National Merritt, Inc. v. Weist

• Decision Date: 22 February 1977
• Citation: 393 N.Y.S.2d 379,361 N.E.2d 1028,41 N.Y.2d 438
• Parties: , 361 N.E.2d 1028 In the Matter of NATIONAL MERRITT, INC., Appellant, v. Robert WEIST et al., Constituting the Zoning Board of Appeals of the Village of Briarcliff Manor, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 379

393 N.Y.S.2d 379

41 N.Y.2d 438, 361 N.E.2d 1028

In the Matter of NATIONAL MERRITT, INC., Appellant, v. Robert WEIST et al., Constituting the Zoning Board of Appeals of the Village of Briarcliff Manor, Respondents.

Court of Appeals of New York.

Feb. 22, 1977.

Donald S. Snider and Gerald M. Levine, New York City, for appellant.

Gordon R. Brown, Village Atty., Pleasantville, (Arthur J. Selkin Pleasantville, of counsel), for respondents.

Laurance Rockefeller and Nicholas A. Robinson, New York City, for Federated Conservationists of Westchester County, Inc., amicus curiae.

GABRIELLI, Justice.

On this appeal, petitioner challenges respondent's denial of its request for an area variance with respect to approximately 19 3/4 acres of land in the Village of Briarcliff Manor which petitioner desires to develop as a large shopping center. In the alternative, petitioner argues that the floor area and building length restrictions of the zoning ordinance are unconstitutional as applied to the property in question.

The subject property is located on the easterly side of South Highloand Avenue (State Route 9) in the Village of Briarcliff Manor; and is a portion of an original larger parcel of 34 acres, 2 1/2 acres of which have been sold by petitioner and are now the site of a building occupied by the New York Telephone Company and the Brooklyn Savings Bank. Twelve of the original 34 acres are still owned by petitioner and are residentially zoned, while the subject 19 3/4 acre parcel is zoned 'General Business B--2'. Under this zoning category, the most liberal in the village ordinance, residential commercial and light industrial uses are permitted. The variety of permissible commercial uses includes, Inter alia, professional or business office, bank, restaurant, motion picture theatre, gasoline station, motor vehicle salesroom, laundry and retail establishment. However, in accordance with the village's policy that retailing services be limited 'primarily for the convenience of the inhabitants of the Village and the immediate locality', restrictions are placed upon the magnitude of the retail development of the property. Under these restrictions, the floor area of an individual retail establishment used for merchandising or personal services is limited to 15,000 square feet ¹ and the length of an individual structure may not exceed 180 feet. Petitioner sought a variance permitting it to erect a one-story commercial structure containing a floor area of 180,500 square feet, the major portion of which would be divided into three large retail stores with floor areas of 30,000, 38,900 and 70,000 square feet respectively. The over-all length of the proposed structure would be 965 feet. As is evident, the dimensions of the proposed structure greatly exceed those fixed by the ordinance.

Petitioner urges, and it is not disputed, that the topography of the land creates a severe hardship in the development of the subject property for shopping center purposes. The parcel contains numerous rock outcroppings and sharp inclines up to 70 feet above the grade of Route 9 and the course of Sparta Brook, a natural stream intersecting the property. Petitioner thus maintains that a small scale 'neighborhood' shopping center constructed in conformity with the zoning restrictions would not yield a reasonable return on the owner's investment due to the exorbitant cost of site development, requiring a vast leveling operation at a projected cost of nearly three million dollars. The zoning board denied the variance on the grounds that the establishment of a large scale regional shopping center would (1) be harmful to the character of the surrounding area which consisted of residential and residentially zoned properties, (2) result in a hazardous traffic condition on Route 9, (3) create flooding and drainage problems for the village and the surrounding area and (4) violate the village wetlands ordinance which prohibits the alteration of natural watercourses such as Sparta Brook. Additionally, respondents also reason that the neighboring, more commercially developed Villages of Tarrytown and Ossining both possess regional shopping centers and thus both Briarcliff Manor and the surrounding environs have no need for the development proposed by petitioner. Special Term overturned the board's decision but the Appellate Division reversed and reinstated the denial of the variance. 50 A.D.2d 817, 376 N.Y.S.2d 571.

Prefatorily, we point out that since the variance sought in this case does not involve a use prohibited by the village zoning ordinance and does not seek a change in the 'essential use of the land', it should be characterized as an area variance (see Matter of Overhill Bldg. Co. v. Delany,28 N.Y.2d 449, 453, 322 N.Y.S.2d 696, 699, 271 N.E.2d 537, 539; Matter of Wilcox v. Zoning Bd. of Appeals of City of Yonkers, 17 N.Y.2d 249, 254, 270 N.Y.S.2d 569, 571, 217 N.E.2d 633, 635; Matter of Village of Bronxville v. Francis, 1 A.D.2d 236, 150 N.Y.S.2d 906, affd. 1 N.Y.2d 839, 153 N.Y.S.2d 220, 135 N.E.2d 724). As we have previously noted, the distinction is an important one since, in the usual case, a use variance will have a greater impact on the community than an area variance which does not involve a use prohibited by the ordinance (see Matter of Wilcox v. Zoning Bd. of Appeals of City of Yonkers, supra, 17 N.Y.2d p. 254, 270 N.Y.S.2d p. 571, 217 N.E.2d p. 635; Matter of Hoffman v. Harris, 17 N.Y.2d 138, 144, 269 N.Y.S.2d 119, 123, 216 N.E.2d 326, 330). However, the magnitude of the desired area variance, while within the confines of a permitted use, is significant since the greater the variance in area restrictions the more severe the likely impact upon the community. In the instant case, for example, petitioner seeks to utilize the property for a regional shopping center on a far larger scale than that permitted by the ordinance which envisions the use of the property for neighborhood retail stores serving only the immediate locality.

Having concluded that this case concerns an application for an area variance, we look to the standards articulated in Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272 and cases decided after Fulling to determine whether the variance was properly denied by the zoning board of appeals. In Matter of Fulling v. Palumbo supra, p. 33, 286 N.Y.S.2d p. 252, 233 N.E.2d p. 274 this court formulated the rule that 'where the property owner will suffer significant economic injury by the application of an area standard ordinance, that standard can be justified only by a showing that the public health, safety and welfare will be served by upholding the application of the standard and denying the variance.' The owner must, therefore, demonstrate that the specific use permitted by the ordinance, for which he desires to utilize the property, will not yield a reasonable return if the area standard restrictions are imposed. However, if there is a legitimate purpose for the ordinance and it is reasonably related to the public health, safety and welfare of the community financial loss is insufficient to compel the granting of the variance (see Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 454, 322 N.Y.S.2d 696, 699, 271 N.E.2d 537, 539, Supra).

Cases following Fulling have modified its broad holding and have held that the manner in which the financial hardship arises is a relevant factor which may be considered by the board. If the hardship may be deemed to be a self-created or self-imposed one then a showing of financial hardship itself does not entitle the owner to a variance. On the other hand, the fact that the hardship is self-created does not foreclose board approval of an area variance (see Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 315, 386 N.Y.S.2d 681, 684, 353 N.E.2d 594, 597; see also, Matter of Overhill Bldg. Co. v. Delany, supra, 28 N.Y.2d pp. 454--457, 322 N.Y.S.2d pp. 699--703, 271 N.E.2d pp. 539--542; Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258, 261--263, 317 N.Y.S.2d 305, 306--308, 265 N.E.2d 733, 734--735; Contino v. Incoporated Vil. of Hepstead, 27 N.Y.2d 701, 314 N.Y.S.2d 15, 262 N.E.2d 221, revg. on dissenting opn. at 33 A.D.2d 1043, 309 N.Y.S.2d 130; Comment, Impact of Fulling on N.Y. Zoning Law, 29 Rutgers L.Rev. 172, 182--184; 2 Anderson, N.Y. Zoning Law and Practice (2d ed), §§ 18.43, pp. 62--63; 2 Rathkopf, Law of Zoning and Planning (3d ed), pp. 48--17--48--20). Thus, we have recently stated that '(f)inancial hardship then is one factor that may be considered, but, by itself, is not determinative' (Conley v. Town of Brookhaven Zoning Bd. of Appeals, supra, 40 N.Y.2d p. 315, 386 N.Y.S.2d p. 684, 353 N.E.2d p. 598). To this extent then, Fulling is distinguishable from the aforecited cases and the instant case since the petitioner in Fulling purchased the property before the zoning change rendered his parcel nonconforming and many of the surrounding lots were already substandard (Matter of Fulling v. Palumbo, supra, 21 N.Y.2d pp. 34, 35--36, 286 N.Y.S.2d pp. 252, 253--254, 233 N.E.2d pp. 274, 275; see, also, Rowe St. Assoc. v. Town of Oyster Bay, 34 A.D.2d 987, 988, 313 N.Y.S.2d 94, 96, aff'd 27 N.Y.2d 973, 318 N.Y.S.2d 502, 267 N.E.2d 277).

Once proof of significant economic injury is adduced the burden of going forward with proof that the restriction is reasonably related to a legitimate exercise of the zoning power is upon the municipality (Matter of Fulling v. Palumbo, supra, ...