedural matters (including the notice andhearing requirements and how a hearing shouldbe conducted), and what constitutes a properdecision.

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Who are proper parties before

the board?

As discussed above, zoning boards of appealsare provided with appellate jurisdiction directlyby state statute. This, of course, envisionsappeals to the board from decisions of theadministrative official charged withenforcement of the zoning. Indeed, the statutesso provide. The appeals may be seeking80

interpretations, use variances or area variances.

It should be emphasized that the board ofappeals has jurisdiction only over appeals thatinvolve zoning decisions of the enforcementofficer. Decisions involving enforcement of theNew York State Uniform Fire Prevention andBuilding Code are not appealed to the localzoning board of appeals. They are insteadappealed to the regional Uniform Code ReviewBoard having jurisdiction over the locality.

As of July 1, 1994, the statutes have beenuniform in limiting boards of appeals toappellate jurisdiction "unless otherwiseprovided by local law or ordinance." This"unless otherwise provided" language evidencesthe legislative intent that municipal zoningordinances and local laws may continue to vestboards of appeals with original jurisdiction oversuch approvals as special use permits.

We are dealing, then, with two types of parties:those who are appealing from decisions madeby the enforcement officer (under strictapplication of the regulations), on the one hand,and those who are seeking a decision by thezoning board of appeals on some matter overwhich it has original jurisdiction, on the other.An example of the latter would be a personseeking a special use permit where the zoninglaw assigns the power to issue these to thezoning board of appeals. In this instance, thejurisdiction of the board of appeals is not

appellate, and thus the parties would merely bethose seeking the permit.

In dealing with parties who are filing appealswith the zoning board of appeals, we areconcerned with several categories of parties.First, the person who applied to the zoningenforcement officer for a zoning permit and wasrefused is (or may be) aggrieved by the refusal.Second, the person who was cited for a zoningviolation may be aggrieved. Third, the personwho lives next door or nearby may be aggrievedby the issuance of a zoning permit to someoneelse. Since the right to appeal to the board ofappeals does not extend to everyone, it isnecessary to understand the concept of the"person aggrieved" who has sufficient standingto be able to properly appeal to the board.

The question which presents itself, then, is whatis a "person aggrieved?" To find the answer,we must turn to case law, since the statutes donot provide guidance.

A good starting point would be Matter ofHilbert v. Haas , in which an appeal was made81

to a zoning board of appeals after the refusal ofthe building inspector to make any decision atall. The court noted that since no decision hadbeen made by the building inspector, the zoningboard of appeals had no right to hear and decideany appeal. The first requisite to there beingany parties would appear to be a decision by thebuilding inspector. Without that, theappropriate remedy for someone who seeks adecision would have to be an Article 78mandamus proceeding against the buildinginspector, and not an appeal to the zoning boardof appeals.

To examine some cases on this issue, we shallstart with a situation directly involving alandowner. Clearly he/she is a party entitled toappeal to a zoning board of appeals if his/herland is substantially affected. This would

22

include the owner of land whose ownapplication for a permit has been denied; his/herinterest is direct. There is also authority forextension of this to include a lessee under along-term lease. In S.S. Kresge Co. v. City ofNew York , the lessee had the right to demolish82

and erect buildings under a lease which hadover 30 years to run, and the court said that insuch an instance, the lessee " . . . stands in theshoes of, and is entitled to the same rights andprivileges as, the owner."

Very few cases exist that define personsaggrieved for purposes of appeals to boards ofappeals. The great number of cases definingpersons aggrieved for purposes of appeals fromboards of appeals are, however, of value sincethe issues are essentially the same. Certainly, ifa person is found to be aggrieved so that he mayappeal to a court from a zoning board of appealsdecision, someone just like him would beentitled to appeal to the board of appeals.

The leading case of Sun-Brite Car Wash, Inc. v.Board of Zoning and Appeals of the Town ofNorth Hempstead contains a good discussion83

of standing in the context of appeals to thecourts. It provides some help, therefore, indetermining who may properly appeal to aboard of appeals. The Court of Appeals statedas follows:

"While something more than the interest ofthe public at large is required to entitle aperson to seek judicial review - thepetitioning party must have a legallycognizable interest that is or will be affectedby the zoning determination - proof ofspecial damage or in-fact injury is notrequired in every instance to establish thatthe value or enjoyment of one's property isadversely affected . . . it is reasonable toassume that, when the use is changed, aperson with property located in theimmediate vicinity of the subject property

will be adversely affected in a way differentfrom the community at large; loss of valueof individual property may be presumedfrom depreciation of the character of theimmediate neighborhood. Thus, anallegation of close proximity alone maygive rise to an inference of damage or injurythat enables a nearby owner to challenge azoning board decision without proof ofactual injury . . ."84

Now let us examine some of the casesaddressing the question of who is a "personaggrieved."

The case of Eckerman v. Murdock held that a85

mortgagee has sufficient economic interest tobe a "person aggrieved." In the case of HenryNorman Associates, Inc. v. Ketler an applicant86

for a variance had a contract with the owner ofthe land involved under which he, theprospective purchaser, would be obligated topurchase only if the variance were granted. Thecourt held (1) that the contract vendee (buyer)under this conditional sales contract was aperson aggrieved for purposes of appealing tothe zoning board of appeals for a variance, and(2) the owner of the land -- the vendor (seller)under the same contract -- was a personaggrieved for purposes of appealing from theboard of appeals decision to the court. To thesame effect is Slater v. Toohill in which the87

court held that the conditional sales contractvendee may be deemed the agent of the ownerof the property for which a variance was sought.

Moving on, we find that nearby landownersmay also be "persons aggrieved" who mayappeal from a decision concerning land not theirown. In Steers Sand & Gravel Corp. v. Brunn88

nearby residents whose property stood to bematerially depreciated in value were held to be"persons aggrieved" , nearby homeowners were89

found by the court to be "persons aggrieved" by

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an application for a permit to build a parkinggarage because their streets might have beenused by overflow parkers when the garage wasfilled. Nearby tenants may also be aggrievedpersons if the contested uses "devaluate livingconditions." The decision in Matter of Horan90

v. Board of Appeals held that "persons91

aggrieved" for purposes of appeals to a zoningboard of appeals must be liberally construed,and need not stop at adjoining landowners. Thecourt said:

“‘Neighboring owners’,‘nearby residents’,as well as ‘closely adjacent owners’ havethe status of ‘persons aggrieved' within thespirit and intent of section 179-b of theVillage Law [now, section 7-712-a(4)]insofar as it refers to the taking of an appealto the Board of Zoning Appeals from ‘anyorder, requirement, decision ordetermination made by an administrativeofficial charged with the enforcement of anyordinance adopted' pursuant to the VillageLaw. The spirit and intent of zoning,combined with justice itself, requires thatunder section 179-b of the Village Law thebroadest possible interpretation should begiven to the words ‘ such appeal may betaken by any person aggrieved, or by anofficer, department, board or bureau of thevillage’."

Neighborhood associations may, in certaininstances, have standing as aggrieved party.92

Although the rule is liberal, there is a limit. InBlumberg v. Hill , residents of a town who93

lived one and one half miles from a proposedguest house were held not to be personsaggrieved. The court found no special effectsof the guest house on the property of thechallengers, and stated that the fact that they"particularly advocate zoning principles andstand for the . . . enforcement of zoningordinances" was of no relevance. The court

placed on the term "persons aggrieved" therequirement that there be some special injury ordamage to their personal or property rights.And in Village of Russell Gardens v. Board ofZoning and Appeals , the court stated that even94

close proximity to the property involved in avariance proceeding was insufficient to make aperson aggrieved, unless there were someshowing of detrimental effect on the property ofthose contesting a variance. In addition, oneproperty owner whose land was nearby, but inan adjoining village, was held to be incapable ofan "aggrieved" status simply because the landwas in another municipality. The court alsoapplied this reasoning to the adjoining villageitself, saying that it had no standing whatever tochallenge a variance granted by an adjacenttown. In another case on this same point,Matter of Wood v. Freeman , property owners95

whose land was located in the town were heldnot to be aggrieved for purposes of challenginga village board of appeals action, even thoughthe land for which the variance was granted wasadjacent to theirs. The neighbor's land was overthe village line.

Often, a competitor may wish to challenge aproposed action by the zoning board of appeals.Unless she/he can prove some element ofdamage aside from an increase in competition,she/he will not be an aggrieved person. In96

Cord Meyer Development Co. v. Bell BayDrugs, Inc. , the Court of Appeals held that a97

pharmacist located in a commercial zone couldnot enjoin another pharmacist -- a competitor --located in a residential zone. The court said:

"If the value of the plaintiffs' real propertyhad been reduced, without regard tobusiness competition, for example, by theoperation nearby of a junkyard or slaughterhouse, it might well be that this wouldconstitute such special damage as wouldentitle plaintiffs to injunctive relief. Even ifthe violator of the ordinance were

24

conducting a similar business, it may wellbe, although we are not called upon todecide, that plaintiffs would be entitled tosue to restrain the violation if they couldprove that the value of their property wasdecreased due to some offensive manner inwhich the business was conducted withoutrelation to any competitive aspect."

The same result was reached in the Sun-Britecase, cited above. The rule, then, appears to bethat the fact an aggrieved party is a competitoris irrelevant to his being "aggrieved."

Can the municipality be aggrieved by the actionof its own zoning enforcement officer? Thestatute permits an appeal to the zoning board ofappeals by any officer, department, board orbureau of the municipality. While there are fewreported cases in which such an appeal has beentaken, the statute is quite clear and is infurtherance of the theory that a municipalitywould always be "aggrieved" by administrationof its zoning law. 98

In Matter of Marshall v. Quinones , the99

petitioner brought an Article 78 proceeding toreview the grant of a variance. The petitionerwas a city alderman who had been authorized,by resolution of the City Common Council, tochallenge the zoning board of appeals. Thecourt concluded that the alderman hadstatutorily provided standing under section82(1) of the General City Law, both in his ownright as an officer of the city, and on behalf ofthe Common Council.100

As general rule, any person whose legal rightsor interests or property would be detrimentallyaffected by an action taken by the buildinginspector or zoning enforcement officer isproperly an "aggrieved person," no matter howdistant his/her property may be, as long as it iswithin the municipality affected.

What happens when someone who is not a"person aggrieved" tries to appeal to the zoningboard of appeals? The board has two choices -it can disregard any objection and let himappeal, or it can hold a hearing to determinewhether he is a person aggrieved.

In Edward A. Lashins, Inc. v. Griffin , a board101

of appeals had followed the first course ofaction. It had assumed jurisdiction over anappeal presented to it. A building permit hadbeen granted, and an adjacent property ownerappealed to the zoning board of appeals. Theholder of the permit complained to the boardthat the property owner was not a "personaggrieved." The board of appeals, however,went on to consider the appeal on its meritsanyway. The court approved, saying thedetermination of the board of appeals toentertain the appeal would not be interferedwith unless shown to be arbitrary orunreasonable.

The rule apparently applies otherwise when aperson who wants to appeal is determined bythe board not to be a "person aggrieved." TheHoran case, supra, concerned an appeal bypersons living within 500 feet of premises forwhich a building permit had been issued. Theywished to appeal the issuance of the permit.The board of appeals had asked for writtenevidence from these persons that would showthey were "persons aggrieved." The requestedevidence had been submitted, but no hearingwas accorded the claimants; the board simplydecided against the appellants. The court heldthis to be improper. It stated that the board'sdetermination, without a hearing, was arbitraryand without legal basis.

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How an appeal is taken to the

board

The statutes require all determinations of thezoning enforcement officer to be filed in his orher office within five business days of the day itis rendered. Alternatively, the governing boardmay adopt a resolution providing that suchfiling must instead be done in the municipalclerk’s office. The statutes further require thatany appeal to the board of appeals must betaken within 60 days after the filing of thedetermination.102

In cases which arose under the former statutesrequiring the board of appeals to establish byrule a time for taking an appeal, there areindications that the courts may permit appealsbeyond that time if the person appealing objectswithin a reasonable time after the decision. Theleading case is Pansa v. Damiano, supra, whichinvolved a rule requiring appeals to the zoningboard of appeals within 30 days of the decision.The appellant in that case objected to theissuance of a building permit for land adjacentto his. He participated in several meetings withthe permit holder, the city planning board andthe corporation counsel - all within the 30 daylimit. At the last such meeting, he was advisedthat he would be informed of the decision onthe matter. He was informed after the 30 dayshad expired. He then attempted to appeal to thezoning board of appeals to object to the permit.The board dismissed his appeal as untimely.The Court of Appeals reversed the decision,stating that to strictly interpret the 30-dayrequirement might in some situations bereasonable, but that on the facts outlined, it wasnot. The court stated:

"Strictly applied, it might prevent anyappeal at all since the neighbors might notlearn till long afterward of the issuance of abuilding permit. As applied to an applicantdenied a permit the proposed construction

might be fair and sensible. But one whodemands revocation of a permit issued toanother is in no position to appeal or at leastshould not be required to take his appealuntil his demand for revocation has beenrejected with some formality and finality. Itis the duty of the courts to construe statutesreasonably and so as not to deprive citizensof important rights."

The 30 days in this fact situation, the court said,would not begin until the petitioner's objectionshad been overruled in a "decision" of which hehad notice. The objections, of course, wouldstill have to be put forth in a reasonable time.

In Farina v. Zoning Board of Appeals of theCity of New Rochelle , the petitioners filed an103

appeal of the City’s issuance of a buildingpermit to a neighboring property owner. Theyfiled the appeal within a month of receivingnotice that their neighbors had commenceddevelopment on the lot in question, but morethan 60 days beyond the issuance of the permit.The Appellate Division ruled that theneighbor’s appeal was timely. Citing the Pansadecision, the court stated:

“It is settled law, however, that where aparty seeks revocation of a building permitissued to another, the prescriptive periodshould be computed from the date suchparty received notice that his objections tothe permit had been overruled [citeomitted]. We find that the petitioners in thiscase are not chargeable with knowledge ofthe issuance of the building permit untilMarch 2000. Thus, the appeal of theissuance of the building permit, taken onMarch 27, 2000, was timely . . .”

Both the Pansa and the Farina cases involvedsituations where the building inspector hadgiven a written decision issuing a permit. Bothcases spoke of the rights of an aggrieved person

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to appeal the issuance of a permit. But whatabout the other side of the coin - the person whoapplies for a permit and is refused? We havealready seen that the time specified for appealwill be strictly construed against that person.But often a denial of the permit will not be inthe form of a formal, written decision. Whatdoes one do, then, about appealing such a"nondecision" to a zoning board of appeals? Inthe case of Hunter v. Board of Appeals a104

building inspector told an applicant for abuilding permit that he could not issue a permitwithout a variance. The court found thissufficient to constitute a decision from which anappeal could be taken.

An appeal must be initiated in the mannerprescribed by statute, that is:

"by filing with [the officer from whom theappeal is taken] and with the board ofappeals a notice of appeal, specifying thegrounds thereof and the relief sought. Theadministrative official from whom theappeal is taken shall forthwith transmit tothe board of appeals all the papersconstituting the record upon which theaction appealed from was taken

General City Law, section 81-a(5); Town Law,section 267-a(5)and Village Law, section 7-712(5) are similar.

At least one court in New York has interpretedthis requirement liberally. In the case of Matterof Lapham v. Roulan , the city superintendent105

of buildings rejected an application for abuilding permit, and then presented thisapplication to the zoning board of appeals,which proceeded to entertain the application asan appeal. Although clearly in violation of theletter of the statute, the court upheld thisprocedure. It stated that the object of thestatutory requirement for a notice of appeal tothe officer whose decision is being appealed is

so that he may transmit the record to the boardof appeals. Because this was accomplishedhere by the informal procedure, and becauseneither the superintendent of buildings nor theboard of appeals was prejudiced by theprocedure, or objected to it, the court upheld theinformality. It did note, however, that the localordinance did not require the formal procedure.

Many municipalities supply forms to those whowish to come before the board of appeals.Properly crafted, such forms can serve to guidethe petitioner to state clearly what it is she/hewants. There is at least one case, however,which holds that an applicant need not use theofficial forms for his/her appeal, even if theboard of appeals by-laws require him/her to, aslong as the proceeding and its object arecommunicated to the local officials involved.106

It should be noted that an appeal to the zoningboard of appeals stays all proceedings in thematter appealed from, except in certainemergency situations. General City Law,section 81-a(6) reads as follows:

"An appeal shall stay all proceedings infurtherance of the action appealed from,unless the administrative official chargedwith the enforcement of such ordinance orlocal law, from whom the appeal is taken,certifies to the board of appeals, after thenotice of appeal shall have been filed withthe administrative official, that by reason offacts stated in the certificate a stay would, inhis or her opinion, cause imminent peril tolife or property, in which case proceedingsshall not be stayed otherwise than by arestraining order which may be granted bythe board of appeals or by a court of recordon application, on notice to theadministrative official from whom theappeal is taken and on due cause shown."

27

The Town Law, section 267-a(6) and VillageLaw, section 7-712-a(6) contain provisionswhich are almost identical.

Very few reported cases deal with this statutorylanguage, and those that do are less than clear.In Blum v. O'Connor , the petitioners had filed107

an appeal to the zoning board of appealsbecause of the issuance of a building permit totheir neighbor. The court interpreted the abovestatutory language to mean that the status quowas to be maintained pending the appeal. Itsaid this meant that the issuance of thecontested building permit was stayed. As apractical matter, this would mean that anyconstruction under the stayed permit wouldviolate the zoning law. And that would meanthat the usual legal remedies for enforcing thezoning law would be available.

Consistent holdings are found in Linder v.Village of Freeport . In Linder, a permit had108

been issued, but the building inspector revokedit some time later, claiming that it had beenissued in error. The plaintiff permit holderappealed the revocation to the zoning board ofappeals and claimed the right to continueconstruction during the appeal. The courtagreed, saying that what was stayed was therevocation of a permit, since the appeal resultedfrom the revocation.

In Brunschwig, a permit had been issued, andthe petitioners asked the zoning enforcementofficer to revoke it; he refused. The petitionersappealed to the zoning board of appeals overthe refusal of their request. The court held thatno stay of construction was available.

Clearly, these cases are consistent ininterpreting a "stay" to mean a return to thestatus quo as it was before the action appealedwas taken. This being so, it is not possible toflatly say that construction under a permit willbe allowed to proceed during an appeal. It

might be allowed to proceed. It depends onwhat action is appealed. If it is the issuance ofthe building permit, then the appeal requires areturn to the status quo before the permit wasissued. Construction under such circumstancescould well violate the zoning ordinance. If theappeal is over revocation of a permit, a return tothe status quo before the revocation could meanthat construction may continue.

While the interpretation above appears rational,there is one aberration in the cases, Barnathanv. Garden City Park Water Dist. That case109

held that the taking of an appeal against theissuance of a building permit by abuttingproperty owners did not operate as a stay ofconstruction under the statute. No rationale wasgiven for this conclusion, because the case wasa memorandum decision. Unless the courtmeant that the statute does not automaticallyrequire a stay of construction in an appeal to azoning board of appeals, there is no way toreconcile this case with the reasoning of thelower courts.

We note that the statutes apply the stay against“all proceedings in furtherance of the actionappealed from.” In a recent case, the court heldthat the stay applies to the issuance of anappearance ticket as well as to administrativeenforcement actions such as the issuance of anotice of violation. In People v. Bell Atlantic ,110

the court held:

“The purpose of the stay is to obtain adefinitive ruling from the Zoning Board ofAppeals before moving to a judicialdetermination. If, for instance, without astay, a jury were to find Bell Atlantic guiltyof the alleged violations, the Zoning Boardof Appeals could later find Bell Atlantic incompliance, thus, in effect, reversing thejury’s decision. The Village should firstawait the exhaustion of administrativeinterpretations and then proceed with its

28

case in this Court if the Zoning Board ofAppeals sustains the Village’s position.”

Referral to a planning agency A board of appeals will often find itself in theposition of having to refer certain matterselsewhere for recommendation before makinga final decision. General Municipal Law,section 239-m requires that in any city, town orvillage located in a county which has a countyplanning agency, or within the jurisdiction of ametropolitan or regional planning council, anyboard charged with taking certain zoning orplanning actions shall – before taking suchaction – refer them to that county, metropolitanor regional planning agency or council.General City Law, section 81-a(10), Town Law,section 267-a(10) and Village Law, section 7-712-a(10) all require that such referral mustoccur at least five days prior to the board ofappeals’ public hearing on the proposed action.

The matters covered by this section include anyvariance, site plan or special use permitapplying to real property lying within a distanceof 500 feet of the boundary of a city, town orvillage, or from the boundary of any existing orproposed county or state park, or from the right-of-way of any existing or proposed county orstate parkway or thruway, expressway orhighway, or from the existing or proposed right-of-way of any stream or drainage channelowned by the county, or from county- or state-owned land on which a public building orinstitution is located, or (except for areavariances) from the boundary of a farmoperation located in an agricultural district, asdefined by Article 25-AA of the Agricultureand Markets Law. (Also covered are zoningregulations or amendments which would changethe district classification of real property withinsuch a 500-foot distance.) Matters which onlyrequire an interpretation of the local zoning law

are, however, exempted from such referral.

The referring body and the county (or regional)agency may agree that certain matters are oflocal concern only and need not be referred tothe planning agency.111

The referral requirement is mandatory. InWeinstein v. Nicosia , the court held that a112

board of appeals’ failure to follow theprovisions of section 239-m creates ajurisdictional defect, because its provisions area pre- condition to the acquiring of jurisdiction.The board’s failure to follow them thereforerenders its decision void. Another casereaching the same conclusion is Asthma v.Curcione , which involved the issuance by a113

zoning board of appeals of a special permit.

The county, metropolitan or regional planningagency has 30 days to report itsrecommendation. In the event the planningagency fails to do so, the board of appeals mayact without such a report. If the planningagency recommends disapproval ormodification, the board of appeals can only actcontrary to the recommendation by a vote of amajority plus one of all of its members (notmerely of members present) and after theadoption of a resolution fully setting forth thereasons for the contrary action. Failure tocomply with the voting requirements in section239-m could render the local decision invalid ifchallenged in court.

Within seven days after any such final action bythe board of appeals, it must file a report of thefinal action it has taken with the county,metropolitan or regional planning agency.

Environmental quality review

Any appeal to a board of appeals will require a

29

decision that constitutes an exercise ofdiscretion by the board, thereby invokingapplication of the State Environmental QualityReview Act, better known as “SEQRA”(Environmental Conservation Law, Article 8)and its implementing regulations, which arefound in Title 6, New York Code of Rules andRegulations, Part 617.

If the board of appeals is the lead agency, thefirst SEQRA decision it will have to make,based on review of the EnvironmentalAssessment Form (EAF) is whether to classifythe matter before it as a Type I, Type II, orUnlisted action under SEQRA. To guide itsdecision the board should refer to the lists ofactions found in Part 617. Some decisionsappear on a predetermined list of types ofactions, called Type II Actions, which havealready been determined not to have asignificant adverse impact on the environment.If the board finds that the matter is Type II, itshould document that finding, whereupon itsSEQRA function is complete.

It should be noted that certain matters thatcommonly come before a board of appeals arelisted as Type II. Among these areinterpretations of the zoning regulations, as wellas the granting of all setback and lot-linevariances, and all area variances for one-, two-, and three-family residences.

While there are several other actions on theType II list that may often come before a boardof appeals, many matters, including most usevariances, will probably be either Type I orUnlisted Actions, thus requiring the board ofappeals to make a “determination ofSignificance” (i.e., a decision whether or not torequire an environmental impact statement, orEIS).

With respect to use variance applications, thereis an overlap between the statutory criteria for

granting the variance, on the one hand, and thecriteria under Part 617 for determining whetherto require an EIS. For example, to be granted ause variance the applicant must show, amongother factors, that the variance, if granted, willnot alter the essential character of theneighborhood. Moreover, in granting the usevariance the municipality is directed to preserveand protect the character of the neighborhoodand the health, safety and welfare of thecommunity.

Closely akin to the above factors, SEQRArequires the board (if lead agency) to considercommunity character and aesthetics in makingits Determination of Significance. Even wherethe board decides not to require an EIS – it hasissued a “negative determination” – it mustnonetheless apply these same factors in its laterreview of the merits of the application.

But if the board decides to require an EIS basedin part on the potential impact on neighborhoodcharacter, then it will inevitably perform athorough review of this issue within the EISprocess. This should shorten and expedite theboard’s eventual review of this same factorduring its later application of the statutoryvariance criteria.

Another practical problem is the potential forredundant SEQRA reviews where, once the usevariance is granted, the board of appeals mustalso issue a special use permit. This subsequentreview often requires SEQRA review in itself.Thus, there may result needless repetition of thesame SEQRA issues that were addressed duringthe variance application. To avoid suchrepetition, the board should perform SEQRAreview of the entire potential project at an initialstage, and then apply that review to anysubsequent permits or approvals that arenecessary.

30

Time and notice for the board's

hearing

All three statutes require a hearing before aboard of appeals may grant a variance or rule onan appeal or decide any other matter referred toit under the ordinance or local law. The114

reference to "any other matter" means that, forexample, if the board is delegated the power toreview and approve site plans, the board musthold a hearing before rendering its decision,even though the site plan statutes themselves donot require a hearing.

The notice requirements for a hearing will beconsidered below. But there is anotherimportant procedural detail – the requirementthat a board fix "a reasonable time" for thehearing. This means that after an appeal istaken to the board, or an application issubmitted for any other approval it has power togrant, the board of appeals must fix a date in thereasonable future for the required hearing. Inthe case of Blum v. Zoning Board of Appeals ,115

this statutory requirement was held to mean thatthe board of appeals as a body must fix thehearing date. Because no formal action of theboard set the date for the hearing, the variancewhich was granted was invalidated. The lessonis that courts will construe this requirementstrictly. The board should adopt a formalresolution fixing the date for the hearing on anymatter coming before it. Once that is done, thenotice of the hearing can be given.

Notice of the hearing is also required by thestatutes, and this requires particular caution.Notice of the public hearing must be timely,clear and directed to the proper persons.

The statutes also require at least five days'notice of the public hearing to be provided tothe parties, to the county, metropolitan orregional planning agency pursuant to General

Municipal Law, section 239-m (see above) andto the regional state park commission havingjurisdiction over any state park or parkwaywithin five hundred feet of the property affectedby the appeal.116

A new statute requires zoning boards ofappeals, when holding a hearing on the grantingof a use variance on property that is within fivehundred feet of an adjacent municipality, togive notice to the clerk of the adjacentmunicipality at least ten days prior to thehearing. The notice may be given by mail or byelectronic transmission . Representatives fromthe adjacent municipality may appear at thehearing and be heard. 117

Publication of notice is also required, in anewspaper of general circulation at least fivedays before the hearing.118

Generally, courts are strict about interpretingthese notice requirements. In the case ofBriscoe v. Bruenn , a village ordinance119

required 10 days' notice of zoning board ofappeals hearings. The court invalidated avariance which had been granted after a publichearing which was preceded by seven days'notice; it stated that the requirement wasjurisdictional, and failure to give the requirednotice rendered the board of appeals powerlessto proceed.

There are, however, cases when courts havemade efforts to rationalize late notice,especially if the parties appear and do not claimto be hurt by it. In Gerling v. Board ofAppeals , the newspaper containing the notice120

of the public hearing on a variance bore a datefour days in advance of the hearing. However,the court found that the paper was actuallydistributed to newsstands for sale to the publicthe previous afternoon, and found the five-daystatutory requirement had been met. Thisholding would have disposed of the matter, but

31

the court went on to say that a defect in the timeof publication of notice was not jurisdictionaland was waived by appearance and participationof the petitioners at the hearing.

Thus, we have two cases, one which says thetime of notice requirement is jurisdictional andone which says it isn't. Obviously, the safestcourse to follow is to assume that it isjurisdictional and to rigidly adhere to the timeperiod required.

What should the notice of the hearing say?While there is no statutory form for it, it shouldbe clear and unambiguous enough so that thegeneral public will know what property isaffected by the board's action and what thenature of the hearing will be. Obviously, thenotice must also state time and place for thehearing.

Conduct of the hearing

The purpose of the hearing is to determine thefacts involved in the application. Variancesmay be granted only under certaincircumstances, and special use permits may begranted if the requirements of the zoning laware met. The purpose of the hearing is todetermine whether the applicant is entitled towhat he or she is asking for.

While courts generally approve informalhearings, they will not approve a conclusion ora decision for which no evidence appears on arecord. In the case of Galvin v. Murphy , the121

court, while not disapproving informality, didsay that the hearing should be adequate and thatall interested persons should be given anopportunity to be heard. Not only was theexpression of views by opponents of the specialuse permit discouraged in the hearing of thatcase, but there was no evidence shown in arecord which would support the board of

appeals' determination. The matter wasremanded for a new hearing. Without a properrecord and evidence to support a board ofappeals determination, courts will order a newhearing; in fact, the court may very well usewords such as "arbitrary" and "capricious" todescribe the faulty board's action beingappealed. The important point to remember isthat the hearing should concern itself withevidence. This is because courts must haveenough information before them to make areasoned determination in case of appeals.Kenyon v. Quinones reaffirms this outlook.122

Despite allowing "the greatest amount oflatitude in the admission of informal proof," therecord still did not substantiate the findings ofthe board.

What about personal knowledge of the area?Board of appeals members are often people whoknow the community well, and thus cannotreally act in the fashion of totally detachedpersons. Several decisions hold that it ispermissible to use personal knowledge as"evidence" to support a board decision, but itmust be written down as part of the record. If itis not, and a court finds that it was relied on, itmay declare the board's action invalid. The123

same rule applies to personal inspections of thepremises by board members; a personalinspection is perfectly all right, but if somethinglearned in such an inspection is relied upon, itshould be included in the record.

Planning board information, reports andrecommendations may also be considered bythe board of appeals. Indeed, as a practicalmatter, they should be evidence of someimportance, but they are not determinative.The board of appeals is not bound to followadvice it may receive from a planning board orany other municipal agency. It is the functionof the board of zoning appeals to listen to andconsider all evidence that may bear upon theissue it is deciding.

32

Cross-examination of witnesses at board ofappeals hearings may be done by the boarditself, and the parties also have this right. Thenature of a board of appeals hearing is such thatthe right to cross-examination should be limitedto relevant points; it is all too easy to permit ahearing to get out of hand and degenerate intoa name-calling recrimination session. A leadingauthority has noted:

". . . [I]n some jurisdictions, the board isunder a duty to permit relevant cross-examination on material issues. Membersof a zoning board, at least in smallcommunities, are usually neighbors ofparties interested in one side or the other. Anatural reluctance to alienate segments ofthe community renders the decision evenmore difficult . . .

"It takes an experienced, firm and wisechairman to steer the hearing betweenScylla of an unfair hearing of one kind andthe Charibdis of an unfair hearing of theopposite kind." 124

Although the board of appeals is a “quasi-judicial body,” it is nonetheless subject to thestate’s Open Meetings Law (Public OfficersLaw, Article 7). All meetings of the board ofappeals must, therefore, be open to the public.This requirement of openness will almostalways include all of the board’s discussionsand votes.125

This brings up the touchy point of the so-called"executive session" - a closed meeting of theboard of appeals. As noted above, the statutesrequire zoning board of appeals meetings to beopen to the public in accordance with the OpenMeetings Law. Under the Open Meetings Law,executive sessions may be held only to conductcertain limited types of business . Otherwise,126

they must be open to the public. As applied127

to boards of appeals proceedings, this means

that no evidence should be received, nowitnesses heard, and no decision taken except ata meeting open to the public.

Two other points relate to the conduct ofhearings. First, witnesses need not be sworn inas they are in a court. Second, although a128

factual record of the testimony is of majorimportance, it need not be a verbatim transcript.It may instead be in narrative form.129

The Decision

Sooner or later, of course, the board will have torender its decision. The statutes now uniformlyprovide that, the board has 62 days from theconclusion of the hearing on the matter torender its decision. This period may,130

however, be extended by mutual consent of theapplicant and the board of appeals. The statutesalso require that the board of appeals keepminutes of its meetings, showing the vote ofeach member on every question, and, if absentor failing to vote, showing those facts. 131

The principles which form the basis of theboard of appeals’ decision are found in thecriteria, discussed above, for makinginterpretations or for the granting of use or areavariances. Where the decision instead involvesan exercise of original jurisdiction, theprinciples will be found in the standards ofreview contained in the local special use permit,site plan, or other provisions under which theapplication has been made.

However the board arrives at its decision, thedecision itself must be supported by findingswhich constitute “substantial evidence.” In132

other words, findings of fact and/or testimonymust be placed on the record which adequatelysupport the decision. It is no exaggeration tosay that everything a board of appeals decides isa potential lawsuit. Board of appeals actions

33

are one of the most litigated fields of law. Inthe event of court review, there will have to bea record, with findings, to enable the court todetermine whether the decision was supportedby substantial evidence on the record. Thereare many cases in which the entire matter wasremanded to the board of appeals for aredetermination because of an inadequaterecord; or, even where an adequate record ofevidence existed, because there was nostatement of the findings of fact whichsupported the final decision.

In the case of Gill v. O'Neil , a zoning board133

of appeals granted a variance merely byadopting a resolution. No factual findings weremade, nor was a reason for its action given.The court stated that the absence of findingsprevented an intelligent review of the board'sdetermination, and sent back the matter forreconsideration and proper findings.

A decision, of course, would be wordedsomething like “stop-work order affirmed,”"variance granted" or "special use permit denied."Findings would have to contain reasons for thedecision. But a mere restatement of the statutoryor ordinance requirements will not constitutefindings sufficient for court review. Thus, whena board of appeals granted a variance andsupported its decision with "findings" that"adequate parking facilities were available withincertain specified distances from the site" and "ifthe variance were denied it would involve greatpractical difficulties and unnecessary hardship"the court in Gilbert v. Stevens found these werenot sufficient. The court wanted to know why134

these requirements had been satisfied, and notonly that they had been satisfied. The court said:

"Findings of fact which show the actualgrounds of a decision are necessary for anintelligent judicial review of a quasi-judicialor administrative determination . . . Thereis nothing in the record upon which to base

a determination that adequate and existingparking areas are available . . ."135

What were really stated in the Gilbert case werethe conclusions of the board of appeals. Theseare perfectly all right as long as the decisionalso includes findings of fact - from theevidence which appears on the record - tosupport its conclusions. The evidence reliedupon should be specifically stated.

In a use variance case, for example, the findingsof fact may well focus on whether or not theapplicant has presented sufficient “dollars andcents” proof of his hardship. (See thediscussion of use variances, supra.)

As was stated above in the context ofinterpretations, the courts have held that a boardof appeals should follow its own prior precedent.How does this work when the matter insteadinvolves a variance, special use permit, or otherform of project approval? Does it mean that if theboard grants a variance to one owner to, say, builda hardware store in a residentially-zoned district,that it must thereafter grant similar permission toany other owner in that district who asks for thesame relief? No, it does not mean that at all.Unlike interpretations, where the only questioninvolves the uniform application of the words ofthe zoning law, variances and use permits insteadconcern the appropriateness of project proposalson particular parcels of land, each having theirown unique characteristics. Thus, the facts ofeach case will differ from those of all others. Theimpact of the holding in Knight v. Amelkin, supra,as applied to variances and special use permits,should be such that the board apply a generallyconsistent approach to its consideration of thestandards as they apply to the facts of each case,not that all results will be identical. Where the board of appeals is exercisingoriginal jurisdiction (for example, on approvinga special use permit), the final decision must be

34

supported by an affirmative vote of a majorityof the members of the board. Thus, a simple136

majority of those voting on the question won'tsuffice. For example, if there is a five-memberboard, three must agree in order to reach adecision; a vote of two out of three memberspresent is not sufficient. This requirementapplies both to approvals and disapprovals: anabsolute majority must favor the action taken.

Where the matter instead involves an appeal,the rule is different, as governed by a revision tothe statutes that took effect in 2003. The StateLegislature made this revision in response to thedecision of the Court of Appeals in Tall TreesConstruction Corp. v. Zoning Board of Appealsof the Town of Huntington. The statutes137 138

now uniformly provide that an affirmative voteof a majority of the full membership of theboard of appeals--counting vacancies, absencesand abstentions--is necessary on a motion toreverse a determination of the enforcementofficer or to grant a variance.

What if the board, upon conclusion of theoriginal hearing of an appeal, conducts a votethat fails to result in a majority in favor ofgranting the applicant the relief requested? Thiswill of course result in a default denial. But thestatutes also provide that the board may amendthe failed motion and vote on the amendment,within the 62-day period after the close of thepublic hearing. This will not require the boardto follow the statutory rehearing process,described below.139

Rehearing

The statutes provide for the rehearing of a140

matter upon which the board of appeals hasonce made a decision. The rehearing may onlyoccur following the unanimous vote of thosemembers present. Where such a unanimousvote occurs, the board would then rehear the

case in its entirety and make a new decision. Inorder to effectively change its original decision,another unanimous vote of those members thenpresent is required. In addition (and regardlessof a unanimous concurring vote), no newdecision of the board may be made if the boardfinds that it would prejudice the rights of anypersons who acted in good faith reliance on theoriginal decision.

Filing the Decision

The statutes provide that every rule,141

regulation, every amendment or repeal thereofand every order, requirement, decision, ordetermination of the board shall be filed in theoffice of the municipal clerk within fivebusiness days after the day it is rendered (a copymust also be mailed to the applicant). Thesefiling requirements are of major importance asa practical matter, because the 30-day period toappeal a board of appeals decision to the courtsbegins to run from the date of the filing of theboard's decision.142

Conclusion

Too often, the procedure by and before thezoning board of appeals is informal to a pointwhere its actions may be invalid. Proceduralmatters are inherently dull. But there is areason for them - and courts will uphold them.Informality is fine, up to a point, but board ofappeals actions affect the property rights ofindividuals, and the procedural requirements ofthe statutes are meant to protect these rights aswell as the welfare of the community. It ishoped that the procedures noted herein, as wellas the substantive rules governing bothinterpretations and variances, will be ofassistance to boards of appeals throughout theState of New York.

35

1. Salkin, New York Zoning Law and Practice, 4 Ed., §27.08. th

2. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

3. People v. Kerner, 125 Misc. 526, 533 (Sup. Ct., Oneida Co., 1925.

4. Otto v. Steinhilber, 282 N.Y. 71 (1939).

5. People v. Walsh, 244 N.Y. 280, 290 (1927).

6. General City Law, section 81(1), Town Law, section 267(2) and Village Law, section7-712(2).

7. Town Law, section 267(7));General City Law, section 81.

8. General City Law, section 81(4); Town Law, section 267(5); Village Law, section 7-712(5).

9. General City Law, section 81(1).

10. Town Law, section 267(2).

11. Village Law, section 7-712(2).

12. General City Law, section 81(2), Town Law, section 267(3), and Village Law, section7-712(3).

13. General City Law section 81(11), Town Law section 267(11), Village Law section 7-712(11).

14. See Op. Atty. Gen. (Inf.) No. 86-20.

15. General City Law section 81(1), Town Law section 267(2), Village Law section 7-712(2).

16. Kaufman v. City of Glen Cove, 180 Misc. 349 (Sup. Ct., Nassau Co., 1943), aff’d 266A.D. 870 (2d Dept., 1943).

17. See Kaufman, supra.

18. Scott v. Quittmeyer, 200 N.Y.S.2d 886 (Sup. Ct., Nassau Co., 1960); Balsam v.Jagger, 231 N.Y.S.2d 450 (Sup. Ct., Suffolk Co., 1962); Plotinsky v. Gardner, 27Misc.2d 681 (Sup. Ct., Westchester Co., 1960); Von Elm v. Zoning Board of Appealsof Incorporated Village of Hempstead, 258 A.D. 989 (2 Dept., 1940).nd

ENDNOTES

36

19. General City Law sections 27-a(3), 27-b(3) and 33(6); Town Law sections 274-a(3),274-b(3) and 277(6); Village Law sections 7-725-a(3), 7-725-b(3) and 7-730(6).

20. See Cerame v. Town of Perinton, 6 A.D. 3d 1091 (4 Dept., 2004).th

21. General City Law section 81-b(2), Town Law section 267-b(1), and Village Lawsection 7-712-b(1).

22. Schmitt v. Plonski, 215 N.Y.S.2d 170 (Sup. Ct., Suffolk Co., 1961).

23. Levy v. Board of Standards and Appeals, 267 N.Y. 347 (1935).

24. Op. St. Comptr. 65-770.

25. Cherry v. Brumbaugh, 255 A.D. 880 (2 Dept., 1938).nd

26. See Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003),discussed at length infra.

27. General City Law section 81-a(4), Town Law section 267-a(4), and Village Lawsection 7-712-a(4).

28. General City Law section 81-b(2), Town Law section 267-b(1), and Village Law, section7-712-b(1).

29. See Kaufman, supra.

30. Hinna v. Board of Appeals, 11 Misc.2d 349 (Sup. Ct., Nassau Co., 1957).

31. Matter of Levine v. Buxenbaum, 19 Misc.2d 504 (Sup. Ct., Nassau Co., 1959).

32. Anagnos v. Lesica, 134 A.D.2d 425 (2 Dept., 1987).nd

33. Pansa v. Damiano, 14 N.Y.2d 356 (1964).

34. See Knight v. Amelkin, 68 N.Y.2d 975 (1986).

35. See Androme Leather v. City of Gloversville, 1 A.D.3d 654 (3 Dept., 2003).rd

36. See St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721 (1988).

37. Salkin, supra, §29.05.

38. General City Law section 81(b)(1)(a), Town Law section 267(1), and Village Lawsection 7-712(1).

39. See Otto v. Steinhilber, supra.

37

40. General City Law, section 81-b(3)(b), Town Law, section 267-b(2)(b) and Village Law,section 7-712-b(2)(b).

41. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Lawsection 7-712-b(2)(b).

42. Crossroads Recreation v. Broz, 4 N.Y.2d 39 (1958).

43. Goldstein v. Board of Appeals of Oyster Bay, 102 N.Y.S.2d 922 (Sup. Ct., NassauCo., 1951).

44. Rochester Transit Corp. v. Crowley, 205 Misc. 933 (Sup. Ct., Monroe Co., 1954),citing Young Women's Hebrew Association v. Board of Standards and Appeals ,supra; Thomas v. Board of Standards and Appeals of City of New York, 290 N.Y. 109(1943).

45. Everhart v. Johnston, 30 A.D.2d 608 (3 Dept., 1968).rd

46. Fayetteville v. Jarrold, 53 N.Y.2d 254 (1981).

47. Crossroads Recreation v. Broz, 44).

48. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Lawsection 7-712-b(2)(b).

49. Rathkopf, The Law of Zoning and Planning, §58:11.

50. Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222 (1938).

51. Hickox v. Griffin, 298 N.Y. 365 (1949).

52. Douglaston Civic Association, Inc. v. Klein, 51 N.Y.2d 963 (1980).

53. Congregation Beth El of Rochester v. Crowley, 30 Misc.2d 90, 217 N.Y.S.2d 937 (Sup.Ct., Monroe Co., 1961).

54. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Lawsection 7-712-b(2)(b).

55. Holy Sepulchre Cemetery ,271 A.D. 33 (4 Dept., 1946).th

56. Rochester Transit Corp. v. Crowley, supra.

57. Matter of Style Rite Homes, Inc. v. Zoning Board of Appeals of the Town of Chili, 54Misc.2d 866 (Sup. Ct., Monroe Co., 1967).

58. See Congregation Beth El of Rochester v. Crowley, supra.

38

59. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Law,section 7-712-b(2)(b).

60. Carriage Works Enterprises, Ltd. v. Siegel, 118 A.D.2d 568, 499 N.Y.S.2d 439 (2nd

Dept., 1986).

61. Clark v. Board of Zoning Appeals, 301 N.Y. 86 (1950).

62. For similar holdings see Holy Sepulchre Cemetery v. Board of Appeals, supra; Thomasv. Board of Standards and Appeals supra; Everhart v. Johnston, supra; Henry Steers,Inc. v. Rembaugh, 284 N.Y. 621 (1940).

63. General City Law section 81-b(1)(b), Town Law section 267(1)(b), and Village Lawsection 7-712(1)(b).

64. General City Law section 81-b(4), Town Law section 267-b(3), Village Law section 7-712-b(3).

65. Pecoraro v. Board of Appeals of the Town of Hempstead, 2 N.Y.3d 608, 781 N.Y.S.2d234 (2004).

66. See Chandler Property, Inc. v. Trotta, 9 A.D.3d 408, 780 N.Y.S.2d 163 (2 Dept.,nd

2004).

67. Heitzman v. Town of Lake George Zoning Board of Appeals, 309 A.D.2d 1126, 766N.Y.S.2d 452 (3 Dept., 2003).rd

68. See Coco v. City of Rochester Zoning Board of Appeals, 236 A.D.2d 826, 653N.Y.S.2d 769 (4 Dept., 1997).th

69. See Casey v. Goehringer, N.Y.L.J., March 27, 2002 (Sup. Ct., Suffolk Co., 2002).

70. See Casey, supra.

71. Sasso v. Osgood, 86 N.Y.2d 395 (1995).

72. Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003).

73. General City Law section 81-b(3)(c) and (4)(c), Town Law section 267-b(3)(c), andVillage Law section 7-712-b(3)(c).

74. Nardone v. Zoning Board of Appeals of the Town of Lloyd, 144 A.D.2d 807, 534N.Y.S.2d 771 (3 Dept., 1988).rd

75. General City Law section 81-b(5), Town Law section 267-b(4), and Village Lawsection 7-712-b(4).

39

76. See Hopkins v. Board of Appeals of City of Rochester, 179 Misc. 325, 39 N.Y.S.2d167 (Sup. Ct., Monroe Co., 1942).

77. Gordon v. Zoning Board of Appeals of the Town of Clarkstown, 126 Misc.2d 75, 481N.Y.S.2d 275 (Sup. Ct., Rockland Co., 1984).

78. St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721 (1988).

79. Matter of Summit School v. Neugent, 82 A.D.2d 463, 442 N.Y.S.2d 73 (2 Dept.,nd

1981).

80. General City Law section 81-b(2), (3)(a) and (4)(a); Town Law section 267-b(1), (2)(a)and (3)(a); Village Law section 7-712-b(1), (2)(a) and (3)(a).

81. Matter of Hilbert v. Haas, 54 Misc.2d 777 (Sup. Ct., Suffolk Co., 1967).

82. S.S. Kresge Co. v. City of New York, 194 Misc. 645 (Sup. Ct., New York Co., 1949),aff’d 275 A.D. 1036 (1 Dept., 1949).st

83. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of NorthHempstead, 69 N.Y.2d 406 (1987).

84. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of NorthHempstead ,69 N.Y.2d 406, 413-414.

85. Eckerman v. Murdock , 276 A.D. 927 (2 Dept., 1950).nd

86. Henry Norman Associates, Inc. v. Ketler, 16 Misc. 2d 764 (Sup. Ct., Nassau Co.,1959).

87. Slater v. Toohill ,276 A.D. 850 (2 Dept., 1949).nd

88. Steers Sand & Gravel Corp. v. Brunn, 116 N.Y.S.2d 879 (Sup. Ct., Suffolk Co.,1952).

89. See also Mueller v. Anderson, ( 60 Misc. 2d 568 (Sup. Ct., Monroe Co., 1969)). InMatter of Bettman v. Michaelis, 27 Misc.2d 1010 (Sup. Ct., Nassau Co., 1961).

90. Lavere v. Board of Zoning Appeals (39 A.D.2d 639 (4 Dept., 1972), aff’d 33 N.Y.th

2d 873 (1973).

91. Matter of Horan v. Board of Appeals, 6 Misc.2d 571 (Sup. Ct., Westchester Co.,1957).

92. See Douglaston Civic Association, Inc. v. Klein, supra.

93. 119 N.Y.S.2d 855 (Sup. Ct., Westchester Co., 1953).

40

94. Village of Russell Gardens v. Board of Zoning and Appeals, 30 Misc.2d 392 (Sup. Ct.,Nassau Co., 1961).

95. Matter of Wood v. Freeman, 43 Misc.2d 616 (Sup. Ct., Nassau Co., 1964), aff'd 24 A.D.2d 704(2nd Dept., 1965).

96. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of NorthHempstead supra; Paolangeli v. Stevens, 19 A.D.2d 763 (3 Dept., 1963).rd

97. Cord Meyer Development Co. v. Bell Bay Drugs, Inc., 20 N.Y.2d 211 (1967).

98. See Bowman v. Squillace, 74 A.D. 2d 887 (2d Dept., 1980), but see Gaylord DisposalSvce., Inc. v. Zoning Bd. of Appeals, 175 A.D. 2d 543 (3d Dept., 1991), which heldthat a building inspector was not an official “aggrieved” by his own decision.

99. Matter of Marshall v. Quinones, 43 A.D.2d 436 (4 Dept., 1974).th

100. See also Innet v. Liberman, 155 N.Y.S.2d 383 (Sup. Ct., Westchester Co., 1956).

101. Edward A. Lashins, Inc. v. Griffin, 132 N.Y.S.2d 896 (Sup. Ct., Westchester Co.,1954).

102. General City Law, section 81-a(5); Town Law, section 267-a(5); Village Law, section7-712-a(5).

103. Farina v. Zoning Board of Appeals of the City of New Rochelle, 294 A.D. 2d 499 (2dDept., 2002).

104. Hunter v. Board of Appeals, 4 A.D.2d 961 (2 Dept., 1957).nd

105. Matter of Lapham v. Roulan, 10 Misc.2d 152 (Sup. Ct., Ontario Co., 1957).

106. Highway Displays, Inc. v. Zoning Board of Appeals of the Town of Wappinger, 32 A.D.2d 668.

107. Blum v. O'Connor, 6 Misc.2d 641 (Sup. Ct., Nassau Co., 1957).

108. Linder v. Village of Freeport, 61 Misc.2d 667 (Sup. Ct., Nassau Co., 1969), andBrunschwig v. Long Is. R.R. Co., 41 Misc.2d 24 (Sup. Ct., Queens Co., 1963).

109. Barnathan v. Garden City Park. Water Dist., 21 A.D.2d 832, 251 N.Y.S.2d 706 (2nd

Dept., 1964).

110. People v. Bell Atlantic, 183 Misc. 2d 61 (Justice Ct., Vil. of Tuckahoe, 2000).

111. General Municipal Law, section 239-m(3)(c).

41

112. Weinstein v. Nicosia, 32 Misc. 2d 246 (Sup. Ct., Erie Co., 1962), aff'd 18 A.D.2d 881(4 Dept., 1963).th

113. Asthma v. Curcione, 31 A.D.2d 883 (4 Dept., 1969).th

114. General City Law section 81-a(7), Town Law section 267-a(7), and Village Lawsection 7-712-a(7).

115. Blum v. Zoning Board of Appeals, 1 Misc.2d 668 (Sup. Ct., Nassau Co., 1956).

116. General City Law section 81-a(10), Town Law section 267-a(10), and Village Lawsection 7-712-a(10).

117. Chapter 687 of the Laws of 2005, effective July 1, 2006. An “adjacent municipality”is a city, except a city having a population in excess of one million, town or village whichhas a portion of its boundary that is contiguous with another municipality.

118. Town Law section 267-a(7), Village Law section 7-712-a(7), and General City Lawsection 81-a(7), effective July 1, 1994.

119. Briscoe v. Bruenn, 216 N.Y.S.2d 799 (Sup. Ct., Westchester Co., 1961).

120. Gerling v. Board of Appeals, 11 Misc.2d 84 (Sup. Ct., Onondaga Co., 1957).

121. Galvin v. Murphy, 11 A.D.2d 900 (4 Dept., 1960).th

122. Kenyon v. Quinones, 43 A.D.2d 125 (4 Dept., 19730).th

123. Galvin v. Murphy, supra; Community Synagogue v. Bates, 1 N.Y.2d 445 (1956).

124. Rathkopf, supra, §57:65.

125. General City Law section 81-a(1), Town Law section 267-a(1), and Village Law section7-712-a(1).

126. Public Officers Law, section 105.

127. Public Officers Law, section 103(a).

128. VonKohorn v. Morrell, 9 N.Y.2d 27 (1961); People ex rel. Fordham Manor ReformedChurch v. Walsh, supra.

129. Hunter v. Board of Appeals, supra; Kenyon v. Quinones, supra.

130. General City Law section 81-a(8), Town Law section 267-a(8), and Village Lawsection 7-712-a(8).

42

131. General City Law section 81-a(1), Town Law section 267-a(1), and Village Lawsection 7-712-a(1).

132. See Soho Alliance v. N.Y. City Board of Standards & Appeals, 95 N.Y.2d 437 (2000).

133. Gill v. O'Neil, 21 A.D.2d 718 (3 Dept., 1964).rd

134. Gilbert v. Stevens, 284 A.D. 1016 (3 Dept., 1954).rd

135. See also Cohalan v. Schermerhorn, 77 Misc.2d 23 (Sup. Ct., Suffolk Co., 1973); 215East 72nd Street Corp. v. Klein, 58 A.D.2d 751 1 Dept., 1977.st

136. General City Law section 81-a(13), Town Law section 267-a(13), and Village Lawsection 7-712-a(13).

137. Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington,97 N.Y.2d 86 (2001).

138. General City Law section 81-a(13), Town Law section 267-a(13), and Village Lawsection 7-712-a(13).

139. General City Law section 81-a(13)(b), Town Law section 267-a(13)(b), and VillageLaw section 7-712-a(13)(b).

140. General City Law section 81-a(12), Town Law section 267-a(12), and Village Lawsection 7-712-a(12).

141. General City Law section 81-a (2), Town Law section 267-a(2), and Village Lawsection 7-712-a(2).

142. See General City Law section 81-a(9), Town Law section 267-a(9), Village Law section7-712-a(9).