Swartz v. Wallace

• Decision Date: 22 April 1982
• Citation: 87 A.D.2d 926,450 N.Y.S.2d 65
• Parties: In the Matter of Andrew SWARTZ et al., Appellants, v. Donald WALLACE et al., Constituting the Board of Building and Zoning Appeals of the City of Albany, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 65

450 N.Y.S.2d 65

87 A.D.2d 926

In the Matter of Andrew SWARTZ et al., Appellants, v. Donald WALLACE et al., Constituting the Board of Building and Zoning Appeals of the City of Albany, Respondents.

Supreme Court, Appellate Division Third Department.

April 22, 1982.

Herzog, Nichols, Engstrom & Koplovitz, Albany (Grace Sterrett, Albany, of counsel), for appellants.

Vincent J. McArdle, Jr., Albany (Gary F. Stiglmeier, Albany, of counsel), for respondents.

Before MAHONEY, P. J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered September 5, 1980 in Albany County, which, inter alia, denied petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Board of Building and Zoning Appeals of the City of Albany.

In February, 1980, the owner of premises at 356 Madison Avenue in the City of Albany applied to respondent Board of Building and Zoning Appeals of the City of Albany (board) for a use variance relieving her of certain restrictions contained in the City of Albany Zoning Ordinance (ordinance). Her property was located in an area zoned under the ordinance against the use of any building for more than a two-family unit dwelling. However, having recently acquired the property, she desired to rehabilitate it as three apartments. The record before the board established that the subject premises had a history of use as a three-family unit dwelling which preceded the enactment of the ordinance, but that this use ceased when the building was completely vacant during all of 1975 and 1976. Under section 7.210 of the ordinance, nonuse for 12 months or more is deemed a discontinuance of any nonconforming use, which may not thereafter be re-established. The board refrained from granting the variance sought. It nevertheless approved the application by electing to waive the 12-month nonuser provision of section 7.210, citing as authority its decisions to the same effect in earlier, similar cases.

Petitioners, a nonprofit neighborhood improvement association and its chairman, brought a petition pursuant to CPLR article 78 to have the board's decision annulled and vacated. Special Term denied the relief requested, holding that the board had the power to waive the statutory period of discontinuance and could thereby authorize the restoration of the building into three-family units. The court further held, however, that the board's reliance merely upon documentation of the prior non-conforming use was an insufficient basis for the waiver, and, therefore, remitted the case to the board for redetermination. Petitioners have appealed Special Term's order.

A preliminary matter to be disposed of is whether the appeal is properly before this court. Since Special Term remitted the case to the board for further determination, no judgment has been entered in this article 78 proceeding. Therefore, the order of Special Term was not appealable as of right (CPLR 5701, subd. par. 1). Petitioners' proper mode of seeking review was to have sought permission to appeal (CPLR 5701, subd. ). However, in view of respondents' failure to move to dismiss the appeal on this ground, the significant involvement of the order in the merits of this proceeding, and the importance of the issues presented, which apparently involve the validity of a policy of the board reflected in a series of its prior determinations, the case is an appropriate one for us to grant permission to appeal sua sponte (cf. Matter of Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 440, 330 N.Y.S.2d 632 affd. 32 N.Y.2d 873, 346 N.Y.S.2d 532, 299 N.E.2d 897).

Turning to the merits, the basis of Special Term's determination upholding the authority of the board to waive the 12-month nonuser provision of section 7.210 of the ordinance was section 81 (subd. 4) of the General City Law, which provides, in pertinent part:

Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of any such ordinance, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use * * * of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

Special Term reasoned that if the appropriate criteria of "practical difficulties or unnecessary hardship" were met, the board was empowered to "vary or modify" the 12-month nonuser discontinuance of a nonconforming use contained in section 7.210 of the ordinance for the accomplishment of substantial justice.

Special Term did not cite, nor have respondents on appeal cited, any precedent for this interpretation of section 81 (subd. 4) of the General City Law. Section 81 has been described as an enabling statute authorizing a city to create a board of zoning appeals and to delegate to the board the power to relieve persons of the oppressive operation of a zoning law in particular instances of hardship (see, Anderson, New York Zoning Law and Practice §§ 17.13, 18.04, 18.06). Corresponding legislation for towns and villages has also been enacted (Town Law, § 267, subd. 5; Village Law, § 7-712). Regarding relief from the application of individually oppressive land and building use restrictions in local zoning laws, by longstanding interpretations of the "unnecessary hardship" language of the enabling statutes, the courts have held that the sole remedy is the granting of a use variance by the board of zoning appeals, but only upon findings,...