Sasso v. Osgood

• Decision Date: 19 October 1995
• Citation: 86 N.Y.2d 374,657 N.E.2d 254,633 N.Y.S.2d 259
• Parties: , 657 N.E.2d 254 In the Matter of Lawrence M. SASSO et al., Respondents, v. Elliott OSGOOD et al., Constituting the Zoning Board of Appeals of the Town of Henderson, Respondents. Gerald G. Speach, Intervenor-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 259

633 N.Y.S.2d 259

86 N.Y.2d 374, 657 N.E.2d 254

In the Matter of Lawrence M. SASSO et al., Respondents, v. Elliott OSGOOD et al., Constituting the Zoning Board of Appeals of the Town of Henderson, Respondents Gerald G. Speach, Intervenor-Appellant.

Court of Appeals of New York.

Oct. 19, 1995.

Coulter, Fraser, Bolton, Bird & Ventre, Syracuse (P. David Twichell, of counsel), for intervenor-appellant.

Schwerzmann & Wise, P.C., Watertown (Richard J. Graham, of counsel), for Elliott Osgood and others, respondents.

Fix, Spindelman, Brovitz, Turk, Himelein & Shukoff, P.C., Rochester (Karl S. Essler and Joseph T. Coolican, of counsel), for Lawrence M. Sasso and another, respondents.

Rice & Amon, Suffern (Terry Rice and Sheldon Damsky, of counsel), for New York Planning Federation, amicus curiae.

OPINION OF THE COURT

SIMONS, Judge.

This appeal requires us to interpret the provisions of recently enacted Town Law § 267-b(3) regulating area variances. Specifically, the question is whether the provisions of the statute are exclusive or whether an applicant for an area variance must make a showing of "practical difficulties." The Appellate Division came to the latter conclusion that, the provisions of the statute notwithstanding, an applicant must show "practical difficulties" before being entitled to an area variance. We disagree, and reverse the order of that Court.

I

In 1989, intervenor Gerald Speach purchased a waterfront parcel of land situated on Graham's Creek, a man-made canal in the Town of Henderson. The creek is located on the eastern end of Lake Ontario near the mouth of the St. Lawrence River and is lined with commercial and private boathouses. Speach's property, undeveloped but for an existing single slip boathouse, is located within a "lakefront district" as designated by local ordinances adopted in 1991 and is a "special permit" use. It has an area of 5,200 square feet and is approximately 50 feet wide along the road that is its northern border and 72 feet wide at the waterfront. The Town of Henderson zoning ordinances require a minimum lot area of 12,000 square feet and minimum lot width of 100 feet. Thus Speach's property is substandard in both area and width.

In 1990, Speach applied to the Town of Henderson Zoning Board of Appeals for area variances to allow him to demolish the existing structure and build a larger boathouse. At that time, the local ordinances required a minimum lot size of 7,500 square feet. Petitioners Sasso and Edney, who own adjacent lots developed with boathouses and residences, objected to the application. They contended that Speach's proposed boathouse would obstruct their access to light, air and view, and that the foundations of their structures and their septic systems would be damaged by construction and altered water drainage patterns. The Zoning Board granted the variances, and petitioners commenced a CPLR article 78 proceeding to annul that determination. Supreme Court dismissed the petition, but on appeal, the Appellate Division reversed and granted it. The Appellate Division determined that Speach had failed to demonstrate "practical difficulties sufficient to justify an area variance" primarily because he had not shown that " 'strict enforcement of the [zoning] ordinance will cause him a significant economic injury' " (Matter of Sasso v. Gamble, 181 A.D.2d 988, 581 N.Y.S.2d 496).

In 1993, Speach submitted a new application for area variances to the Zoning Board based on changed circumstances since his 1990 application. Speach had altered the design of the boathouse and its method of construction to address the concerns of petitioners, and he argued that local redistricting of the property in 1991 supported his application. Speach also relied on newly enacted Town Law § 267-b(3) which, he contended, no longer required him to show economic hardship or practical difficulties. Applying the criteria set forth in the new statute, the Zoning Board granted Speach's application for a variance. Supreme Court denied petitioners' ensuing article 78 petition to annul the determination of the Zoning Board, but on appeal to the Appellate Division, that Court annulled the determination of the Zoning Board and granted the petition. The Court noted that the standards for granting area variances under the former test of practical difficulties and the new statutory criteria are not appreciably different, and held that "an applicant still must demonstrate that strict compliance with the zoning ordinance will result in practical difficulties" (Matter of Sasso v. Osgood, 206 A.D.2d 837, 838, 614 N.Y.S.2d 660). We granted intervenor's motion for leave to appeal to this Court.

II

Prior to July 1, 1992, the authority of Town Zoning Boards of Appeal to grant variances from local zoning ordinances was defined in Town Law former § 267. The boards were authorized to grant variances "[w]here there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of [local] ordinances" provided that "the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done" (Town Law former § 267[5]. Although the former statute did not distinguish between "use" and "area" variances or assign the specific tests to them, court decisions generally applied the "unnecessary hardship" test in use variance cases, while requiring a demonstration of "practical difficulties" in area variance cases (see, Matter of Village of Bronxville v. Francis, 1 A.D.2d 236, 238, 150 N.Y.S.2d 906, affd 1 N.Y.2d 839, 153 N.Y.S.2d 220, 135 N.E.2d 724; see also, Matter of Hoffman v. Harris, 17 N.Y.2d 138, 144, 269 N.Y.S.2d 119, 216 N.E.2d 326; Dauernheim, Inc. v. Town Bd., 33 N.Y.2d 468, 471, 354 N.Y.S.2d 909, 310 N.E.2d 516; Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 168, 331 N.Y.S.2d 397, 282 N.E.2d 299).

A three-pronged test of "unnecessary hardship" was clearly articulated more than 50 years ago (see, Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851) and that test, now embodied in Town Law § 267-b(2), has been applied in use variance cases without substantial difficulty (see, e.g., Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 440 N.Y.S.2d 908, 423 N.E.2d 385; see also, Holy Sepulchre Cemetery v. Board of Appeals, 271 App.Div. 33, 60 N.Y.S.2d 750; Matter of Fasani v. Rappaport, 30 A.D.2d 588, 290 N.Y.S.2d 279; Matter of Swartz v. Wallace, 87 A.D.2d 926, 450 N.Y.S.2d 65; Matter of Varley v. Zoning Bd. of Appeals, 131 A.D.2d 905, 516 N.Y.S.2d 355; Matter of Dwyer v. Polsinello, 160 A.D.2d 1056, 553 N.Y.S.2d 888; Matter of Drake v. Zoning Bd. of Appeals, 183 A.D.2d 1031, 583 N.Y.S.2d 628). The definition and application of the "practical difficulties standard" has proven far more troublesome.

Lacking a statutory definition, we have recognized the existence of "practical difficulties" where the unusual topography of the subject parcel interfered with construction of a building (see, Matter of Wilcox v. Zoning Bd. of Appeals, 17 N.Y.2d 249, 255, 270 N.Y.S.2d 569, 217 N.E.2d 633), and where area variances were required to build a house on an amply sized but oddly shaped parcel that did not meet frontage and side yard requirements (Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 316, 386 N.Y.S.2d 681, 353 N.E.2d 594). We have also suggested that an area variance could be granted upon a showing of "significant economic injury" (Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 33, 286 N.Y.S.2d 249, 233 N.E.2d 272; see also, Matter of Cowan v. Kern, 41 N.Y.2d 591, 596, 394 N.Y.S.2d 579, 363 N.E.2d 305). In Matter of National Merritt v. Weist, 41 N.Y.2d 438, 393 N.Y.S.2d 379, 361 N.E.2d 1028 we considered both unique topography and economic injury relevant to the application for an area variance. These cases are only illustrative. We have noted several times that there is no precise definition of the term "practical difficulties" (Matter of Doyle v. Amster, 79 N.Y.2d 592, 595, 584 N.Y.S.2d 417, 594 N.E.2d 911; Matter of Fuhst v. Foley, 45 N.Y.2d 441, 445, 410 N.Y.S.2d 56, 382 N.E.2d 756), observing that "[t]he basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner" (Matter of De Sena v. Board of Zoning Appeals, 45 N.Y.2d 105, 108, 408 N.Y.S.2d 14, 379 N.E.2d 1144).

Without any legislative guidance defining the requirements for an area variance, the courts began to develop a list of considerations to be applied under Town Law former § 267 (see, Matter of Wachsberger v. Michalis, 19 Misc.2d 909, 191 N.Y.S.2d 621, affd. 18 A.D.2d 921, 238 N.Y.S.2d 309; see also, Matter of Friendly Ice Cream Corp. v. Barrett, 106 A.D.2d 748, 483 N.Y.S.2d 782; Human Dev. Servs. v. Zoning Bd. of Appeals, 110 A.D.2d 135, 493 N.Y.S.2d 481, affd. 67 N.Y.2d 702, 499 N.Y.S.2d 927, 490 N.E.2d 846). Although originally offered as guidance for determining whether "the spirit of the ordinance [is] observed, public safety and welfare secured and substantial justice done" (see, Matter of Wachsberger v. Michalis, 19 Misc.2d, at 912, 191 N.Y.S.2d 621 [Meyer, J.], supra ), these criteria came to be known as the "practical difficulties" test (see, 2 Anderson, New York Zoning Law and Practice § 23.34, at 208-209 [3d ed.]. The criteria notwithstanding, however, precise and concise definition of "practical difficulties" never emerged from the case law. In particular, it remained unclear whether a showing of "significant economic injury" was part of the "practical difficulties" test (see, e.g., Matter of Doyle v. Amster, 79 N.Y.2d 592, 584 N.Y.S.2d 417, 594 N.E.2d 911 supra; Matter of Orchard Michael, Inc. v. Falcon, 65 N.Y.2d 1007, 494 N.Y.S.2d 98, 484 N.E.2d 127; Matter of Children's Hosp. v. Zoning Bd. of Appeals, 181 A.D.2d 1056, 582 N.Y.S.2d 317; Matter of Stengel v. Town of Woodstock Zoning Bd. of Appeals...