HomeMy WebLinkAbout2002-08-06 Tompki'S-C0UW , ty
DEPA,AR }MENtT'z'* PLANNING
t . I I Ea, sstt�COU Strdeet
Ithaca 7New York 14850
Edward C. Marx, AICP 4 - Telephone (607) 274-5560
Commissioner of Planning Fax (607) 274-5578
August 6, 2002
Mr. Richard G. Platt, Code Enforcement Officer
Town of Lansing, Ordinance Department
Box 186
Lansing, NY 14882
Re : Review Pursuant to §239 -1 , -m, and -n of the New York State General Municipal Law
Action: Use Variance, Crystal Mullenix Day Spa, N. Triphammer Road, Tax Parcel No. 37 . 1 -6-39
Dear Mr. Platt:
• This letter acknowledges your referral of the proposal identified above for review and comment by the
Tompkins County Planning Department pursuant to § 239 -1 , -m, and -n of the New York State General
Municipal Law. The Department has reviewed the proposal, as submitted, and has determined that it has no
negative inter-community, or county-wide impacts .
Other Technical Assistance Comments
In recent weeks, a number of use variances have been submitted to our office for GML §239 Review by
Tompkins County municipalities . We have noticed, in many cases, that the criteria for approval have not been
specifically addressed in the application . We would like to take this opportunity to remind you that when
requesting a use variance, that is, permission to establish a use of property not otherwise permitted in the zoning
district, the applicant must prove "unnecessary hardship . " To prove this, State law requires the applicant to
show all of the following:
( 1 ) that the property is incapable of earning a reasonable return on initial investment if used for any of the
allowed uses in the district (actual "dollars and cents" proof must be submitted);
(2) that the property is being affected by unique, or at least highly uncommon circumstances;
(3) that the variance, if granted, will not alter the essential character of the neighborhood; and
(4) that the hardship is not self-created.
If any one or more of the above factors is not proven, State law requires that the ZBA must deny the use
variance . For more information concerning these factors, please refer to the enclosed excerpt from the New
York Department of State ' s publication "Zoning Board of Appeals, James A . Coon Local Government
Technical Assistance Series, July ], 1994. "
Many New York municipalities have prepared use variance application packages that require the applicant to
specifically address each factor. The Board ' s resolution of approval also often includes specific findings
• detailing how each factor has been addressed by the applicant. Decisions supported by specific findings are
likely to be upheld if appealed to a New York State Court. If you would like copies of use variance applications
or resolutions used by other New York municipalities, please contact us .
Crystal Mullenix Day Spa
GML §239 Review
August 6, 2002
® Page 2 of 2
We hope you find this information helpful in reviewing this and future use variance requests . Please inform us
of your decision so that we can make it a part of the record.
Sincerely,
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Edward C . Marx, AICP
Commissioner of Planning
Ent. Excerpt from Zoning Board of Appeals
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Excerpt From: "Zoning Board of Appeals, James A . Coon Local Government Technical
Assistance Series, July 1 , 1994.
iVariances health, safety and general welfare of the people, it follows
that there are strict rules governing when exceptions may
be provided.
What is a variance ?
There are two types of variances - use and area - and we
As was noted in the introduction, various "safety valves" will take them up separately since the rules for each are
were built into the original zoning ordinance in 1916 ; different.
these include nonconforming uses and variances.
The use variance
It was thought that nonconforming uses would eventually
wither on the vine and die. But this has not been the case. The use variance has been defined as :
Neither has the procedure of granting variances been an
unqualified success. In fact, considerable doubt exists as one which permits a use of land which is
to whether it has been a success at all. A leading writer in proscribed by the zoning regulations. Thus, a
the field of zoning has observed: variance which permits a commercial use in a
residential district, which permits a multiple
" Although the variance remains in most of our dwelling in a district limited to single-family
zoning ordinances, its crude use to grant and deny homes, or which permits an industrial use in a
favors was subjected to substantial criticism, not district limited to commercial uses, is a use
only from the courts but from the professional variance" (Anderson, Zoning Law and Practice in
writers as well. The indictment has been that, far New York State, 3d. section 23 . 05 )
from being a safety valve, the variance is a handy
gimmick to permit leakage' from the certainty The Town Law and Village Law specifically incorporate
provided by the concept of districting" (Babcock, this concept into the language of the statutes. Town Law,
the Zoning Game( 1966)) . section 267( 1 ) and Village Law, section 7-712 ( 1 ) provide
Whether the variance has indeed proved to be a safety as follows:
valve, permitting relief where strict interpretation of the " ' Use variance ' shall mean the authorization by
provisions of a zoning law create a positive hardship, or the zoning board of appeals for the use of land for
whether it is just a "handy gimmick" used to circumvent a purpose which is otherwise not allowed or is
such laws for any - or no - reason, is open to question. prohibited by the applicable zoning regulations. "
The answer probably is both. Since the laws relating to
zoning affect individuals to a greater extent than perhaps Effective July 1 , 1994, General City Law, section 81 -
any other field of law, and are administered by fellow b( 1 )(a) sets forth identical language applicable to cities ,
citizens and neighbors, such administration is naturally
more prone to human error and failings. It is the purpose Early cases in New York State recognized, without
of the following portion of this memorandum to examine defining terms, that a zoning board of appeals had an
the variance procedure in New York State, with the hope important function in the granting of variances. In the
that such examination can help lift the veil of the case ofFordham Manor Reformed Church v. Walsh (244
uncertainty surrounding the role of the variance in the N. Y. 280), the court observed:
general scheme of zoning.
"There has been confided to the Board a delicate
In essence, a variance is permission granted by the zoning jurisdiction and one easily abused. Upon a
board of appeals so that property may be used in a manner showing of unnecessary hardship, general rules
not allowed by the zoning. It is only the zoning board of are suspended for the benefit of individual
appeals that has the power to provide for such exceptions owners, and special privileges established. "
from the zoning. And since zoning is meant to implement
the municipality's development objectives and protect the Subsequent judicial decisions interpreting "practical
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difficulty and unnecessary hardship" noted that " . . . the variance will not alter the essential character of
hardship and its occasion must be exhibited fully and at the locality. "
large , " and that a variance may be granted " . . . where the
burden of a general restriction creates a special hardship These rules have since become known by almost all
upon a particular owner (and) the grant of a special practitioners as the " Otto" rules for granting use variances .
privilege to him [can] in truth, promote equal justice "
( Young Women 's Hebrew Association v. Board of The court found that the petitioner was not entitled to the
Standards and Appeals of City of New York (266 N. Y. variance sou(yht, because the three grounds cited above
270) ; Levy v. Board of Standards and Appeals of City of had not been proven. Of greater importance is the fact
New York (267 N. Y. 347)) , that once the court had enunciated these rules, a great
element of certainty had been injected into this field of
Thus the courts, up until 1939,. had discussed general law. Cases since Otto have defined the necessary
criteria for the granting of variances. Although these early elements, such as "reasonable return , " "unique
decisions recognized the importance of the variance circumstances" and "essential character of the locality" as
procedure and its inherent limitations, it was in that year discussed below, but hardly a court decision in this area
that the landmark case of Otto v. Steinhilber (282 N . Y. has since been handed down that has not cited the rules
71 ) was decided, and laid down specific rules governing formulated in the Otto case.
the finding of unnecessary hardship in the granting of use
variances . In that case, the owner of a parcel of property Town Law, section 267-b(2)(b) ; Village Law, section 7-
which was located in both a residential and commercial 712 - b (2)(b) ; and, effective July 1 , 1994, General City
zone applied for a variance enabling him to use the entre Law, section 81 -b(3)(b) essentially codify the Otto rules,
parcel for a skating rink, which was permitted commercial and those of cases following Otto, specifically regarding
use. The lower court upheld the granting of the variance, the issuance of use variances in towns and villages :
which ruling was affirmed by the Appellate Division. The
Court of Appeals, the highest court in the State, reversed (b) No such use variance shall be granted by a board of
these holdings and in doing so, set forth the definitive appeals without a showing by the applicant that applicable
rules that are still followed today. Indeed, now , these rules zoning regulations and restrictions have caused
are codified in the State statutes . unnecessary hardship. In order to prove such unnecessary
hardship the applicant shall demonstrate to the board of
The court found that the object of a variance in favor of appeals that for each and every permitted use under the
property owners suffering unnecessary hardship in the zoning regulations for the particular district where the
operation of a zoning law " . . . is to afford relief to an property is located,
individual property owner laboring under restrictions to
which no valid general objection may be made. " After a ( 1 ) the applicant cannot realize a reasonable
discussion of the role of the zoning board of appeals in the return, provided that lack of return is substantial
granting of variances, the court found that a board could as demonstrated by competent financial evidence;
grant a variance only under certain specified findings : (2 ) that the alleged hardship relating to the
property in question is unique, and does not apply
"Before the Board may exercise its discretion and to a substantial portion of the district or
grant a variance upon the ground of unnecessary neighborhood;
hardship, the record must show that ( 1 ) the land (3 ) that the requested use variance, if granted,
in question cannot yield a reasonable return if will not alter the essential character of. the
used only for a purpose allowed in that zone ; (2) neighborhood; and
that the plight of the owner is due to unique (4) that the alleged hardship has not been self-
circumstances and not to the general conditions in created.
the neighborhood which may reflect the
unreasonableness of the zoning ordinance itself; It will be noted that the overall statutory test for the
and (3 ) that the use to be authorized by the issuance of use variances remains "unnecessary hardship"
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as the Court of Appeals held in the Otto case. the statutes
now define that term , using the three criteria based upon `appellate Division, which found "a complete lack of the
the Otto case, as they have been refined by court decisions requisite proof as to the first requirement. " (The land in
question cannot yield a reasonable return if used only for
over the years. The fourth requirement in the above
language is based upon court decisions after the Otto case, a purpose allowed in that zone, ) The court explained its
which held that a use variance cannot be granted where the Endings as follows :
unnecessary hardship was created by the applicant.
The Otto rules have been refined by court decisions over "a mere showing of present loss is not enough. In
order to establish a Iack of 'reasonable return ', the
the years. In towns and villages, the statutory rules for applicant must demonstrate that the return from
granting use variances in towns and villages reflect these the property would not be reasonable far each and
decisions. The best way to understand the rules is to
examine each in its turn, together with the court decisions every permitted use under the ordinance " (Matter
of Forrest v. Evershed, 7 N. Y. 2d 256) .
that shaped them . Moreover, an applicant can sustain his burden of
Proving lack of reasonable return, from permitted
Reasonable return uses only by "dollars and cents proof' . . . . (Id.).
first test for he issuance of a The "dollars and cents proof' rule was again enunciated in
The Otto case held that the
use variance was that he applicant must show to the board a Court of Appeals case which held that "a Landowner who
of appeals that "the land in question cannot field a seeks a use variance must demonstrate factually, b
y dollars and cents proof, an inability to realize a reasonable
reasonable return if used only fora atpthere mu tebe a d in return under existing permissible uses " (Fayetteville v,
that zone. " It is clear that this means h
demonstration that the zoning regulations impose Jarrold, 53 N. Y. 2d 254) .
requirements so severe that they amount to a"confiscation " of the property in question (See amount
t o f Nor, the cases have held, does the fact that an individual
The Law oand Planning, 4th P , desires to use he property for other, more profitable
38 . 02 ; Williamsonv. Town Of Oyster Bay, 32 N. Y, 2d 78).
Purposes constitute a hardship (Goldstein v. Board of
$) Appeals of Oyster Bay, 102 N. Y. S . 2d 922) or that a
different use may be more profitable. The salient inquiry
The mere fact that the roe is whether the use allowed by the zoning ordinance is
May o nina Yielding a reasonable return (Crossroads Recreation v.
reduction in the value of property because of he z regulations, or the fact that another permitted use may Broz, 4 N. Y. 2d 39).
allow the sale of the property for a better price, or permit
a larger profit, does not justify the granting of a variance Town Law, section 267-b 2
on the grounds of unnecessary hardship
712 - b 2 b ' ( )(b); Village Law, section 7-
{ )( ) , and, effective July 1 , 1994, General City
Transit Corp. v. y { P {Rochester Law, section 81 -b 3 b
P Crowle 205 Misc. 933) citing Youn O{ ), Provide that the first test for the
Women 's Hebrew Association v. Board of Standards o issuance of a use variance is that the applicant must
City of New York (266 N. Y. � 70 • .f demonstrate to the board of
Standards and A ), Thomas v. Board of appeals that:
Standards
Appeals f City of New York (290 N. Y.
"the applicant cannot realize a reasonable return,
provided that lack of return is substantial as
It has been held that only by actual "dollars and cents demonstrated by competent financial evidence. "
proof' can lack of reasonable return be shown. In the case
Of Everhart v. Johnston 30 A In' essence, his is a restvarianceatement, in the State statute, of the
was granted to the owner of apProperty in 608a> e residential rules just discussed that have been established b
zone to enable him to house an insurance and real estate y the
courts over the years since the Otto case was decided.
agency. A State Supreme Court annulled the granting of At this
point be good to mention briefly
the variance, which determination was affirmed by the ro erty
,
it would
P p use that is especially hard hit by the reasonable
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® return requirement. That is a nonconforming use, upon Unique circumstances
which an especially heavy burden falls when it must be
shown that the user cannot derive a reasonable return from The second test that an applicant for a use variance must
any permitted use. An applicant who maintains a adhere to under the Otto rule, is that his plight is due to
nonconforming use must not only show that all permitted unique circumstances and not to general neighborhood
uses will be unprofitable, but also that the nonconforming conditions. As a leading text writer has observed:
use itself cannot yield a reasonable return. In a case in
which the owner of a nonconforming gasoline station "Difficulties or hardships shared with others go to
applied for a variance, the court pointed out this additional the reasonableness of the ordinance generally and
burden. will not support a variance relating to one parcel
upon the ground of hardship" (Rathkopf, The
"In order to demonstrate hardship, the petitioners Law of Planning and Zoning, 4th ed. pg. 38-33 ).
had the burden of showing that ` the land in
question cannot yield a reasonable return if used The Court of Appeals , in the early case of Arverne Bay
only for a purpose allowed in that zone. ' Since Construction Co. v. Thatcher (278 N.Y. 222), had before
the operation of their gasoline station, as it it a case involving the owner of land in a district classified
presently exists, was a nonconforming use which as residential, in an area almost completely undeveloped,
was suffered to continue because it had been who sought a variance enabling him to operate a gasoline
devoted to such a use before the prohibitory station. The Court of Appeals held a variance should not
zoning ordinance took effect, it was a use which have been granted. The court stated:
was allowed in that zone. ' Business ` A' uses,
such as retail stores generally, real estate offices, "Here the application of the plaintiff for any
etc. , were also, of course, ` allowed in that zone. ' variation was properly refused, for the conditions
Hence, the petitioners had the burden of proving which render the plaintiffs property unsuitable
• that their property could not yield a ` reasonable for residential use are general and not confined to
return ' if used for a gasoline station (as it plaintiffs property. In such case, we have held
presently exists) or for any business ` A ' use that the general hardship should be remedied by
(retail stores generally, real estate offices, etc.) " revision of the general regulation, not by granting
(Crossroads Recreation v. Broz, 4 N. Y. 2d 39). the special privilege of a variation to single
owners . "
This finding of "uniqueness" has also been referred to by
the Court of Appeals as that of "singular disadvantage " by
the virtue of a zoning ordinance. In the case of Hickox V.
Griffin (298 N.Y. 365) , the court stated:
"There must at least be proof that a particular
property suffers a singular disadvantage through
the operation of a zoning regulation before a
variance thereof can be allowed on the ground of
unnecessary hardship'. "
In the recent case of Douglaston Civic Association, Inc.
v. Klein (51 N.Y .2d 963 ), the Court of Appeals discussed
the "unique circumstances " requirement and held that the
property was indeed unique, justifying the grant of the
variance :
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"Uniqueness does not require that only the parcel character of the locality. Because one of th
Of land in question and none other be affected by purposes of zoning is to adopt reasonable regulations
• the condition which creates the hardshi e basic
is required is that the hardship condition be not so accordance with a comprehensive plan, it follows that
generally applicable throughout the district as to changes which would disrupt or alter the character of a
neighborhood, or a district, would be at odds with the very
require the conclusion that if all parcels similarly purpose of the zoning ordinance itself. Thus, in the c
situated are granted variances the zoning of the of Sepulchre Cemetery v. Board o A
district would be materially changed. What is case
involved, therefore, is a comparison between the Greece (271 A f PPeals of Town of
App. Div. ce t e nonprofit cemetery
entire district and the similarly situated land. " corporation sought a variance to enable it to establish a
cemetery where such use was not provided for in the
A use variance was properly granted in Douglaston where applicable zoning ordinance. The court conceded the fact
was
the land in question was shown to be swam that the area surrounding the pro e in though other land in the vicinity shared that characteristics sparsely settled and practically undev iopeduestion but upheld The uniqueness requirement must be addressed in he the action of the board denying the variance sought. The
context of the nature of the zone in general. Such a COS recognized the right of the zoning board of appeals
to take notice of the fact that a residential building boom
relationship makes sense when it is remembered that a
variance should not be used in lieu of a legislative act. A could reasonably be expected in a few years, and that the
Proposed cemeteryParcel for which a variance has been granted, therefore, residential devel pm nitdofuthe sectiony interfere with the
need not have physical features which are peculiar to that
Parcel alone (as required in Hickox, above) . On the other In another case, a transit corporation
hand , the hardship caused by physical features cannot rP sought to lease land
prevail throughout the zone to such an extent that the in a residential zone, used as a bus loop, to an oil
problem should be addressed by legislative action such as company, which planned to erect a gasoline station. The
a rezoning. court found that the zoning board of appeals properly
refused to grant a variance, because the variance, if
This second test of "uniqueness " is now part of the State rriights of owners of other property, and that interfere with the zoning pthe and the
statutes governing the grant of use variances by town and before the board was sufficient
village zoning board of appeals, Town Law, section 267- evidence
ent to sustain its findings that
b(2)(b); Village Law, section 7-712-b(2)(b); and, effective the requested use, if permitted, " . . . would alter the
July I , 1994, General City Law, section 81 -b 3 b essential residential character of the neighborhood"
Provide that the second test that an applicant must meet is (Rochester Transit Corp. v. Crowley 205 Misc. 933).
to demonstrate to the board :
In the case of Matter of Style Rite Homes, Inc. v. Zoning
"that the alleged hardship relating to the property Board of Appeals of the Town of Chili (54 Misc. 2d 866),
P the plaintiff corporation owned property in a one-family
in question is unique, and does not apply to a residential district, part of which was appropriated b
substantial portion of the district or P y the
neighborhood. " State for highway purposes. The plaintiff then applied for
A variance permitting it to use its remaining land for a
This is a restatement of the rule enunciated by the Court of garden apartment development. In upholding the decision of the zoning board of appeals denying the variance, the
Appeals in the Otto case, as later refined in the court held that:
Douglaston case discussed above .
Essential character of locality "Finally, it seems clear that the plaintiffs
proposed use of the property for a 604amily
The third test that must be met pursuant to the Otto rule multiple dwelling complex is incompatible with
before a variance may properly be granted, is that the use the over-all plan and policy for development of
to be authorized by the variance will not alter the essential the town and would create conditions distinctly
different from those existing in the locality by
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® adding problems incident to an increase App . Div. 2d 608 ; Henry Steers, Inc. v.
in population density as well as Rembaugh , 284 N .Y. 621 ) .
unquestionably altering the essential
character of an otherwise residential The self-created hardship rule has now been codified in
neighborhood developed in reliance on Town Law, section 267-b(2)(b) ; Village Law , section 7-
the stability of the ordinance. " 712 - b ( 2)(b) ; and effective duly 1 , 1994, in General City
Law, section 81 -b(3 )(b).
This third test is now part of the State statutes. Town
Law, section 267-b(2) (b) ; Village Law, section 7-712- A final word on use variances
b(2)(b) ; and, effective July 1 , 1994, General City Law,
section 81 -b(3)(b), provide that the third test for the The rules laid down by the Otto case (and the rules set
issuance of a use variance is that the applicant must forth in the statutes as discussed above) are requirements.
demonstrate to the board : They must be used by zoning boards of appeals in
reviewing applications for use variances. Furthermore, the
" that the requested use variance, if granted, will board must find that each of the tests has been met by the
not alter the essential character of the applicant.
neighborhood;" .
The board must also consider the effect of the variance on
This codifies the third test required by the Otto case. the zoning law itself. As one court said,
Self-created hardship " Thus , the statute makes plain that both the
general purpose and intent of the ordinance,
While it was not a factor in the Otto decision, there is one reflecting the policy of the legislative body, and
more important consideration that must be noted before the special case of the individual property owner,
leaving the discussion of use variances . That is the so- reflecting a practical difficulty or unnecessary
called rule of "self-created hardship . " It is well settled that hardship , must be considered by the board of
a use variance cannot be granted where the " unnecessary appeals in varying the application of the
hardship" complained of has been created by the ordinance " ( Van Deusen v. Jackson , 35 App .
applicant, or where she/he acquired the property knowing Div . 2d 58 , affd 28 N . Y . 2d 608) .
of the existence of the condition he now complains of. In
The statutes all provide that in granting variances, boards
the case of Clark v. Board of Zoning Appeals (301 N . Y .
must grant the minimum variance necessary and must at
86) , the Court of Appeals, before proceeding to discuss
the grounds necessary for the granting of a variance, noted the same time preserve and. protect the character of the
that the property in question was purchased to be used as neighborhood and the health, safety and welfare of the
a funeral home in a district where such use was not community (Town Law, section 267-b(3)(c) ; Village Law,
permitted under the zoning ordinance . The court observed section 7-712 -b(3 )(c) ; and General City Law, section 8 1 -
that:
b(3) (c) .
"Nevertheless [plaintiffJ . . .purchased the lot, then In addition, the statutes expressly allow boards of appeals
applied for the variance . We could end this to impose reasonable conditions when granting variances.
opinion at this point by saying that one who thus Such conditions must be directly related to and incidental
knowingly acquires land for a prohibited use , to the proposed use of the property, or the period of time
cannot thereafter have a variance on the ground of the variance is to be in effect . The conditions must be
' special hardship' . " (For similar holdings see " consistent with the spirit and intent" of the zoning
Holy Sepulchre Cemetery v. Board of Appeals of regulations, and would be imposed for the purpose of
Town of Greece, 271 App . Div. 33 ; Thomas v. minimizing any adverse impact which the granting of the
Board of Standards and Appeals of City of New variance might have on the neighborhood or the
York, 290 N . Y . 109 ; Everhart v. Johnstown , 30 community. (Town Law , section 267-b(4); Village Law,
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• section 7-712-b(4) ; General City Law , section 81 -b(5) .)
This power to impose conditions is a codification of the
well-settled rule that boards of appeals have the inherent
power, when granting variances, to impose appropriate
and reasonable conditions to protect the neighborhood
(lWatter of St. Onge v. Donovan , 71 N . Y . 2d 507 ; Pearson
v. Shoemaker, 25 Misc . 2d 591 ) .
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