Real Holding Corp. v. Lehigh

• Decision Date: 06 May 2004
• Citation: 2 N.Y.3d 297,810 N.E.2d 890,778 N.Y.S.2d 438
• Parties: In the Matter of REAL HOLDING CORP., Respondent, et al., Petitioner, v. ALAN LEHIGH et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 297

810 N.E.2d 890

778 N.Y.S.2d 438

In the Matter of REAL HOLDING CORP., Respondent, et al., Petitioner, v. ALAN LEHIGH et al., Appellants.

Court of Appeals of the State of New York.

Argued March 24, 2004.

Decided May 6, 2004.

Vergilis, Stenger, Roberts, Pergament & Viglotti, LLP, Wappingers Falls (Karen P. MacNish and Albert P. Roberts of counsel), for appellant.

Keane & Beane, P.C., White Plains (Judson K. Siebert of counsel), for respondent.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

OPINION OF THE COURT

READ, J.

We are asked to decide whether Town Law § 274-b (3) authorizes a zoning board of appeals (ZBA) to grant area variances from special use permit requirements. For the reasons that follow, we hold that Town Law § 274-b (3) vests a ZBA with authority to grant an area variance from any requirement in a zoning regulation, including those for a special use permit.

I.

In 1992, Real Holding Corp. (RHC) acquired a one-half-acre parcel of land situated within a "Highway Business District" as shown on the Town of Wappinger's zoning map. This parcel had served since the mid-1960's as the site of a gasoline filling station, which closed shortly before RHC's purchase of the land. After cleaning up the property to the satisfaction of state environmental authorities, RHC opted to develop a new gasoline filling station on it.

In order to undertake this proposed use, RHC was obliged by the Town Code to obtain a "gasoline filling station" special use permit from the Town Planning Board; however, RHC was unable to satisfy two distance standards for this permit. Specifically, the applicable Town Code provisions mandated 1,000 feet between a gasoline filling station and the boundary line of certain residentially zoned lands, and 2,500 feet between gasoline filling stations. In 1995, RHC asked the Town's ZBA for variance relief from these two standards. The ZBA turned RHC down in early 1996, opining that it lacked jurisdiction to waive or modify zoning requirements specific to a special use permit.

In 2000, RHC revived its campaign to reestablish a gasoline filling station on the property by applying to the Planning Board for a special use permit. The Planning Board denied the application for failure to conform with several zoning requirements, including the two distance standards for the special use permit, and advised RHC to seek variances from the ZBA.

RHC requested the necessary variances, and the ZBA voted to entertain the application. After several months of review, however, the ZBA concluded that it was powerless to grant an area variance from special use permit requirements absent an express grant of authority therefor from the Town Board. Accordingly, on June 19, 2001, the ZBA denied RHC's application.

RHC then commenced this CPLR article 78 proceeding to seek annulment of the ZBA's determination and a judgment directing the ZBA to hear and decide its application for area variances. Supreme Court granted RHC's petition and remitted the matter to the ZBA for further proceedings, holding that Town Law § 274-b (3) explicitly authorizes a ZBA to grant area variances from special use permit requirements. Upon the ZBA's appeal, the Appellate Division affirmed (304 AD2d 583 [2d Dept 2003]). We granted the ZBA leave to appeal, and now affirm.

II.

In the early 1990's, the Legislature authorized the Joint Legislative Commission on Rural Resources to develop recommendations for recodifying local zoning laws. In 1991, the provisions concerning ZBAs in the Town Law were substantially revised as a result (see L 1991, ch 692, §§ 1-4; Town Law §§ 267-267-c). The following year the Legislature enacted companion legislation, which, as relevant here, included new Town Law § 274-b (see L 1992, ch 694, § 2). This provision defines and governs approval of special use permits, a widely used zoning device previously unmentioned in state statute.

Two subdivisions of section 274-b come into play on this appeal. The first—subdivision (3)—addresses the circumstances under which application may be made to a ZBA for an area variance from special use permit requirements:

"Application for area variance. Notwithstanding any provision of law to the contrary, where a proposed special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to section two hundred sixty-seven-b of this article,¹ without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations" (§ 274-b [3]).

The second—subdivision (5)—addresses the waiver of special use permit requirements:

"Waiver of requirements. The town board may further empower the authorized board to, when reasonable, waive any requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval. Any such waiver, which shall be subject to appropriate conditions set forth in the ordinance or local law adopted pursuant to this section, may be exercised in the event any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit" (§ 274-b [5]).

In the ZBA's view, subdivisions (3) and (5) clash and, at most, establish that a ZBA may grant an area variance from general zoning requirements, but not from a special use permit requirement unless express authorization to do so has been bestowed by a town board in the town's zoning code. We disagree.

First, subdivision (3) plainly states that "application may be made to the [ZBA] for an area variance" in those cases "where a proposed special use permit . . . do[es] not comply with the zoning regulations." Moreover, a ZBA may grant these area variances "[n]otwithstanding any provision of law to the contrary."

Next, subdivision (3) refers to "zoning regulations" without qualification. Nothing in the statute's language suggests that area variances for special use zoning regulations should be treated differently than area variances from general, so-called bulk, zoning requirements. To hold that a ZBA may vary certain zoning provisions only if expressly empowered to do so by the town board overlooks the entire purpose of the ZBA, which is to provide relief in individual cases from the rigid application of zoning regulations enacted by the local legislative body.

Finally, section 274-b is entitled "Approval of special use permits," and subdivision (3) directs that application for an area variance may be made to the ZBA "pursuant to" section 267-b (entitled "Permitted action by board of appeals"), which supplies the procedures for a ZBA to follow when issuing an area variance (see Town Law § 267-b [3]). Thus, section 274-b authorizes ZBAs to issue area variances from special use permit requirements, following the statutory procedures applicable to ZBAs in the exercise of their area variance jurisdiction. This is not only clear, but entirely consistent with the statutes and case law emphasizing that ZBAs are "vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances" (Matter of Commco, Inc. v Amelkin, 62 NY2d 260, 266 [1984]

; see also Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 162 [1976] ["(T)he board of zoning appeals is a quasi-judicial body created by State law . . . . It provides a forum for the mitigation of harsh effects which zoning...