Sasso v. Osgood, 86 N.Y.2d 374 (October 19, 1995).

LAND USE - ZONING - VARIANCE - PRACTICAL DIFFICULTIES

APPLICANT NEED NOT SHOW PRACTICAL DIFFICULTIES TO GET AREA VARIANCE

In 1989, Gerald Speach bought a parcel of land located in the Town of Henderson, New York. At the time of his purchase, the property was undeveloped but for a slip boathouse. Consisting of only 5,200 square feet, approximately 50 feet by 72 feet, the lot was substandard under Henderson zoning ordinances which required a minimum of 12,000 square feet and a width of 100 feet. Local ordinances also designated the property as "lakefront district," subject to "special permit" use.

In 1990, Speach applied to the Town of Henderson Zoning Board of Appeals ("the Board") to obtain a variance, so that he could demolish the boathouse and replace it with a larger one. The owners of lots adjacent to Speach's property were opposed. The Board granted Speach the variance. Although Petitioners' appeals under Article 78 were dismissed in the Supreme Court, the Appellate Division reversed. Finding that Speach failed to show "practical difficulties sufficient to justify a variance," the Appellate Division annulled the Board's action.

In 1993, Speach again sought a variance from the Board. It granted the variance based on the recently amended Town Law § 267-b(3), which laid out enumerated criteria for issuance of area variances without using the "practical difficulty" language. Once more, the Supreme Court denied Petitioners' appeal via an Article 78 proceeding, to be reversed by the Appellate Division. The Appellate Division concluded that the new statutory language had not been intended to relieve applicants for area variances from the need to demonstrate practical difficulties in complying with generally applicable zoning rules.

ANALYSIS

Whether Town Law § 267-b(3) requires that an applicant for an area variance show "practical difficulties" in complying with the general zoning ordinance before one can be granted.

DISPOSITION

No. Order reversed, with costs, and judgment of the Supreme Court reinstated.

Discussed

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

Cited Only

• 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (N.Y. 1979).
• Conley v. Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309 (N.Y. 1977).
• Cowan v. Kern, 41 N.Y.2d 591 (N.Y. 1977).
• Dauernheim, Inc. v. Town Bd., 33 N.Y.2d 468 (N.Y. 1974).
• DeSena v. Board of Zoning Appeals, 45 N.Y.2d 105 (N.Y. 1979).
• Doyle v. Amster, 79 N.Y.2d 592 (N.Y. 1992).
• Fuhst v. Foley, 45 N.Y.2d 441 (N.Y. 1979).
• Fulling v. Palumbo, 21 N.Y.2d 30 (N.Y. 1967).
• Hoffman v. Harris, 17 N.Y.2d 138 (N.Y. 1966).
• McGowan v. Cohalan, 41 N.Y.2d 434 (N.Y. 1977).
• National Merritt v. Weist, 41 N.Y.2d 438 (N.Y. 1977).
• Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (N.Y. 1972).
• Orchard Michael, Inc. v. Falcon, 65 N.Y.2d 1007 (N.Y. 1985).
• Sega v. State, 60 N.Y.2d 183 (N.Y. 1984).
• Village Bd. v. Jarrold, 53 N.Y.2d 254 (N.Y. 1982).
• Wilcox v. Zoning Bd. of Appeals, 17 N.Y.2d 249 (N.Y. 1966).

OTHER SOURCES CITED

• Town Law § 267-b(3)
• Robert M. Anderson, New York Zoning Law and Practice, § 23.34 at 208-09 (3d ed. 1986.)

1. Court's Reasoning

The court held that Town Law § 267-b(3) does not require applicants for an area variance to make a showing of practical difficulties. The court compared the new statute to its predecessor. Previous decisions applied a test of "unnecessary hardship" in use variance cases and practical difficulties in area variance cases. The court noted that use variance guidelines under the new legislation retained the language for an applicant's showing of unnecessary hardship whereas the standard for area variances no longer required the applicant to prove practical difficulties.

The court reviewed the guidelines for area variances, which require a zoning board to engage in a balancing test, weighing the "benefit to the applicant" against "the detriment to the health, safety and welfare of the neighborhood or community." The Board's decision cannot be overturned unless it fails the arbitrary and capricious test. See Cowan v. Kern, 41 N.Y.2d 591, 599 (1977). As a result, the court upheld the Board's decision after concluding that the grant of the variance based on the factors set forth in the statute was rational. Finally, the court noted that although the applicant's difficulty was self-created, the statute specifically states that that does not preclude the grant of an area variance.

2. Survey of Law in Other Jurisdictions

An excellent treatment of zoning laws in general and area variances in particular can be found in Robert M. Anderson, American Law of Zoning (3d ed. 1986). Anderson indicates the following: Courts that have generally followed the practical difficulties test include Arizona, Maryland, and Michigan. Other state courts such as those in Delaware, the District of Columbia, Massachusetts, Ohio, Washington, and Wisconsin have adopted rules which effectively apply the (practical difficulties) requirement. Illinois, Virginia, and Oklahoma courts have all applied a balancing test much like that suggested in Sasso, weighing "the benefit of the applicant versus the health, safety and welfare of the community." Finally, the Indiana Code provisions on area variances also indicate a balancing test but include the "practical difficulties" phrase.

A second source that may be useful in distinguishing among the laws of various states is Jonathan E. Cohen, Comment, A Constitutional Safety Valve: The Variance In Zoning and Land-use Based Environmental Controls, 22 B.C. Envtl. Aff. L. Rev. 307, Winter, 1995.

3. Unanswered Questions

The court did not discuss when an applicant's self-created difficulty will preclude granting of an area variance. The court found that the Board did not act arbitrarily in spite of its "unsupported" finding on that issue. Perhaps the self-created factor can be used to deny variances to individuals who are attempting to flout the zoning ordinances when proposed changes would not impact the first four factors.

The court said an applicant need not show practical difficulties, but does not address whether under the new statute a showing of practical difficulties should make a difference in the granting of an area variance.

Additionally, the court did not distinguish the factors in the statute. The relative weight of the factors is yet to be discussed.

4. Implications

Under the court's reading of the 1993 legislation, practitioners should find area zoning variances easier to obtain and uphold against Article 78 attack. Under Sasso, zoning boards should apply the five specified statutory factors of Town Law § 267-b(3) instead of the multi-factored practical difficulties test, and should not hold applicants to a showing of "significant economic injury." While the opinion is explicitly limited to the area variance provisions of the Town Law, parallel language was added in 1993 to both the Village Law and the General City Law. See Village Law § 7-712-b(3) and General City Law § 81-b(4).

Although the "self-created" nature of the difficulty was never necessarily fatal, see Conley v. Brookhaven Zoning Bd., 40 N.Y.2d 309, 315 (1977), codification of this requirement places significant power in the hands of the zoning board. Specifically, board members might use this subsection to justify denial of a variance request, although other factors favor a variance. Given the implications of this subsection (it "shall not necessarily preclude" granting of a variance, but may well authorize the discretion to deny a variance), it remains to be seen how this discretion will be used.

The court distinguishes between other administrative decisions, which are quasi-judicial in nature, and decisions of zoning boards, which are administrative or quasi-legislative. Thus, the review standard for zoning board decisions is "arbitrary and capricious." The court reconciles these divergent standards at note 2, writing that "when reviewing the determinations of a zoning board, courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the board's determination."

Prepared By:

• Richard J. Colosimo, '97
• Adam R. Fox, '96
• Howard K. Jeruchimowitz, '97
• R. Tor Liimatainen, '97
• John R. Mayer, '96
• Reese E. Solberg, '97

If you have views about the Court's decision or this LII commentary on it that you would like to share, the LII editors would be pleased to hear from you via an e-mail message to: editors@lii.law.cornell.edu