Jones v. Zoning Bd. of Appeals of the Oneonta

• Decision Date: 15 December 2011
• Parties: In the Matter of Rodney JONES et al., Appellants, v. ZONING BOARD OF APPEALS OF the TOWN OF ONEONTA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09064
90 A.D.3d 1280
934 N.Y.S.2d 599

In the Matter of Rodney JONES et al., Appellants,
v.
ZONING BOARD OF APPEALS OF the TOWN OF ONEONTA et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 15, 2011.

[934 N.Y.S.2d 600]

Rodney Jones and Bonnie Jones, Oneonta, appellants pro se.

Harlem & Jervis, Oneonta (Richard A. Harlem of counsel), for Zoning Board of Appeals of the Town of Oneonta, respondent.

Young Sommer, L.L.C., Albany (Robert A. Panasci of counsel), for Clark Stone Products, respondent.

Before: PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

PETERS, J.P.

[90 A.D.3d 1280] Appeal from a judgment of the Supreme Court (Dowd, J.), entered February 14, 2011 in Otsego County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Zoning Board of Appeals of the Town of Oneonta granting a request by respondent Clark Stone Products for a use variance.

[934 N.Y.S.2d 601]

Larry Place and his wife owned a 19–acre parcel of property in the Town of Oneonta, Otsego County. The property, located in a RA–40 zone wherein the permitted uses are primary residential and agricultural, contains a sand and gravel mine that has remained inactive for approximately 50 years. In 2007, Place applied for a use variance to permit mining on the property. After a hearing, respondent Zoning Board of Appeals of the Town of Oneonta (hereinafter ZBA) granted the variance. Petitioners, whose property adjoins the parcel in question, commenced a CPLR article 78 proceeding to challenge the ZBA's determination. Supreme Court dismissed the petition. On appeal, this [90 A.D.3d 1281] Court annulled the determination after concluding that proper notice of the hearing was not provided to petitioners or the general public ( Matter of Jones v. Zoning Bd. of Appeals of Town of Oneonta, 61 A.D.3d 1299, 879 N.Y.S.2d 592 [2009] ).

During the pendency of that appeal, respondent Clark Stone Products purchased the property for $125,000, which included the value of the minerals contained therein. Pursuant to the contract, Clark was required to reconvey the approximately one-acre parcel where the Place residence was situated back to the Places upon approval by the Town for a subdivision. After this Court annulled the ZBA's determination granting Place's application for a variance, Clark reapplied for a use variance. Following a hearing, the ZBA approved Clark's application and granted the variance.¹ Petitioners then commenced this proceeding to annul the ZBA's determination, asserting that Clark failed to establish an unnecessary hardship warranting a use variance. Supreme Court dismissed the petition and petitioners now appeal.

Zoning boards are afforded considerable discretion in considering applications for variances and their determinations will not be disturbed if they have a rational basis and are supported by substantial evidence in the record ( see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 [2002]; Matter of Androme Leather Corp. v. City of Gloversville, 1 A.D.3d 654, 656, 766 N.Y.S.2d 462 [2003], lv. denied 1 N.Y.3d 507, 776 N.Y.S.2d 539, 808 N.E.2d 859 [2004] ). An applicant for a use variance bears the burden of demonstrating that restrictions on the property have caused an unnecessary hardship, which requires a showing that (1) the property cannot yield a reasonable return if used for permitted purposes as it is currently zoned, (2) the hardship results from the unique characteristics of the property, (3) the proposed use will not alter the essential character of the neighborhood, and (4) the hardship has not been self-imposed ( see Town Law § 267–b[2][b]; Matter of Sullivan v. City of Albany Bd. of Zoning Appeals, 20 A.D.3d 665, 666, 798 N.Y.S.2d 200 [2005], lv. denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155 [2005]; Matter of Center Sq. Assn., Inc. v. City of Albany Bd. of Zoning Appeals, 19 A.D.3d 968, 970, 798 N.Y.S.2d 756 [2005]; Matter of Save the Pine Bush v. Zoning Bd. of Appeals of Town of Guilderland, 220 A.D.2d 90, 95, 643 N.Y.S.2d 689 [1996], lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ).

As to the first element, Clark was required to present “dollars and cents” proof establishing that the land cannot yield a reasonable...