Cowan v. Kern

41 N.Y. 591
CourtNew York Court of Appeals
DecidedApril 5, 1977
StatusPublished
Cited by4 cases

This text of 41 N.Y. 591 (Cowan v. Kern) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowan v. Kern, 41 N.Y. 591 (N.Y. 1977).

Opinions

Jasen, J.

The sole issue presented on this appeal is whether the Zoning Board of Appeals abused its discretion, as a matter of law, in denying petitioner’s application for a zoning variance.

In January 1970, petitioner Randolph Cowan purchased, at a tax sale, a substandard parcel of land in the Ronkonkoma Heights section of the Town of Smithtown. The parcel consists of three separate building lots and has a total land area of 7,500 square feet. The property is located in an "R-10” residential zone which authorizes the construction of single-family residences on minimum plots of 10,000 square feet. The land was originally divided into building lots by a map filed in 1911 and the . 10,000 square feet requirement was first imposed in 1949. In order to construct a residence on the Cowan property, a variance must be obtained to cover the total area deficiency, as well as deficiencies in the sizes of the proposed front and rear yards.

In January 1974, Cypress Homes, Inc., a builder and the prospective purchaser under a contract of sale, applied for the necessary variance, asserting that the Cowan parcel was the same size as other improved parcels on the same street. The Zoning Board of Appeals denied the application on February 26, 1974 and the contract of sale was rescinded.

The landowner, Cowan, then sought to obtain a building permit for the property, but the request was denied on the ground that a variance had not been obtained. Thus, on May 24, 1974, Cowan applied directly to the board for the necessary variance. His application was based on much the same contention as had been asserted in the earlier application by the builder: the fact that others had built on similarly sized properties and that a residence on his property would be in conformity with the character of the neighborhood. It was also claimed that denial of the variance would inflict "severe” economic hardship on the landowner.

On June 25, 1974, the board conducted a hearing on the Cowan application. The landowner submitted proof that, of [593]*593the 17 parcels on his block, nine parcels either met or exceeded the zoning requirements and that eight others did not. With respect to the eight substandard properties, two (the Cowan property and one other) had not yet been improved. Two substandard parcels had been improved after the board had granted requisite area variances. No evidence was introduced by petitioner to explain whether the remaining four improved but substandard properties were nonconforming uses constructed prior to the 1949 zoning ordinance or had been the subject of prior grants of variance or, finally, were constructed in plain violation of the zoning ordinance. The landowner did produce an analysis of the entire neighborhood, including several nearby blocks, which indicated that approximately 67% of the distinct parcels and approximately 77% of all the individual building lots in the area conformed to the zoning requirement. The applicant’s expert appraiser testified that the value of the real property, with the variance, would be approximately $7,500. Without the variance, the landowner would be able to sell the nonbuildable plot to the owner of an adjoining parcel for approximately $1,000. The landowner did not report the price he paid for the property at the tax sale.

Several persons appeared at the hearing in opposition to the variance application. The neighboring landowners testified that if Cowan were to build on his property, there would be less than the 100-foot distance between Cowan’s cesspool and their water wells, as required by the ordinance. This testimony was rebutted to some extent by a letter from the Suffolk County Department of Health to the effect that the Cowan cesspool could be located the necessary distance away from the neighboring wells and that any shortage in the distance between Cowan’s well and the neighbors’ cesspools could be compensated for by digging the Cowan well deeper. Unrebutted, however, was the testimony of one neighbor that all of the houses on substandard plots, save the two for which variances had been granted, had been constructed prior to the adoption of the 1949 area requirement. Hence, it was established that four of the six improved but substandard parcels were nonconforming uses.

On September 16, 1974, after the board had failed to pass upon his application, Cowan commenced an article 78 proceeding to compel the board to grant him a variance. At a regular meeting six days later, the board voted to deny the application. The board found that the character of the neighborhood [594]*594was substantially in accordance with the zoning requirements and that the applicant had failed to establish unnecessary hardship or practical difficulty. It was noted that "the applicant did not testify before the board as to what the loss of value in the premises would have been to him, since it was not revealed what the purchase price of the subject parcel was at the time applicant purchased same. Therefore, the board would also find that the testimony of applicant’s expert witness is incomplete and affords very little upon which this board can determine the loss in value to said applicant.”

Special Term awarded judgment to the board and dismissed the article 78 proceeding. The court ruled that "where, as here, a substandard parcel of property is purchased at a tax sale, the purchaser thereof cannot later claim that a denial of a variance for that property results in a severe economic hardship. The Court further finds that petitioner has failed to demonstrate that the character of the neighborhood is substandard.” Petitioner moved for renewal of the article 78 proceeding and for a hearing on the ground that the board had discriminated against him. The court granted the request for a hearing. The petitioner submitted proof that, on November 11, 1971, the board had granted area, front yard and rear yard variances to the owners of two parcels immediately adjoining petitioner’s. No other proof was put forward; instead, counsel for petitioner engaged in a lengthy oral argument. The court denied the motion for renewal on the ground that the petitioner had failed to establish his claim of discrimination. The Appellate Division, with one Justice dissenting, reversed the judgment of Special Term and directed that the board grant petitioner a variance. (51 AD2d 569.)

On appeal, petitioner presents two separate arguments in support of his claim for the variance. First, it is argued that the board, by granting variances to others similarly situated while denying relief to the petitioner, discriminated against him and, thereby, abused its authority. A second and distinct contention is that the petitioner had submitted ample proof that the application of the zoning ordinance to his property would result in economic hardship entitling him to a variance. We conclude that the record does not reveal either discrimination or abuse of discretion. We would, therefore, reverse the order of the Appellate Division and reinstate the judgment of Special Term.

As to the claim of discrimination, the law is well settled [595]*595that the mere fact that one property owner is denied a variance while others similarly situated are granted variances does not, in itself, suffice to establish that the difference in result is due either to impermissible discrimination or to arbitrary action. The controlling principles were stated by Judge Lehman, with his usual eloquence, long ago. "The mere fact that consents were granted to owners of premises somewhat similarly situated does not in itself show that consent was arbitrarily refused to this applicant.

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Bluebook (online)
41 N.Y. 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowan-v-kern-ny-1977.