St. Onge v. Donovan

• Decision Date: 31 March 1988
• Citation: 522 N.E.2d 1019,71 N.Y.2d 507,527 N.Y.S.2d 721
• Parties: , 522 N.E.2d 1019 In the Matter of Marcel ST. ONGE et al., Appellants, v. Jean DONOVAN, as Chairperson of the Town of Colonie Zoning Board of Appeals, et al., Respondents. In the Matter of Daniel DRIESBAUGH, Respondent, v. Joseph GAGNON et al., Constituting the Town of Fenton Zoning Board of Appeals, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 721

527 N.Y.S.2d 721

71 N.Y.2d 507, 522 N.E.2d 1019

In the Matter of Marcel ST. ONGE et al., Appellants, v. Jean DONOVAN, as Chairperson of the Town of Colonie Zoning

Board of Appeals, et al., Respondents.

In the Matter of Daniel DRIESBAUGH, Respondent, v. Joseph GAGNON et al., Constituting the Town of Fenton Zoning

Board of Appeals, Appellants.

Court of Appeals of New York.

March 31, 1988.

Arnold W. Proskin and Peter M. Fitzner, Albany, for appellants in the first above-entitled proceeding.

Susan Marie Tatro, Town Atty. (Joyce C. Tarantino, Albany, of counsel), for respondents in the first above-entitled proceeding.

Albert J. Millus, Jr., Binghamton, for appellants in the second above-entitled proceeding.

Holly A. Nelson, Albany, for respondent in the second above-entitled proceeding.

OPINION OF THE COURT

ALEXANDER, Judge.

In Matter of Dexter v. Town Bd., 36 N.Y.2d 102, 365 N.Y.S.2d 506, 324 N.E.2d 870, we held that conditions imposed on the grant of a variance must relate only to the use of the property that is the subject of the variance without regard to the person who owns or occupies that property. This fundamental principle was violated by the local zoning board in each case. Consequently, the order of the Appellate Division in St. Onge v. Donovan, 127 A.D.2d 880, 511 N.Y.S.2d 700, must be reversed, and the order of the Appellate Division in Driesbaugh v. Gagnon, 130 A.D.2d 906, 515 N.Y.S.2d 731, modified.

I.

A

In St. Onge v. Donovan, petitioners contracted to purchase a two-story house in the Town of Colonie for the purpose of operating a real estate business. Operation of such a business is not a permitted use in the residential district where the property is located. This property had been used exclusively for that purpose, however, by the previous owners pursuant to a variance granted by the local zoning board in 1977. The record demonstrates that the variance was granted on the basis of evidence showing that the applicants would suffer unnecessary hardship if they were not permitted to convert the property to commercial use. The variance contained a restrictive condition, however, that provided that the building was "to be used solely by the applicants and may be used only in connection with their existing real estate business". When petitioners sought site plan approval from the Town Planning Board in 1985 for the continued use of the property as a real estate office, the Planning Board denied approval, citing the fact that the variance granted in 1977 was only temporary, and that under the terms of the restrictive condition a transfer of the property would terminate the variance.

Petitioners appealed that determination to the Zoning Board of Appeals (Board), contending that the previous variance continued to be valid. They argued that they were entitled to use the property for their real estate business--a purpose expressly permitted by the variance--without further permission from the Town since the variance runs with the land, and the circumstances justifying the initial grant of the variance had not changed. The Board concluded, however, that the variance issued in 1977 was temporary, and that new evidence would be required to determine whether an extension would be justified. The Board decided that the entire matter should be reviewed de novo, and scheduled a hearing at which petitioners were invited to present evidence justifying the continuation of the variance. When petitioners failed to appear at the scheduled hearing, the Board denied the application to extend the variance, but did so without prejudice to a future application. This article 78 proceeding challenging the Board's determination ensued.

Special Term granted the petition to the extent of annulling the Board's determination requiring a de novo application for a use variance. The court held that a variance runs with the land and cannot be a right personal to the landowner, concluding that the restrictive condition in the 1977 variance is void, and that the variance thus is unconditional with no time limitation. The Appellate Division agreed with Special Term that the restrictive condition is void. It concluded, however, that "it does not necessarily follow that the condition should be ignored and petitioners be granted the benefit of an unconditional variance" (127 A.D.2d, at 881, 511 N.Y.S.2d 700). Accordingly, the court reversed Special Term, holding that the decision whether to grant a variance lies within the discretion of the Board and as it is not clear that the Board would have granted an unconditional variance had it known that it could not impose the condition, petitioners were required to apply for a variance de novo. The case is now before us pursuant to leave granted by this court.

B

In Driesbaugh v. Gagnon, petitioner owns and operates two automobile body repair shops in the Town of Fenton, both of which are located in agricultural-residential districts in violation of the local zoning ordinance. One of the repair shops, located along Route 369 in the Village of Port Crane, is a lawful prior nonconforming use; the other shop, located on Route 7, was purchased by petitioner in 1984, after the enactment of the zoning ordinance, and therefore is not a protected nonconforming use. In February 1985, petitioner was served with a "Notice of Violation" requesting that he cease operations at the Route 7 location. ¹ He then applied to the Town Zoning Board of Appeals (Board) for a use variance that would permit him to continue operation of the Route 7 shop.

Although the Board was concerned that any hardship petitioner suffered might be considered self-imposed ( see, Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86, 89, 92 N.E.2d 903) because he had purchased the property from one who had been operating an auto repair business in violation of the zoning ordinance, it nevertheless concluded that equitable considerations militated in favor of granting the variance. The Board found that petitioner apparently did not have actual knowledge that the previous owner was operating his business in violation of the zoning ordinance, that petitioner had invested considerable time and money in the premises and that the property's location--sandwiched between an interstate highway on the north and railroad tracks on the south--made it ill suited for agricultural purposes. The Board noted further that the property had been operated as an auto repair center for nearly 10 years without objection from the Town. ² Thus, the Board resolved to grant a variance, but imposed six conditions designed to prevent expansion of the nonconforming use.

Petitioner instituted an article 78 proceeding seeking to annul, as relevant here, two of the conditions--the fourth and sixth. ³ The fourth condition proscribed keeping more than two nonemployee vehicles outside the building during working hours, and the sixth condition required petitioner to phase out his operations at the Port Crane location by July 10, 1986. Petitioner contended that the former condition placed a limitation on the number of cars he could recondition in a given week, and thus threatened the economic viability of his business. He further contended that the latter requirement that he phase out his Port Crane business improperly interfered with a lawful nonconforming use.

Supreme Court, agreeing with petitioner, annulled the fourth and sixth conditions, denied the Board's request to remand the case for reconsideration of the variance and otherwise affirmed the grant of the use variance with the remaining conditions. The court concluded that the limitation on the number of nonemployee cars kept outside the building improperly regulated the conduct of the petitioner's business, not the use of the land, and the requirement that the Port Crane business be eliminated improperly sought to regulate the use of land that was not the subject of the variance. Additionally, the court found that this last condition constituted an unconstitutional taking of petitioner's nonconforming use of his Port Crane property. The Appellate Division affirmed for the reasons stated, and we granted leave to appeal.

II.

A

In Matter of Dexter v. Town Bd., 36 N.Y.2d 102, 365 N.Y.S.2d 506, 324 N.E.2d 870, supra, a corporation sought to have the Zoning Board of the Town of Gates rezone 12 acres of land from a residential to a commercial classification so as to permit the development of a retail shopping center. Although the zoning board granted the reclassification, it imposed several conditions, one of which provided that the " 'application for the construction of a retail supermarket by [the corporation] and related commercial structures, shall inure to the benefit of [the corporation] only, and for that specific purpose only' " ( Matter of Dexter v. Town Bd., 36 N.Y.2d, at 104, 365 N.Y.S.2d 506, 324 N.E.2d 870, supra ). The record revealed that during the hearing on the application, the Town Attorney indicated that the rezoning was to be used only by the corporation and, if for any reason the corporation decided not to proceed with the development, the property would automatically revert to its prior restricted status.

We invalidated the condition, holding that although a local zoning board may impose "appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or special permit", those conditions "must be reasonable and relate only to the real estate involved without regard to the person who owns or occupies it" ( Matter of Dexter v. Town Bd., 36 N.Y.2d, at 105, 365 N.Y.S.2d 506, 324 N.E.2d 870, supra ). We recognized that where a zoning change such as a variance or special permit is sought, there is ordinarily a specific project sponsored by a particular developer that is the subject of the application and that, as a consequence, attention generally focuses on the reputation of the applicant, the applicant's relationship to the community and...