St. Onge v. Donovan

522 N.E.2d 1019, 71 N.Y.2d 507, 527 N.Y.S.2d 721, 1988 N.Y. LEXIS 258
CourtNew York Court of Appeals
DecidedMarch 31, 1988
StatusPublished
Cited by77 cases

This text of 522 N.E.2d 1019 (St. Onge v. Donovan) 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
St. Onge v. Donovan, 522 N.E.2d 1019, 71 N.Y.2d 507, 527 N.Y.S.2d 721, 1988 N.Y. LEXIS 258 (N.Y. 1988).

Opinion

OPINION OF THE COURT

Alexander, J.

In Matter of Dexter v Town Bd. (36 NY2d 102), 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 must be reversed, and the order of the Appellate Division in Driesbaugh v Gagnon 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 [512]*512operating 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, [513]*513that "it does not necessarily follow that the condition should be ignored and petitioners be granted the benefit of an unconditional variance” (127 AD2d, at 881). 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 NY 86, 89) 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 [514]*514agricultural 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.

In Matter of Dexter v Town Bd. (36 NY2d 102, supra), a [515]

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Cite This Page — Counsel Stack

Bluebook (online)
522 N.E.2d 1019, 71 N.Y.2d 507, 527 N.Y.S.2d 721, 1988 N.Y. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-onge-v-donovan-ny-1988.