Village of Bronxville v. Francis
| Decision Date | 12 March 1956 |
| Parties | Application of The VILLAGE OF BRONXVILLE, and of James D. Miller, Walter H. Free, Horace G. Hitchcock, Ronald B. Swinford and Warren Clark, as the Board of Trustees of the Village of Bronxville, Petitioners-Respondents, v. Clarence FRANCIS, Frank A. Hutson, Jr., Randolph Evans, Franklin S. Wood and Frederick G. Frost, Jr., as the Board of Appeals of the Village of Bronxville, Respondents, Pondfield Road Company, Inc., The Gramatan Company Incorporated of Bronxville, New York, and The Gramatan National Bank and Trust Company of Bronxville, Intervenors-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Frederick P. Close, White Plains, and Allan R. Campbell, Bronxville, for intervenors-appellants.
William W. Owens, New York City, and Anthony B. Kuklin, Pelham, for petitioners-respondents.
Before NOLAN, P. J., and WENZEL, UGHETTA, HALLINAN and KLEINFELD, JJ.
This is a proceeding under article 78 of the Civil Practice Act and the Village Law to review the determination of the board of appeals of the Village of Bronxville, which granted a variance in the terms of the local zoning ordinance so as to permit the construction of a bank building containing floor area in excess of the amount permitted by the ordinance. The ordinance permits total floor area not to exceed one and one-half times the area of the lot. In effect the variance, as granted, relieved the intervenors from compliance with the 'one and one-half rule' upon compliance with other imposed conditions. The board found that there were practical difficulties and unnecessary hardships in conforming to the ordinance in that a new conforming building would not provide a reasonable return on the fair value of the land and the building, that the age and condition of the present buildings prevented a reasonable return during the brief remaining period of their usefulness, that there is a consequent need for replacement, and that these facts make the hardship peculiarly severe and unnecessary.
At Special Term the board's determination was annulled on the ground that there was no proof of 'unique hardship'.
The Bronxville Building Zone Ordinance (art. 12, § 7), in common with almost every zoning statute (cf. N. Y. City Zoning Resolution, §§ 7 and 21; Village Law, § 179-b), authorizes its local board to grant a variance either (1) upon proof of practical difficulties or unnecessary hardship, or (2) in its discretion, without proof of practical difficulties or unnecessary hardship, in specifically enumerated cases and under specific conditions. Reed v. Board of Standards and Appeals, 255 N.Y. 126, 134-135, 174 N.E. 301, 303. The ordinance under consideration does not use the term 'unique hardship'.
In Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851, 853, the factual elements necessary to establish unnecessary hardship were defined as follows: 'Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.'
The use of the word 'unique' in the Otto opinion seems to have resulted in a frequent misinterpretation to the effect that there is a requirement for a showing of 'unique hardship'. The phrase used in the Otto case is 'unique circumstances' and those circumstances are but one of the elements which make up an unnecessary hardship. The phrase 'unique circumstances' is not to be construed as 'unique hardship', as though there were a requirement for proving something more severe than an unnecessary hardship.
This court has consistently held that the above-quoted language in the Otto opinion is intended to apply to a variance in the use of premises and not to a variance in the area upon which a building may be constructed. The language quoted above from the Otto opinion shows in itself that a use case was under discussion, and other...
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