Self-Created Hardships — Five Factors — Not One — Decide Area Variance Applications

January 23, 2002

When developers or property owners want to use their land in a manner that is not permitted by the dimensional or physical requirements of the local zoning laws, they may seek an area variance. In the past, zoning boards of appeal, and the courts, frequently concluded that an applicant was not entitled to an area variance, if its hardship had been self-created. A self-created hardship might arise when a developer or property owner subdivides land into some plots that meet all zoning requirements and one (or more) that do not.

A number of years ago, the New York Court of Appeals ruled that a self-created hardship was only one factor to be taken into account in considering an application for an area variance, and that it should not be the determinative factor./1 Then, in 1992, the New York State Legislature amended the Town Law and the Village Law to formally adopt that standard.

Thus, under the law as it exists today, an application for an area variance need not be denied if the applicant created the hardship requiring the variance./2 The statute states that in making its determination whether to grant an area variance, a zoning board of appeals shall take into consideration “the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant.” Moreover, to make that determination, a board must consider five factors — only one of which is whether a hardship was self-created. In particular, these factors are whether:

1. an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

2. the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

3. the requested area variance is substantial;

4. the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

5. the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Courts strictly enforce the decade-old law. For example, in one case,/3 the Zoning Board of Appeals of the Village of Babylon rejected a property owner’s request for an area variance, finding that his difficulty had been self-created. Suffolk County Supreme Court reversed that decision, and the Appellate Division, Second Department affirmed, stating that the zoning board of appeals had “failed to consider four of the five relevant statutory factors, and to engage in the requisite balancing test.” Examining the record, the Appellate Division found no evidence that granting the variance application would have an undesirable effect on the character of the neighborhood or an adverse impact on physical and environmental conditions. Indeed, it concluded that considering all of the statutory factors, the zoning board of appeals’ determination was not supported by substantial evidence.

The Sasso Ruling

In 1995, the New York Court of Appeals decided Matter of Sasso v. Osgood./4 In that case, the Court reinforced that the new statutes require a zoning board of appeals to engage in a balancing test. Importantly, the Court also ruled that a determination of a zoning board of appeals is administrative or quasi-legislative in character and therefore must be upheld if it is rational. As a practical matter, therefore, the 1992 statutory changes and the Court’s 1995 decision in Sasso leave the decision on an application for an area variance in the hands of the zoning board of appeals.

Consider, for instance, the decision of the Appellate Division, Second Department, in Matter of Monte v. Edwards./5 In that case, a homeowner hired a contractor to install a pool and a deck on his property. When the job was completed, the homeowner discovered that, due to the contractor’s error, the pool was not located in the proper position and that it violated a 30-foot setback requirement of the Town of Shelter Island. The homeowner sought a variance, asserting that he would sustain economic hardship if he were required to relocate the pool. The town refused to grant a variance, but Supreme Court, Suffolk County, annulled that determination. The Second Department reversed, simply stating that the zoning board’s determination to deny the variance “was neither illegal, arbitrary, nor an abuse of discretion.”

In another case,/6 the Zoning Board of Appeals of the Village of Kensington denied a property owner’s applications for area variances, and he appealed. Supreme Court, Nassau County, confirmed the determination and the matter reached the Second Department.

In its opinion, the Second Department pointed out that the property owner, a “seasoned purchaser of real estate,” had failed to exercise “the reasonable diligence which would have readily revealed that this lot was substandard and nonconforming.” The appellate court did not rest its conclusion affirming the Supreme Court’s decision on that ground alone, of course. It also said that the property owner’s failure to consider alternatives was properly held to be a negative consideration in determining whether relief should be granted, as was his refusal to sell the substandard property to his adjoining neighbors. As the court observed, the record made clear that the property could have yielded a reasonable return without the use of a variance.

The Second Department concluded by pointing out that, although there were factors weighing in favor of granting the variance, a court should not substitute its judgment for that of a zoning board where there was substantial evidence in the record to support the board’s determination.

An interesting decision from Westchester County is to the same effect./7 That case arose in May 1989 when Herbert Rogers purchased two adjacent parcels of land on Cedar Avenue in the Town of Mt. Pleasant, known as lots 4 and 5. On lot 5, Mr. Rogers built a single-family residence. Lot 4 was not developed and in fact was nonconforming because it measured 22 feet less than the 150-foot mean depth requirement. Mr. Rogers applied for a mean depth variance but the town’s zoning board of appeals denied his application.

Mr. Rogers commenced an Article 78 proceeding challenging the determination. Supreme Court dismissed the petition, finding that the zoning board of appeals had correctly considered the applicable statutory criteria and that its determination was rational and supported by substantial evidence in the record. Mr. Rogers appealed.

The Appellate Division noted that evidence at the hearing had established that Mr. Rogers had already begun to remove trees and deposit fill in anticipation of the proposed construction, changing the character of the neighborhood by altering the natural contours of the land. These changes increased the existing grade of the lot, which was located on a hill, from an angle of 26 degrees to 45 degrees, and in some instances, to an angle of 75 degrees. According to the Appellate Division, this proof supported the zoning board of appeals’ findings that this condition exacerbated the land erosion and water runoff problems for neighboring property owners located below the parcel. As the Appellate Division observed, the zoning board of appeals also had expressed concern about the stability of the fill used to prepare the lot for construction and had noted concerns by property owners in reference to devaluation of their land due to flooding. All of this evidence, the Appellate Division emphasized, supported the zoning board of appeals’ determination that “[t]he proposed construction would have a definite adverse impact on both the physical and environmental conditions of the neighborhood.”

The Appellate Division added that the zoning board of appeals’ finding that the difficulty was self-created was supported by evidence that the lot was substandard at the time Mr. Rogers had purchased it. In its view, the zoning board of appeals’ decision weighing these criteria against its findings that the requested variance was not substantial and the benefit sought by Mr. Rogers could not be obtained by other feasible means was not irrational, arbitrary or capricious. Accordingly, it affirmed the Supreme Court’s judgment dismissing the petition.

Expert Testimony

As these cases unequivocally demonstrate, the hearings on applications for area variances that are held before zoning boards of appeals are crucial. Simply put, it is rare for these decisions to be overturned; when they are, it usually is not because they failed to properly weigh all factors, but because they inappropriately considered factors such as general community opposition/8 or environmental concerns that should have been considered by another governmental entity./9 Property owners, developers and local governments — and opponents to area variance applications — must make certain that they rely on experts, file appropriate memoranda of law, and present overwhelming evidence to support their position at the hearings before their local zoning boards. This should not be overlooked even when an application relates to a residential property, where it is most likely exempt from the requirements of the State Environmental Quality Review Act and parties may be tempted to forego expert testimony.

It also should be emphasized that self-created hardships may well determine an application for a use variance; practitioners should carefully characterize the variance they seek as either a use variance or an area variance. Thereafter they should rely on the appropriate statutes and court decisions to present their evidence in the best light possible. In reading cases in this area be aware in every instance whether the case is an area variance or use variance case.

NOTES:

1. Matter of De Sena v. Board of Zoning Appeals of Hempstead, 45 N.Y.2d 105 (1978).

2. See Town Law Section 267 and Village Law Section 7-712.

3. Matter of Peccoraro v. Humenik, 258 A.D.2d 465 (2d Dept. 1999).

4. 86 N.Y.2d 374 (1995).

5. 258 A.D.2d 584 (2d Dept. 1999).

6. Matter of Weisman v. Zoning Board of Appeals of Kensington, 260 A.D.2d 487 (2d Dept.1999).

7. Matter of Rogers v. Baum, 234 A.D.2d 685 (3d Dept. 1996).

8. See, e.g, Matter of D’Angelo v. Zoning Board of Appeals of Town of Webster, 229 A.D.2d 947 (4th Dept. 1996).

9. See, e.g., Matter of Frank v. Scheyer, 227 A.D.2d 558 (2d Dept. 1996).

John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use, and environmental matters, including litigation. He may be reached at jarmentano@farrellfritz.com.

This article is reprinted with permission from the January 23, 2002 edition of the New York Law Journal.

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